Is the Common Law Method a Threat to Democracy and the Rule of Law? A Case for an Administrative Law Statute in Kenya

Abstract

Abstract The Greek word nomos translates to Convection, laws of great importance and longstanding.'. The Constitution of Kenya ably fits within the understanding of nomos for its importance and intended long lastingness. All public authority draws from it and it largely orders our daily lives. Constitutions aspire to establish stable, fixed points of agreement and pre-commitment'. The Kenyan constitution through its article 47 (2) has called for the enactment of a statute governing the province of Administrative Law. It is my humble view that this call is timely and should be heeded if we are truly to live by our stated credentials of a Constitutional democracy, governed by the rule of law and in which civil liberties thrive and are accorded protection. An Administrative Law statute will go a long way in ensuring stability, predictability and fostering a culture of Constitutionalism.3The enactment of a statute, a marked departure from the Common Law method now contemporary, will not only ensure stability and predictability but also ingrain our cherished ideals of Democracy, Rule of Law and Constitutionalism. 1 Legal Reason; The Use of Analogy in Legal Argument -Lloyd L. Weinreb at page 153. 2 A Common Law Theory Of Judicial Review; The Living Tree w.J Waluchow at Page (i) 3 Constitutionalism is the idea that powers of government both can and ought to be limited and that its political, moral and legal aupmrity depends on its observing these limitations. For this description please see W J Waluchow's text at page 21. VIII