History and Development of Administrative Law in Kenya

  

Date Posted: 12/13/2012 8:35:01 AM

Posted By: macawear88  Membership Level: Silver  Total Points: 163

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The system of administrative structures that exist today did not exist in pre-colonial societies. There was also no system of ad law or customary ad law that resembles the current system. The current administrative system with its system of administrative laws only came with the advent of colonialism in the second half of the 19th Century. In the pre-colonial period, societies were of simple character in the sense that they primarily sought to satisfy immediate basic needs. These were food, shelter and security. Therefore the cultures and traditions of these societies and religions which constituted their laws were built around food, shelter and a quest for basic security. These were the primary needs that both the pastoralists and the agrarian societies sought to satisfy. Even though their slightly differing economic approaches dictated a somewhat differing kinds of polity (societal political set-up)

Invariably systems of leadership existed among the different tribes in which the political leadership was either entrusted with an age set and handed down from generation to generation i.e. from one age-set to another as in the case of the Kikuyu tribe or the system of leadership included a foremost leader, priests, medicine-men or warriors as was the case with the Luo tribe. Some of the tribes such as the Kikuyu entrusted their political, judicial and religious functions and (which formed the primary functions of their governance system to a council of elders) this council of elders loosely comprised persons specializing in particular matters according to knowledge and interest. For such communities the council of elders made all the important decisions of common interests.

At a larger level constituting more than one community, political actions, main military operations were conducted as directed by age-sets. At this level each community spoke through a

spokesman, who was not necessarily a chief but was no more than the chairman of a territorial unit. They spoke on matters of concern mainly food, shelter and security. Chiefs hardly existed.

For other tribes such as the Luo, public functions were conducted at the sub tribe level. Below this sub tribe level was the clan. The sub tribe constituted a higher council comprising the heads of clan. It was also comprising diviners, healers, rainmakers and warriors. The council which was presided over by the foremost leader of the sub tribe dealt with all important public issues and these were the most important public issues, homicide, external aggression, law and order. Matters concerning food shelter and land were dealt with at a clan level.

The political systems which also comprised some rudimentary administrative elements were conceived and practiced in accordance with luo cultures and supported not by a system of formal laws and public administration but by various forms of religions, by culture, traditions and rituals of the tribes.

The traditional systems revealed a simple and relatively informal governmental system, localized and apparently not designed for the modern states. In some societies there was a remarkable overlap and fusion in the operation of the various society institutions.

Nevertheless in all cases a framework of stability existed which even though precarious framework which served the needs of the time by enabling each community to meet their basic necessities and keep some kind of basic peace.

Traditional societies existed as they were until 1895 when the British government declared a Protectorate status over the region over Kenya. The commencement of the protectorate marks the beginning of direct British government administration in the region. This was to see the importation of British system of governance including its system of public administration.

Between 1895 and 1897, the colonial government was mainly preoccupied with boundary demarcations and territory acquisition such that by 1897 no comprehensive system of formal administration of Kenya had been established.

African tribes remained subjects of their local leaders under the various political systems of the tribes. Full jurisdiction over all the people in the region now Kenya was not conferred on the protectorate until the passing of the East African Order in Council in 1902.

The order empowered the British Commissioner who had been empowered to act on behalf of the Queen in the region to make ordinances for peace, order and good governance of all persons in the protectorate.

By the Order in Council of 1902, the High Court was established with full civil and criminal jurisdiction and the establishment of the regular administration began.

This development was dictated in the initial years by the stronger private demands of the growing European settlers. For the most part the new system of Administrative government developed parallel to the ethnic system.

The first step in this development i.e. the development of a regular administrative structure was the passing in 1902 of the Townships Ordinance, under which Nairobi and Mombasa Townships were established. Further developments had the effect of bringing native people physically and psychologically out of their social culturally and political rootage. This included the passage of the Hut Tax Ordinance in 1903 to provide funds to support the colonial government structure. In the same vein a Legislative Council was established. The Legislative Council was charged with making various ordinances and was comprised of the 3 people, the governor and 2 other people.

Constitutional law and administrative law are subjects which interlock closely and overlap extensively. The rule of law, for instance, is a basic concept which runs through them both and which offers scope for political theory as well as for the discussion of its practical features which will be found below. But other such universals are not easily found in the field of administrative law, and the lack of them limits the assistance which political theory can provide.

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