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[ISSN 2519-5883]
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Now showing 1 - 5 of 7

Recent Submissions

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Evaluating the effectiveness of the legal and institutional framework in addressing historical land injustices in Kenya: a comparative study with South Africa’s land reform laws
(Strathmore University, 2024) Masha, N. K.
Land has always been an emotive issue in Kenya. Since gaining independence, there has been a consistent call from Kenyan citizens, politicians, leaders, and other key players for the establishment of new land laws. Unfortunately, the reforms in land law have been incremental and have failed to yield beneficial outcomes for the general population, instead, further injustices related to land have been inflicted upon Kenyans post-independence. In 2010, the adoption of a new Constitution in Kenya marked significant progress, leading to comprehensive reforms and the restructuring of the land law system. The Constitution of Kenya offered a beacon of hope on the path to achieving transitional justice. It established the National Land Commission (NLC) which was tasked with investigating and making recommendations concerning current and historical land injustices. However, since its inception, the NLC has made very limited progress in this specific mandate. Consequently, this research project aims to examine the legal and institutional framework that governs restitution of Historical Land Injustices to determine where the hindrances lie. In order to remedy the issues identified, it explores effective strategies for the resolution of historical land injustices in Kenya, drawing lessons from South Africa's post-apartheid restitution efforts. With a focus on comparative analysis, the study seeks to understand how Kenya can leverage international best practices, particularly those of South Africa, to address its own challenges of land dispossession stemming from colonial and post-independence policies. The study employs a qualitative approach and encompasses a detailed examination of both countries' legal and institutional frameworks for land restitution, with an emphasis on the establishment and operations of South Africa's Land Claims Court and the Commission for Restitution of Land Rights, and their potential applicability within the Kenyan context. This study suggests the need for Kenya's National Land Commission to adopt clear procedural guidelines, establish specialized mechanisms dedicated to land restitution, and ensure judicial support for the restitution process. Furthermore, it recognizes the need to adopt a holistic approach that addresses not only legal restitution but also the social, cultural and economic rights of affected communities. These measures are critical for achieving transitional justice, promoting sustainable development, and fostering national reconciliation in Kenya.
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Enhancing compliance: a proposal of EARB as the supervisory body that regulates real estate agents against money laundering
(Strathmore University, 2024) Kariuki, O. M.
Money laundering, the process of disguising illicit proceeds as legitimate assets, remains a global challenge. This study delves into the susceptibility of Kenya's real estate sector to money laundering, despite existing regulatory frameworks. The primary objectives include assessing the degree and nature of financial crime in Kenya, scrutinizing the estate industry's role in facilitating such activities, evaluating government regulatory efforts, and proposing strategies to bolster anti- money laundering practices. In pursuit of these objectives, a doctrinal approach employing desktop research is adopted, examining legal texts and documents related to money laundering policies in the real estate industry. A documentary analysis is also employed to trace the evolution of money laundering and highlight regulatory efforts and existing gaps. Additionally, policy and institutional analyses are applied to comprehend the execution of regulations and the roles played by regulatory bodies. This research identifies critical weaknesses in Kenya's regulatory framework, including regulatory gaps between key laws, unclear compliance expectations for real estate agents, and a lack of anti-money laundering guidelines for the regulatory body. To address these issues, the study proposes key recommendations: amending legislation to address loopholes, empowering the regulatory body to enforce anti-money laundering measures, and actively collaborating with international partners such as the FATF. Implementing these measures will fortify Kenya's financial defences, safeguarding its real estate sector from further becoming a haven for laundered money.
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Double invisibility: an assessment of the right to vote for persons with intellectual disability in Kenya
(Strathmore University, 2024) Kaburu, V. W.
Voting is arguably one of the most important rights and responsibilities held by a citizen in a country. The restriction of this fundamental right not only affects an individual’s legal capacity but also undermines their human dignity. Historically, PWIDs have been denied legal capacity on the basis that they are not rationally capable of making decisions. This is due to the nature of their disability, which encompasses significant limitations in intellectual functioning and adaptive behavior. PWIDs support needs make them unique from the general population, and this distinctiveness does not equate to an incapacity in making decisions. The concept of being able to make independent political judgments is perceived as the basis of a democratic society. In this case, a democratic society has a reasonable utilitarian interest in an intelligent electorate. Therefore, if one is unable to act independently, any power they exercise is regarded as democratically illegitimate. Although reasonable, such a perspective neglects the support needs of PWIDs, who, despite their disabilities, deserve an equal right to vote. This paper examines the constitutional provisions on the right to vote in Kenya, where prevalent prejudicial attitudes have facilitated the exclusion of PWIDs right to vote. The imposition of blanket restrictions, such as the term ‘unsound mind,’ without clear assessment criteria for voting purposes, inadvertently restricts PWIDs from their right to vote. This uncertainty in law has led to prejudicial interpretations, perpetuating the misconception that PWIDs are incapable of making informed voting decisions. As this study aims to demonstrate, PWIDs are not of unsound mind, but in absence of good communication and require support to exercise their right to vote. The provision of reasonable accommodation, as proposed in this paper, could help PWIDs actualize their right to vote in Kenya.
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An Assessment into whether Kenya’s Section 23 of the Computer Misuse and Cybercrimes Act unconstitutionally limits freedom of expression by how it criminalises false publications
(Strathmore University, 2024) Mwenda, C. N.
This article addresses the complex issue associated with mitigating the proliferation of false information in the framework of Kenya's Computer Misuse and Cybercrimes Act, Section 23. It discusses the unintended consequences of efforts to criminalize false publications, particularly how it's employed as a tool for suppressing journalism, in light of the critical role that social media plays in democratic societies. The paper meticulously analyses the shortcomings of Section 23, which is perceived as being too broad and vague, and considers how it might infringe on an individual's right to free speech. The argument of this paper is that the parameters of section 23 is unclear and therefore it infringes on a person’s ability to circulate and disseminate information freely which is constitutionally protected under the freedom of expression. The law under section 23 was ignorant on some intricate aspects of false information and freedom of expression. The problem that is information disorder is true and alive in Kenya, but there have been issues when considering the typology of false information and the nature of false speech in connection to free speech. While acknowledging the reality of information disorder in Kenya, the article closely examines the typology of false information, revealing nuances that challenge the current understanding of false speech in relation to free speech. This article offers recommendations that would reform Kenya's false reporting statute proposing a law that meets the legal standard of certainty and predictability of the law. The suggested reform aims to establish a law that meets legal standards of certainty and predictability, addressing the current ambiguity within Section 23. By advocating for a more nuanced approach, the article seeks to strike a balance between regulating false information and preserving the constitutionally protected right to free expression. This contribution aims to fortify the legal framework in the face of evolving challenges in the social media era.
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Discretionary citizenship: an assessment of the exercise of the vetting process in Kenya
(Strathmore University, 2024) Hassan, A. I.
The Constitution of Kenya provides for citizenship documentation such as the National Identity Card as an entitlement for a citizen. The documentation is acquired upon registration for persons who acquire citizenship by birth under the framework of the Registration of Persons Act. Under section 8(1) A, the Act provides for the power to institute identification committees to authenticate information provided by the applicant. This dissertation seeks to study whether the power conferred by the section is wide which makes it susceptible to abuse requiring its limitation. This is by examining the section to show whether the powers conferred are wide and analysing the implications of the use of the wide powers and its effect on border communities. The dissertation argues that abuse of the discretion is exercised by administrative officers which raises the need for reform of the vetting process. The reforms proposed are legislative amendments of the section to include procedural safeguards and circumstances for use. This prevents effects experienced by border communities such as statelessness, indefinite delays and corrupt citizenship. The amendments by the legislature are preferred in the study as previous reliance on administrative rule making by the Minister has had no effect in remedying the problems faced by border communities. Through the analysis of primary and secondary materials, the study came to the conclusion that wide discretionary powers are granted by the Section that affects border communities through its abuse. This therefore necessitates reform in line with administrative justice.