Ordinary citizens simply trust that the government knows what it is doing and will do it correctly. Individuals assume that when government acts, such as when the police arrest and detain a suspected criminal or some county commissioner bans bands from playing music in a place, et cetera, that such acts are in the interest of the public; that they are done in good faith and that they will benefit the majority of, if not the whole, public.
But what happens when public officials behave and act in ways that appear more to represent private interests instead of public good? On what basis do rogue government officials act – such as when there are extrajudicial killings or appropriation of public land for private use? On what law are such officers basing their actions, since in many cases they proclaim to be acting on behalf of the government? Legal scholars argue that civil servants base their policies and actions in what is known as administrative law.
But do ordinary citizens know what this “administrative law” is? And, should they know it? The fact that even in democracy – the supposed rule by the majority – governance is, in many ways, still the rule by one group (of private individuals, such as if you consider political parties to be private rather than public organisations), makes it very vital for the public to understand the basis of the laws by which the government proclaims its authority over citizens. In Kenya, where very few people really understand even the Constitution, one feels that there should be massive civic education on administrative law. A good starting point would be to read the book Administrative Law by Prof Migai Akech (Strathmore University Press, 2017).
In this book, Prof Akech outlines the background to administrative law as found in the ideas of democracy and the rule of law. Both notions have their basis in the ideal of a society that serves the interests of all of its members. Prof Akech argues that administrative law is “… instrumental to the realisation of day-to-day democracy, since it requires that decisions of government must not only be subjected to checks and balances, but must also be explained or justified to the people that they affect.” In other words, these laws should, ideally, enable citizens, for whom those in government hold power and authority in trust, to question, sanction or support officeholders.
Prof Akech further notes that in the sense he describes above, “… administrative law ensures that public officials do not abuse their powers, thus undermining the liberties and livelihoods of citizens.” Abuse of public office, where the officeholder deploys his or her powers and authority excessively or where the civil servant uses the office for personal gain, is the ugly face of the government in this country. It isn’t uncommon to see government vehicles driving on the wrong side of the road; tales of citizens being asked to offer chai before they can be issued with birth certificates or identity cards; the now “normal” drama of police officers openly extorting money from public service vehicles, for no known offence; fraudulent allocation of public land; theft by public servants – which Kenyans casually call corruption – among other infractions and misdeeds, all violate administrative law.
In many cases, ordinary citizens find themselves helpless against government officials who cite the same laws they are breaking to defend their actions. For instance, civil servants who drive on the wrong side of the road or shoo other motorists out of the way on the road claim that they are rushing to a public event. Chiefs and other administrative officials terrorise Kenyans in the villages, invoking nonexistent “laws” to have their way. The range of taxes that Kenyans have to pay or fees to acquire trade licenses and the administration of elections are among the issues that Prof Akech highlights as examples of how administrative law is important in the daily life of Kenyans. Fair application of the law produces a functioning state that is able to guarantee peace, justice, security and progress. Misapplication of the law leads to chaos, injustice, insecurity and underdevelopment.
But, as Prof Akech reminds us, it is possible for wananchi to re-engage the government whenever it breaches the contract between them. In the case of Kenya, the office of ombudsman and judicial review, alongside reforming the Judiciary, are some of the remedies to situations where the government oversteps its mandate. But even such measures would only be curative in cases where the government and the citizen agree that they both seek progress and a broader common good.
Tom Odhiambo teaches literature at the University of Nairobi.