Thursday, 27 October 2016

What is the effect of Kenya’s Counter-Terrorism Measures? Are they Viable? Kenyan National Security Law


Kenya being the geo-political hub of East Africa has experienced its fair share of benefits and suffering. The benefits range from ease of trade and many more however the main suffering for the above thematic concern is terrorism.
Kenya was caught up in the cold war and chose to align with the west as a result the west’s enemies view Kenya as a potential enemy by virtue of being an ally to the west. This is the inter-link that came about in 1998 when a group of terrorists bombed the U.S Embassy in East Africa killing hundreds, a majority of whom were Kenyans[1]. Following the bombing the U.s Government in a bid to enhance tougher counter terrorism measures sought to limit the fourth amendment of their constitution, which related to the search and seizure requirements. This was done so in the Second Circuit’s decision in the case of re Terrorist Bombings of United States Embassies in East Africa[2]. The judges ruled that a warrant in a foreign jurisdiction would be a dead letter and as such the U.S government did not need a warrant to arrest U.S citizens in foreign land.
Counter Terrorism measures consist of two strategies; there is soft counter terrorism: which entails fighting it peacefully and in a friendly manner such as offering amnesty to terrorists who surrenders and operational counter terrorism, this involves using security agencies such as the anti-terror police unit[3]. In Kenya both measures have been used
Following the entrance of Kenya into Somalia under the Wing of African Union Mission in Somalia (AMISOM), a group known as Al Shabaab started attacking Kenya calling for their withdrawal from Somalia. It started with bus attacks, club attacks and mall attacks. The Government of Kenya in a Kneejerk reaction rounded up all Somalis and put them in enclosed camps at various stadia pending deportation back to Somali. it was believed that the local Somali community was aiding Al Shabaab in their terroristic endeavors. Human rights organizations led by Kituo cha Sheria quickly moved to the Court. The Constitutional and Human Rights Division of the High Court ruled in the Kituo Cha Sheria and others v the Attorney General[4]that the government directive that instructed the rounding up and encamping of the Somali community was null as it violated the rights to fair administrative action, movement, dignity and to livelihood. The Court balanced the national security concerns vis. a vis. Article 24 of the Constitution that is on the limitation of rights. This begs the question with such a robust human rights framework is it possible for the courts to capture a terrorist without overlooking their human rights? The Problem also lies with shoddy investigation and prosecution of terrorist crimes. Picture the scenario of the decision in Richard Baraza Wakachala v Republic[5], a man was arrested near the Kenya Somali border but on the Kenyan side when taken to court he was charged with travelling to a terrorist designated country through an exit point without consulting the immigration officer, this was under section 30 of the Prevention of terrorism Act, whereas the judge held that there is no such offence under section 30 all the offense there related to training and instruction for terrorism purposes. Further the prosecution never attached the gazette notice that declared Somali a designated terrorist country.
What is the legal Framework? Before 2012 there was the Suppression of Terrorism Bill 2003. 2012 saw the passing of the Prevention of Terrorism Act 2012. The Act was consultative in nature and abided by the Constitutional safeguards of civil liberties. A brief analysis follows;
The 2012 Act seeks to define acts of terrorism[6] as opposed to terrorism, which is subject to many different interpretations based on one’s cultural background. This helps us to move away from theoretical underpinnings that eventually pose practical problems[7].
The 2012 Act is extra-territorial, its provisions not only apply to terrorists that commit crimes to Kenyans in Kenya but also to terrorist activities that are planned outside Kenya and committed in Kenya[8].
The 2012 Act gives the scope of terrorist offences to include financing, recruitment, training, preparation, for each of these offences the Act provides hefty penalties ranging from life imprisonment to imprisonment of up to 20 years[9]. It is to be noted that there is no death penalty as it is unconstitutional and that terrorists are normally ready to die as such it would not be the most proportionate punishment
Under the 2012 Act the Inspector General may recommend to the cabinet secretary specific entities that are related to terrorism activities and when such an entity is gazette as such its accounts and activities are frozen. The Inspector general gazetted Al Shabaab as a terrorist entity alongside other 85 individuals and organizations that were presumed to be related to Al Shabaab. The organizations moved to court and in the decision of Muslims for Human Rights (Muhuri) & another v Inspector-General of Police & 4 others[10] the court issued a conservatory order to the Inspector general preventing him from forwarding the names of the organizations and individuals to the cabinet secretary until the petition is determined.
When it comes to the matter of arrests and searches, the Act complied with the criminal procedure code where an officer wishing to make an arrest may in the absence of a warrant rely on a reasonable and probable suspicion that the suspect is about to or has committed a crime. This saves the time that could be wasted while trying to seek a warrant of arrest.
Intelligence agencies are allowed to intercept communication for the purpose of Intel collection subject to the approval of the high court[11]. The high court will balance the right to privacy as against national security and come up with a wise decision. In the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others it was held that the intercepting of communications subject to the approval of the court is totally compliant with Article 24 of the Constitution which deals with limitation of rights.
Even with the Prevention of Terrorism Act, terrorism still thrived. The government sought to come up with an amendment. The Security Laws Amendment Act, it sought to do a lot of things many of which were ruled as unconstitutional by the court for example, certain provisions sought to limit the freedom of expression of the media from airing gory images, intercepting communications, rights to a fair trial etc. The court balanced the interests of the public as against national security interests and limited the right to privacy, expression but to a limited degree. It however upheld the rights to a fair trial that was threatened, rights to bail and bond, and the principle of non-refoulment[12].   
In summary Kenya has applied both soft and operational counter-terrorism measures but terror still remains a real threat. The reason is that laws need to enforced strictly and in the presence of corruption it defeats the purpose. As such Kenya must fight corruption so as to create an enforcement that is rigid, strict and effective. There is no need to stricten border laws or even build a wall whereas one can bribe their way through. Apart from that there have been numerous complaints stating that the anti-terror police unit are trigger happy and kill and maim many blankly citing that they are terrorist[13]. They are also known to target a particular section of the community.
We must first deal with the devil within before we can defeat the outer devil.


Bibliography
Laws
1.      Constitution of Kenya 2010
2.      Suppression of Terrorism Bill 2003
3.      Prevention of Terrorism Act 2012
4.      Security Laws Amendment Act 2014
Books/Articles/ Theses
1.      C. Mwazighe, Legal Responses to Terrorism: A Case Study of Kenya (Theses, Naval Postgraduate School, 2012)
Cases
2.      Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others 2015
3.      Muslims for Human Rights (Muhuri) & another v Inspector-General of Police & 4 others
4.      Richard Baraza Wakachala v Republic
5.      Re Terrorist Bombings of United States Embassies in East Africa
6.      Kituo Cha Sheria and others v the Attorney General



[1] Library C, ‘1998 U.S. Embassies in Africa Bombings Fast Facts’ CNN (3 August 2016) <http://edition.cnn.com/2013/10/06/world/africa/africa-embassy-bombings-fast-facts/> accessed 24 October 2016
[2] 552 F.3d 157 (2d Cir. 2008),
[3] Raisa, ‘Kenyans Call out Anti-Terrorism Police Unit’ (Al Jazeera, 24 August 2015) <http://stream.aljazeera.com/story/201508241439-0024970> accessed 24 October 2016
[4] Petitions No. 19 and 115 of 2013, H.C, Milimani, (Majanja J)
[5] Criminal Appeal no 100 of 2015, H.C, Garissa, (Dulu J)
[6] Prevention of Terrorism Act 2012 Section 2(1)(a)
[7] C.Mwazighe, Legal Responses to Terrorism: A Case Study of Kenya (Theses, Naval Postgraduate School, 2012) pg 73
[8] Section 21, Prevention of Terrorism Act 2012
[9] C.Mwazighe, Legal Responses to Terrorism: A Case Study of Kenya (Theses, Naval Postgraduate School, 2012) pg 89
[10] Petition 19 of 2015, H.C, Mombasa (Emukule J)
[11] Section 36, Prevention of Terrorism Act
[12] Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others 2015
[13] Human Rights Watch, ‘Kenya: Killings, Disappearances by Anti-Terror Police’ (4 September 2014) <https://www.hrw.org/news/2014/08/18/kenya-killings-disappearances-anti-terror-police> accessed 24 October 2016.
Posted by at No comments:

WHAT ARE THE CHALLENGES AND DIFFICULTIES FACED IN THE PROSECUTION OF TERRORIST CRIMES? National Security Law


In 2008 a workshop was held by the RAND Centre for Global Risk and Security[1] in Washington DC their main thematic concern was the topic above. This workshop brought together different experts in the field of security, these included intelligence officers, lawyers, prosecutors and judges.
All of these experts engage in the prosecution of terrorists and face difficulties at their respective stages in the prosecution.
Problems that face the Intelligence Agencies and Police
1.     Overload of Electronic Data. Security agents may in an hour receive enough electronic data that may fill up a library. It is therefore difficult to separate the wheat from the chaff , the meaningful signals from the background noise[2].
2.     The level of secrecy that is employed by modern terrorists has increased and become sophisticated[3].
3.     Lack of co-operation between intelligence officers and the police service, more often than not intelligence officers and the police do not carry out a common goal. For intelligence officers the goal is to detect prevent and disrupt in order to get more intelligence, they therefore at times do not come up with evidence that is admissible in a court of law but evidence that is aimed at detecting patterns and more intelligence. The goal of the police is to arrest for prosecution. Naturally there exists tension between police work and spy craft[4]
4.     The police and intelligence officers often find it excruciatingly difficult to determine when to foil an attack. At times early arrests leads to the escape of many and the evidence collected may be of a circumstantial nature which may not be beyond reasonable doubt.
5.     The evidence that is collected from prosecution of a terrorist is often sensitive if not classified as such making it public knowledge has a deleterious effect.
Prosecutors Perspective
Prosecutors normally have difficult choices in conducting trials and maintaining proper standards of conduct[5]. It all matters which context the trial is being conducted in.
In a Specialized Terrorist Tribunal:
6.     There is normally a host of jurisdictional and evidentiary impediments that limit prosecutors to reach only a small fraction of success, and it is trite law that jurisdiction is everything in a case[6]
7.     Even where Jurisdiction is not an issue the evidence is rarely admissible let alone fulfill the burden of beyond reasonable doubt[7]
8.     A public and open criminal justice system may not offer adequate protection to classified information that is necessary to both prosecute and defend in a terrorist trial[8]
9.     Criminal prosecution have a low deterrent effect on terrorists, if such an effect exists at all[9]
Prosecution within the normal criminal courts;
10.                       There exists a difficult decision for a prosecutor to make between when to disrupt a terrorist plot this is between the need to collect as much evidence and intelligence as possible as against the need to enhance public safety.
11.                       In some jurisdictions there exists the problem of ascribing criminal liability to a terrorist before the actual attack has occurred. Many jurisdictions have enacted legislation that curbs this.
International Lawyers
12.                       There exist problems of ascribing criminal jurisdiction over terrorists that have been captured miles away.
13.                       An international lawyer will experience difficulty of treating the terrorist as a military target or to apprehend and try them.
14.                       International law gives little guidance on how to try suspected international terrorists. What legal framework should be used? Should it be Nuremberg like trials[10] or should we use court martial[11] which are intended for soldiers that are in a particular chain of command?
Judges Perspective:
15.                       Criminal courts have a presumption of open and public justice[12] as such this will not protect classified information that is needed in the prosecution of terrorists.
16.                       There exist procedural and evidential problems especially where information has been gotten illegally[13].



[3] C. Watson, Close-up. Terrorism, Glyndell Udanese Publishers, 2010, pg 90
[5] R. Chesney, Optimizing Criminal Prosecution as a Counterterrorism Tool, 2008,  pg 18: See also https://www.brookings.edu/wp-content/uploads/2016/06/1219_prosecution_chesney.pdf (Accessed on 10/3/2016)
[6] Owners of MV ‘Lillian S’ v Caltex Oil Kenya, 1989 Civil Appeal no 50 of 1989
[7] D. Bonner, Executive Measures, Terrorism and National Security: Have the Rules of the Game Changed?, Ashgate Publishers, 2007, pg 36
[8] A. Lynch,  Inside Australia's Anti-Terrorism Laws and Trials, Newsouth Publishing, 2014, pg 88
[9] R. Clutterback, Terrorism, Drugs & Crime in Europe After 1992, Routlege Publishers, 1990, pg 47
[10] G. Ginsburg, Nuremberg Trials and International Law, Martinus Nijhoff Publishers, 1990, pg 240
[11] D. Mundis, The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts, The American Journal of International Law Vol. 96, No. 2 (Apr., 2002), pp. 320-328
[12] M. Dirk, The Oxford Handbook of Criminal Law, Oxford University Press, 2014, pg 79
[13] D. Mundis, The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts, The American Journal of International Law Vol. 96, No. 2 (Apr., 2002), pp. 320-328
Posted by at No comments:

Principles and Methods of Public Procurement, Kenyan Public Procurement Law

a)      Enumerate FIVE procurement methods prescribed under the Public Procurement Act 2015 and outline one circumstance appropriate for the use of each procurement method identified.                                                                                                         
Open Tendering
Pursuant to the Public Procurement Act, Open tendering is the most preferred method of procurement subject to the circumstances of a particular case[1]. Open tendering is suitable for good, works and services whose minimum expenditure is six million Ksh (6,000,000)[2]. The Procuring entity shall take all the reasonable steps to advertise the tender to the public[3]. These includes; the newspapers, government portals or a conspicuous place at the procuring entity’s premise[4]. After advertising the procuring entity shall provide the relevant tender documents on their website[5]
Two Stage Tendering
A procuring entity by virtue of complexity, inadequate knowledge or advancements in technology may use this method of tendering. This may be because it may not be feasible or rather effective for the procurement entity to formulate specifications of the goods, service or works required[6].
The Procedure of this method is that the tenderers in stage one will submit their proposals without a tender price[7]. Based on their submissions the procuring entity shall shortlist the preferred tenderers. In stage two, the shortlisted tenderers will submit a final tender with prices based on the specifications of the procuring entity[8]. The procuring entity may consult experts[9]. The Procurement entity may also modify the specifications as long as the same is communicated to the tenderers in the invitation to submit final tenders.
Design Competition Tendering
When a procuring entity wants to get the best architectural design, physical planning or any other scheme, engineering or graphic design it may use this method[10] . The procedure is that the procuring entity should invite design proposals from the public[11]. The preparation for the invite must state; name and address of procuring entity, description of technical functions and an explanation where the tenders will be delivered and opened etc. After the submission of proposals by the tenderers, an evaluation committee will assess the designs and the top 3 designs will receive a prize as honorarium[12]
Restricted Tendering
A procuring entity may use this form of tendering process where the cost and time required to assess a large number of tenders will be disproportionate to the value of the goods[13]. Restricted tendering is when the tender will only be open to a few select suppliers and not the broad public in general.
Direct Procurement
As long as the purpose is not to avoid competition, a procuring entity may use this form of procurement. This mode of procurement is suitable when the circumstances are such that there are only a few set of suppliers that can deliver the specific goods that are required[14].

b)      One of the key objectives of the Law is to achieve value for money in public procurement. Explain the term “value for money” in the context of public  procurement and identify any THREE ways through which the Act ensures that the value for money objective is achieved.                                                                                     
Value for money is the concept used to assess an organizations capacity to obtain the maximum benefit from the goods, services or works that are acquired. It must take into account a complex mix of factors which include quality, cost, use of resources and fitness for the purpose. It is meant to ensure no gold plating. It calls for a balance between economics, efficiency and effectiveness. It is a critical element in the awarding of tenders which is meant to ensure the lowest cost which fits the purpose envisaged by the procuring entity.
Section 139 of the Act covers the variations of procurements contracts. It states that no variation of a procurement contract by the government may raise the price upwards within the first year of performance. This ensures that within the first year of performance the government will get the value for their money fully. This is a way through which the Public Procurement Act enhances the concept of value for money
Section 3(h) of the Public Procurement Act states that a guiding principle of public procurement is the maximization of the value for money.
Section 102(b) of the Public Procurement Act states that restricted tendering will be preferred as a method of procurement where the cost associated with processing a large number of tenders is disproportionate to the value of the goods being acquired.
c)      Analyze any FOUR other objectives of the Kenyan Government public procurement policy          and how their achievement could sacrifice the value for money objective                  

Probity and Integrity is the prevention of corruption in the procurement. It has two aspects; it is meant to prevent actual corruption and secure the appearance of probity. Probity may affect value for money when the need to ensure probity requires finances that are disproportionate to the value of goods being acquired. As such necessary probity measures and vetting would if applied sacrifice the value for money of the goods that are being obtained
Accountability, As members of the public we must make sure that the government is responsible with the public money as in essence it is our money. As such the government may be required to publish information relating to procurement matters and install accountability mechanism. At times this mechanisms may be too costly as compared to the value of the goods being acquired in a specific procurement, in this essence it sacrifices value for money.
Equal treatment of Providers, This objective calls for the just and unbiased treatment of the providers. This objective may clash with the objective of value for money as it is important to decide how much weight to give to the equal treatment. If a late and non-conforming tender is received and has a cheaper financial consideration then value for money would demand that it be accepted but the objective of equal treatment will disallow its admission. In this essence it may sacrifice value for money.
Fair Treatment of Suppliers, this objective demands that suppliers are accorded their rights under Article 47 of the Constitution and most importantly that the procurer must enhance the rules of natural justice. If a proposal is rejected the law demands that the bidder be notified why and be given a chance to defend himself before the tender is awarded to someone else. However if there are a large number of bidders it would be disproportionate to observe this rules as it may defeat the value for money of the goods being procured.                      

[1] Section 91(1) Public Procurement and Disposal Act, 2015
[2] 1st Schedule Public Procurement Regulations 2006
[3] Section 96(1) Public Procurement and Disposal Act, 2015
[4] Section 96(2) Public Procurement and Disposal Act, 2015
[5] Section 98(1) Public Procurement and Disposal Act, 2015
[6] Section 99(1) Public Procurement and Disposal Act, 2015
[7] Section 99(2) Public Procurement and Disposal Act, 2015
[8] Section 99(3) Public Procurement and Disposal Act, 2015
[9] Section 99(7) Public Procurement and Disposal Act, 2015
[10] Section 100 Public Procurement and Disposal Act, 2015
[11] Section 101(1) Public Procurement and Disposal Act, 2015
[12] Section 101(5) Public Procurement and Disposal Act, 2015
[13] Section 101(2) Public Procurement and Disposal Act, 2015
[14] Section 104 Public Procurement and Disposal Act, 2015
Posted by at 1 comment:

Monday, 10 October 2016

Legal Framework Governing Higher Education in Kenya, Education Law and Policy

HISTORY OF HIGHER EDUCATION IN KENYA
University education in Kenya can be traced to 1951 when the Royal Technical College of East Africa was established in Nairobi. The college opened its doors to the first students in April 1956. In 1961, the Royal Technical College was transformed into a university under the name University College of Nairobi giving University of London degrees. In 1970, the University of Nairobi was established through an Act of Parliament (University of Nairobi Act 1970). The high demand for university education in the 1980s and 1990s led to the increase in the number of universities from one public university college in 1970 to seven public universities in 2007. Private higher education in Kenya can be traced to the colonial period when missionaries established schools and colleges for their converts. The first private institutions of higher learning were the St Paul’s United Theological college (1955) and Scott Theological College (1962). In 1970 the United States International University (USIU) established a campus in Nairobi. These early universities offered degrees in the name of parent universities abroad.[1]
PRIVATE VS PUBLIC UNIVERSITIES
Quality over quantity?
After Kenya attained independence in 1963, the newly formed government recognized the role of education in promoting economic and social development as was spelt out in Sessional Paper No. 10 of 1965, which was premised on African Socialism and its application to planning in Kenya.[2] This necessitated the rapid expansion of the education system to provide qualified persons replace the departing colonial administrators, and to undertake some reforms to reflect the aspirations of the country as an independent state.[3]
Everything seemed to work well in the sixties, seventies and early eighties, but since the mid 1980s government funding to public universities declined considerably in real terms.[4] The shrinking allocation to public universities has led to insufficient facilities and stalled infrastructural projects in many universities in the country.[5]
Therefore, public universities can be defined as the institutions that depend heavily on the government for funding of their activities. This inadequate funding has trailed enrolment growth in public universities, compromising quality as infrastructure remained inadequate and the number of lecturers dwindling.[6]
Another challenge facing public universities is massification. Massification has been defined as the transformation of previously elite systems of higher education to mass systems of higher education as participation in postsecondary education.[7]
Private universities on the other hand can be defined as those institutions that rely heavily on tuition and private contributions. This subsequently means that the tuition rates are generally higher.[8]
Is the emergence of many private universities a good thing? What are the implications?
The growth of private universities in Kenya can be attributed to a number of factors. First, the increase in the number of qualified secondary school leavers seeking higher education which has been triggered by the massive expansion of primary education.[9]
Second, most of the private universities in Kenya are established and run by religious organisations. In Kenya 7out of the 8 private chartered universities are sponsored and managed by Christian organisations. All the five registered universities are sponsored and managed by Christian organisations. Most of the Christian-sponsored private universities started by offering courses mainly geared towards training church ministers.[10]
The implications therefore could be both positive and negative. For instance, Private universities may be playing an important role in absorbing demand from students who cannot get into or do not want to attend public institutions, but the mix of courses that tends to be offered raises questions, according to some, about their role in Africa’s wider development.[11]
Despite the negative perception of private institutions it can be said that the rapid expansion of private higher education is due to the inability of governments and public universities to provide higher education places for a population that is growing quickly and includes an emerging middle class. (Jonathan Mba, Director of Research and Academic Planning at the Association of African Universities)
LEGAL FRAMEWORK
The legal framework for higher education in Kenya includes;
a)      The Universities Act, Cap 210B - This Act gives the regulations governing the advancement of university education for instance the formation of an oversight commission which will be discussed further.
b)      Higher Education Loans Board, Cap 213A – This Act allows the Ministry of Education to grant education loans to students. Initially, the loan was only available for students in public universities but this has changed in the recent years whereby the loans are now open to those pursuing an education in private institutions.
c)      The Council of Legal Education, Cap 16A – This Act gives the regulations governing the legal education sector which will be covered in depth in the course of this paper.


ESTABLISHMENT AND ACCREDITATION OF UNIVERSITIES
Section 4 of the Universities Act No. 42 of 2012 establishes the Commission for University Education. This Act[12] mandates the commission in section 5 (1) to do the following;
  1. Promote the objectives of university education;
  2. Advise the Cabinet Secretary on policy relating to university education;
  3. Promote, set standards and assure relevance in the quality of university education;
  4. Monitor and evaluate the state of university education systems in relation to the national development goals;
  5. License any student recruitment agencies operating in Kenya and any activities by foreign institutions;
  6. Develop policy for criteria and requirements for admission to universities;
  7. Recognize and equate degrees, diplomas and certificates conferred or awarded by foreign universities and institutions in accordance with the standards and guidelines set by the Commission from time to time;
  8. Undertake or cause to be undertaken, regular inspections, monitoring and evaluation of universities to ensure compliance with set standards and guidelines;
  9. Collect, disseminate and maintain data on university education;
  10. Accredit universities in Kenya;
  11. Regulate university education in Kenya;
  12. Accredit and inspect university programmes in Kenya;
  13. Promote quality research and innovation; and
  14. Perform such other functions and exercise such other powers as the Commission may deem necessary for the proper discharge of its mandate under the Act.
Therefore, what amounts to accreditation in Kenya?
According to the Commission for University education website, accreditation entails the public acceptance and confirmation evidenced by award of a Charter, which a university meets and continues to meet the standards of academic excellence set by the Commission.
For any institutions to be accredited, the Commission must be satisfied that the institution concerned has adequate physical, human, library and financial resources, viable relevant academic programmes and sound structure of governance.















Governance and Management of Universities
The role of education and training in the overall development of a country's social, economic and political spheres cannot be overemphasized. The Constitution of Kenya 2010 recognizes education as a basic human right and offers a solid foundation for the government commitment to education, and for extensive reforms in policy, legislation, and curriculum aspects of the education sector. 
The Constitution, 2010 under article 53 1(b) has provided for free and compulsory basic education as a human right to every Kenyan child. Other constitutional provisions that provide for education include:
• Article 43 1 (f) which recognizes education as a basic socio-economic right for every person.
• Article 54 1 (b) which provides for the rights of persons with disability to access educational institutions and facilities integrated into society to the extent compatible with the interests of the person
• Article 55 1 (a) which requires the State  take measures to ensure that the youth access relevant education and training
• Article 56 1(b) which recognizes the rights of minorities and marginalized groups to education
Kenya has experienced a phenomenal expansion of public universities since the inauguration of the University of Nairobi in 1970 (formerly as part of the Federal University of East Africa). However, while the universities enjoy some relative measures of autonomy, government involvement in their governance has been a common feature. Such involvement tends to have the adverse effect of limiting effective consultation and participation in decision-making by the various structures of university administration and members of the university community.

Kenya’s political environment has undoubtedly been inimical to the development of university autonomy and academic freedom. The universities do enjoy to some extent some degree of autonomy in student admission and staff recruitment, government involvement in their running is routine. For all the public universities, the President of Kenya is the Chancellor.
In 2012 the Universities Act was revised that brought about the break down of how universities are governed.
Public Universities
• There is an established commission known as the commission for higher education. It consists of a chairman and a vice chairman that are appointed by the president. (S.3)
• Some persons are appointed by the minister to represent areas of finance, and education. (S.4)
• There is a secretary to the Commission who shall be appointed by the Minister and who shall be the chief executive of the Commission responsible for the management of the Commission’s day-to-day business. (S.4)
• The Minister shall, on the advice of the Commission, promote university education for the benefit of the people of Kenya through the establishment and progressive development of public universities. (S.9)
Private Universities
• Every private university intended to be set up in Kenya shall be established by a charter granted by the President in accordance with the provisions of the Universities Act. (S. 11)
• Any person wishing to establish a private university in Kenya shall make application in writing to the Commission in the prescribed manner, for the grant of a charter setting up the private university.  S.11
• The Commission shall consider every application made and submit it to the Minister together with its recommendations or observations and the Minister shall submit the application to the President together with any recommendations or observations which he may wish to make thereon. (S.11.4)
Kenya Universities and Colleges Central Placement Service
There is an established Kenya Universities and colleges central placement service, it is a corporate body established under the Universities Act 2012 to succeed the Joint Admissions Board.
The Service is governed by the Placement Board. In the performance of its functions, the Placement Board seeks to promote equity and access to university and college education, by among other things, developing criteria for affirmative action, for the marginalized, the minorities and persons with disabilities.
The placement Board also seeks to establish a criteria to enable students access the courses for which they applied taking into account the students' qualifications and listed priorities.
Both the public and the private universities are members of this service.















LEGAL EDUCATION IN KENYA
Legal education is preparation for the practice of law.[13] It is the education of individuals who intend to become legal professionals or those who simply intend to use their law degree in other related disciplines such as politics, academics and economics. It therefore refers to experiences and training which help different kinds of people understand and use law in society.[14]
Legal education is aimed at making the student familiar with legal concepts and institutions and with characteristic modes of legal reasoning. Students become acquainted with the processes of making law, settling disputes, and regulating the legal profession. They study the structure of government and the organization of courts of law, including the system of appeals and other adjudicating bodies. It ensures a comprehensive understanding of law in its social, economic, political, and scientific contexts.[15]
In Africa legal education has attracted and will continue to attract the attention of scholars. The reason being that African countries have enjoyed sovereign statehood for a comparably short time during which period transition, experiment, change and turmoil have been features of society all of which have a profound impact on received law.[16] Lord Denning therefore was right in stating that the very future of law in Africa depends on a proper system of legal education being established.[17]
In Kenya there are various statutes that govern legal education. One of the statutes that form the legal framework governing legal education is the Legal Education Act Number 27 of 2012 and Regulations made under the Act (Council of Legal Education Regulations 2015). It is under Part two of the Act that the institution that regulates legal education is established and is known as the Council of Legal Education (CLE).[18]  The functions of the council are to regulate, license and supervise legal education providers, advise the Government on matters relating to legal education and training, recognise and approve qualifications obtained outside Kenya for purposes of admission to the Roll, and to administer professional examinations as may be prescribed under section 13 of the Advocates Act.[19]
The Legal Education (Accreditation and quality Assurance) Regulations, 2016 prescribe the licensing process, recognition and approval of foreign qualifications credit accumulation and credit transfers, quality standards to be satisfied by a legal education provider for the purpose of accreditation and termination, suspension and revocation of licenses.
Universities both public and chartered private universities are allowed to offer degrees in law. Institutions of higher learning may also offer diploma courses in law. Universities and institutions of higher learning are however subject to accreditation. Accreditation is the process by which the Council determines whether an existing or prospective legal education provider has the wherewithal to offer the program in question. The process is governed by the provisions of the Legal Education Act and the Regulations made under the Act.[20]
The functions of CLE with regards to legal education provides (universities and institutions of high learning) are accreditation of legal education providers for the purposes of licensing, curricula and mode of instruction, mode and quality of examinations, harmonization of legal education programmes and monitoring and evaluation of legal education providers and programmes.[21]
The Kenya School of Law Act Number 26 of 2012 also forms part of the legal framework governing legal education in Kenya.  It establishes the Kenya School of law[22] as a public legal education provider responsible for the provision of professional legal training as an agent of the Government.[23]
The school is responsible for training persons to be advocates under the Advocates Act, ensure continuing professional development for all cadres of the legal profession, provide para-legal training, provide other specialized training in the legal sector, develop curricular, training manuals, conduct examinations and confer academic awards and undertake projects, research and consultancies.[24]
The school is responsible for the admission of any person who wishes to study any course at the school if the person qualifies for admission for the course[25] (especially for students who have studied in local universities). CLE however by virtue of the Miscellaneous Amendment Act 2014 has the singular mandate to recognize and approve legal education qualifications obtained abroad for individuals seeking admission to the Bar Programme and/or practice law in Kenya.[26]
In conclusion, it is evident that legal education has legal backing in form of statute and an oversight institution. The question that therefore remains to be addressed is the quality question.  At the fulcrum of the CLE is the Quality Assurance, Compliance & Accreditation Department of the Council of Legal Education is one of the key departments of the organization. It is the largest Department and being part of the larger organization, the Department derives its mandate from the Legal Education Act (No. 12 of 2012) and the Council of Legal Education (Licensing & Quality Assurance) Regulations 2015.[27]








Case-Law
R v Commission of University Education Ex Parte Soita Shitanda
Soita Shitanda was a former government official. He went to the Business University of Costa Rica. While there he wrote to the Commission for university education as to whether the university was recognizable in Kenya. The Commission wrote back and indeed conformed that they recognize the university which is pursuant to the Commission’s mandate. The commission weeks later wrote to him again and declined that they cannot recognize that university and therefore the degree that he had earned there would not be recognized by them in Kenya.
He moved to the Judicial review decision citing that there was unreasonableness in the act of the commission and that the rules of natural justice had been violated.  Justice G.V Odunga ruled that the commission had violated the rule that the applicant had a legitimate expectation to be heard before the decision to not recognize the university was made. The judge therefore quashed the decision to not recognize the university that the applicant had studied in.
The Commission in this decision has the mandate to recognize foreign universities but this discretion is not blanket. It must be guided by the rules of natural justice.


[1] The Growth of Private Universities in Kenya, Jane Onsongo
[2] The governance of Kenyan public universities. Research in Post-secondary Education, 3(2), Sifuna, D. (1998).
[3] Education, society and development: New perspectives from Kenya. Nairobi: Oxford University Press, Court, D., & Ghai, D. (1974).
[4] Higher Education in Kenya: The Rising Tension between Quantity and Quality in the Post-Massification Period, Nickanor Amwata Owuor,
[5] Ibid
[6] Higher Education in Kenya: The Rising Tension between Quantity and Quality in the Post-Massification Period, Nickanor Amwata Owuor

[9] The Growth of Private Universities in Kenya, Jane Onsongo
[10] The Growth of Private Universities in Kenya, Jane Onsongo
[12] Universities Act No. 42 of 2012
[13] William .P Alford, Mary Ann Glendon, Lionel Astor, Legal Education, Encyclopedia Britannica https://www.britannica.com/topic/legal-education accessed 30th September 2016
[14] International Legal Centre, Legal Education in a changing world, Report of the Committee on Legal Education in the Developing Countries, New York, 1975
[15] William .P Alford, Mary Ann Glendon, Lionel Astor, Legal Education, Encyclopedia Britannica https://www.britannica.com/topic/legal-education accessed 30th September 2016
[16] J.B Ojwang and D.R Salter, Legal Education in kenya
[17] A.N Allot, The Future of Law in Africa, 1960
[18] Section 4(1), Legal Education Act, No 27 of 2012
[19] Section 8, Legal Education Act, No 27 of 2012   
[20] Council of Legal Education home page, Council of Legal Education, < http://www.cle.or.ke/> accessed 30th September 2016
[21]Section 7 (2), Legal Education Act, No 27 of 2012
[22] Section 3, Kenya School of Law Act No 26 of 2012
[23]Section 4 (1), Kenya School of Law Act No 26 of 2012
[24] Section 4 (2)(1), Kenya School of Law Act No 26 of 2012
[25]Section 17, Kenya School of Law Act No 26 of 2012  
[26] Council of Legal Education home page, Council of Legal Education, < http://www.cle.or.ke/> accessed 30th September 2016
[27]Council of Legal Education, Quality Assurance, Compliance & Accreditation,  < http://www.cle.or.ke/> accessed 30th September 2016

Posted by at No comments:
Subscribe to: Posts (Atom)