Elements of public law notes

Elements of Public Law

  • Arms of arms of government
  • Functions of the arms of the government
  • Right of citizens as per the constitution of Kenya
  • Offences applicable for proceedings against the state

PUBLIC LAW

It is that governs the relations between the state and its citizen. It is that part of that the state has an interest. It consists of;

Constitutional Law

Are those rules that regulate the relationship between the Organs of the state. The organs of the state consist of the Executive, Legislative and Judiciary.

The Executive consist of the President and Cabinet. It is the National Assembly or Parliament. The Judiciary is court system.

Principles and concepts of the constitution

The constitution determines the following;

  1. Organization of the state
  2. Distribution of powers among the state organs
  • The relationship between the government and citizen
  1. The constitution ensures the Rule of Law in the country                    provides the rights and freedoms of individuals.

Applies the following principles;

The Rule of law

Meaning;

  1. No man shall be punishable, or lawfully made o suffer in body or in goods except for distinct breach of law established in legal manner before the ordinary courts of the land.

This means the executive has no arbitrary powers over individuals except the powers granted by the parliament or common law, No person may arbitrary be deprived of his life, liberty property or arrested except for breach of law which must be proved in ordinary court of law.

  1. Every citizen is subject to the ordinary law of the realm and amenable to jurisdiction of courts. This means there is equality of every citizen regardless of status .There is one kind of law to which all citizens are amenable to.
  2. The general principles of constitution are the result of judicial decisions determining the rights and freedoms of individuals’ rights and freedoms are from judicial decisions not constitution.

NB; Absence of Rule of law means;

  1. Arbitrary powers
  2. Ineffective of delegated legislation
  3. Irresponsible citizens
  4. Lawlessness
  5. Corrupt leaders etc

The rule of prevails in the country because ordinary law of land is supreme, All persons are punished for breach of law.

Doctrine of separation of powers

The power of government is divided into three, Executive,   Legislation and Judiciary

  1. Executive should not exercise the legislative and judicial powers
  2. Judiciary should not exercise the Executive and legislative powers.
  3. Legislative should not exercise Executive and judiciary powers.

Criticism of doctrine

  1. All organs of the state need assistance and cooperation of other organs. Complete separation is practically impossible.
  2. Absolute separation can generate the spirit of competition among the organs which may lead to deadlocks dispute and inefficiency.
  3. The doctrine is based on assumption that liberty of individuals is based on this doctrine. This is wrong since the liberty of individuals best protected thru political consciousness and vigilance of people.

Complete separation is impossible. The best solution is Checks and Balances system. This system     maintains the separation of power but each organ checks the other .e.g.

  • The president can dissolve the parliament at any time.
  • An act of parliament cannot pass until it receives the president assent.
  • Parliament can pass a vote of no confidence on executive.
  • Judges can declare an act of parliament unconstitutional.

Supremacy of the constitution

Kenya constitution is supreme because;

  1. It is the main source of law in the country
  2. any law inconsistent with constitution is void
  3. an act of parliament cannot become law if it is inconsistent with the constitution
  4. The Executive exercises the powers within limits specified in the constitution
  5. the powers of government is prescribed by the constitution
  6. Rights and freedoms of individuals are guaranteed by the constitution
  7. Judiciary should act within limits specified in constitution.

INDEPEDENCE OF JUDICIARY

The Judiciary should be Independent. This means;

  1. Judges and magistrate can decide cases legally without pressure or fear from executive and parliament
  2. Protect rights and freedoms of individuals against excessive government
  3. Responsible for effective administration of justice in the country
  4. Tries criminal cases prosecuted by the state
  5. Guardian of the constitution
  6. Ensures executive actions are in accordance with the constitution
  7. Acts of parliament can be declared void by the judiciary thus cannot be passed
  8. All courts are open to all persons regardless of their status
  9. Judges and magistrate enjoy some privileges such as, job security ;cannot be sued while discharging duties
  10. Judges have the power to punish persons for contempt of court.
  11. Fundamental rights and freedoms of individuals

The Kenya constitution guarantees rights and freedoms to individuals’ .These rights are contained in chapter five known as BILLOF RIGHTS. (ref)

ADMINISTRATIVE LAW

Sets out the functions of;

  1. Executive
  2. Public authorities
  3. Special tribunals
  4. Statutory inquiries
  5. Delegated legislation
  6. Role of courts
  7. Legislative powers

Criminal law

Governs the state and citizens .State has duty to protect the Citizen by prosecuting any person who commits a crime.

Meaning of crime

A crime is an offence against the public at large. It is performance of an act which is punishable by a fine, Imprisonment or both. It is an act prohibited by law.

The parties to a crime are the prosecutor and the accused. The prosecutor brings the case before the court of law. The accused is the person who commits a crime.

The prosecutor must prove his case against the accused on reasonable shadow of doubts. Any sight of doubt the accused goes home free.

Types of crimes

Crimes are classified into three types

Treason; Is a crime against the state or against ones master (boss) It consist of;

  1. Aiding the enemy
  2. Gathering, transmitting, or losing information relating to national defense with a purpose of injuring the country. It is called Espionage. It amounts to death, penalty or life sentence

Felonies; Includes such as, murder, manslaughter, burglary, robbery, and arson. It is punishable by death penalty   or imprisonment exceeding one year.

Misdemeanors; these are crimes which require lighter penalty. Include   theft, traffic offences, assault, battery, lying etc. Other criminal acts includes;   and alcohol abuse, Shop lifting, Vandalism and Child abuse.

 

Defenses in crime

  1. Self defense, Is an excuse using force in resisting to attack. It must be shown that the only possible way to escape was death or bodily injury.
  2. Entrapment; this is where a person may be induced by a police man to commit a crime.
  3. Insanity; It a good defense but a person must prove that he committed because of insanity which requires doctor examination.

Review questions

  1. Explain the composition of public law. (6marks)
  2. Explain the meaning of the rule of law (6marks)
  3. Explain the following constitutional concepts
  4. Supremacy of the constitution
  5. Independence of the judiciary
  6. Separation of powers (20marks)
  7. Identify the types of crimes and the defenses available to person who commits a crime                                                                                                                         (20marks)
  8. Explain five classes of persons against whom no criminal proceedings can be initiated.                                                                                                                         (10marks)
  9. Outline five fundamental rights and five freedoms as granted by the constitution. (10 marks)

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