The Role of the Commission on Administrative Justice in Protecting the Constitutional Right to Fair Administrative Action in Kenya

Abstract

This study investigates the role of the Commission on Administrative Justice (hereinafter stated to as the CAJ) in protecting the right to fair administrative act under the 2010 Kenyan Constitution. It documents the successes, challenges, and opportunities that the CAJ has encountered in realizing its constitutional mandate. The study argues that although the CAJ has made some strides in guarding the right to fair administrative action, it nevertheless continues to face numerous challenges, which hinder it from fulfilling its mandate. As a result, this inadequacy of the Commission on Administrative Justice Act 2011 and the Fair Administrative Action Act, No. 4 of 2015 has restrained the operations of the CAJ hence the failure in promotion of fair administrative action in Kenya as defined for under the Constitution of Kenya 2010. It demonstrates that although some progress has been made, the absence of a policy on enforcement of decisions, political bureaucracy and impunity, limited accessibility, and lack of awareness of the public on the roles of the existence and mandate of the CAJ are some of the critical challenges that continue to greatly undermine the CAJ from fulfilling its mandate. Although several scholars have written on the CAJ, to the best of my knowledge, no other study has evaluated the extent to which the CAJ has fulfilled its constitutional mandate of regulating administrative power in Kenya. This study also seeks to seal this gap by exposing the limitations of the CAJ caused by legislative gaps such as lack of enforcement mechanisms and different interpretations that prevent it from enforcing, realizing and enhancing the right to a fair administrative action. With a sole purpose of contributing to existing literature, this study in a bid to take away the execution role by parliament, among other recommendations, recommend the amendment of Section 8 and 54 of the Commission on Administrative Action Act, 2011 to assist the CAJ fulfil its desired mandate as envisaged in the 2010 Kenyan Constitution.