Browsing by Author "Kariuki, Francis Kamau"

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    Customary law jurisprudence from Kenyan courts: implications for traditional justice systems
    (Kariuki Muigua & Co. Advocates, ) Kariuki, Francis Kamau
    For a long time, the jurisprudence emanating from Kenyan courts has treated African customary law as an inferior source of law in comparison to formal laws. Consequently, certain customary practices and traditions that can foster social justice and peaceful coexistence amongst communities such as traditional justice systems had not been formally recognized in law. However, the 2010 Constitution recognizes customary law and the use of traditional dispute resolution mechanisms in resolving disputes. It also protects the culture and other cultural expressions of the people. This recognition is important because of the close interlink between traditional justice systems and customary law. In this paper, an examination of previous court decisions dealing with customary law is attempted to glean courts approach to customary law in the past and whether it can influence the application of traditional justice systems in enhancing access to justice. The paper posits that the way courts have interpreted customary law since the advent of colonialism may be a barrier to the application of traditional justice systems. A need therefore arises for courts to develop a jurisprudence that is supportive of customary law and traditional justice systems. A change of mindset and perceptions amongst judges, lawyers and the wider citizenry towards customary law is required if traditional justice systems are to contribute to enhanced access to justice for communities in Kenya.
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    Securing Land Rights in Community Forests: Assessment of Article 63(2)(d) of the Constitution
    (University of Nairobi, ) Kariuki, Francis Kamau; Kameri-Mbote, Patricia (Prof.)
    Forests provide environmental, socio-cultural and economic benefits to mankind. They are particularly important to forest dwellers and hunter-gatherers as they derive their livelihoods from there and consider them as their ancestral lands. Section 3 of the Forests Act 2005 defines forest communities as groups of persons who have a traditional association with a forest for purposes of livelihood, culture or religion or who have been registered as an association or other organisation in forest conservation. Access to forests by these communities has, however, been restricted by government policies inherited from the colonial powers, which were largely preservationist. Moreover, competing land uses over forest lands for human settlement, farming, industrial development, livelihood support for the forest dwellers, as carbon sinks and water catchment areas, is a major source of conflicts. This has impacted negatively on forest communities who traditionally had rights of access and control of forests which existed even if land belonged to a different legal entity. There have been efforts by government towards recognizing the rights of forest communities in Kenya. These efforts culminated in the adoption of the Constitution of Kenya 2010 which in Article 61(2), recognizes community land. Community land is defined in Article 63(2)(d) to include land lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; ancestral lands and lands traditionally occupied by hunter-gatherer communities or lawfully held as trust land by the county governments. This is an important development in securing the land rights of forest communities and access to forest and forest products. By reviewing relevant literature, laws and policies, this study sought to examine the treatment that such lands have received under formal laws in Kenya and the implications of protecting community land for forest communities in the Constitution 2010. It also sought to come up with proposals and recommendations on how to improve the laws to ensure adequate protection of the land rights of forest communities in Kenya. This is important because the multiple uses to which forests can be put into present a challenge in coming up with an appropriate tenure arrangement that secures competing interests, including those of forest communities. The methodological approach adopted in this study was a review of relevant literature on land and forests in Kenya. The qualitative data gathered was critically analyzed and evaluated in the context of the research objectives.
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    Sustainability in the financial sector in Kenya
    (Kenya Bankers Association, ) Kariuki, Francis Kamau
    At the core of the concept of sustainability is the need to take into account the social, economic and environmental concerns in development. Sustainability ensures that economic growth takes into consideration social and environmental issues. In the financial sector, sustainability is necessary due to the critical role played by the sector in national development. In Kenya, financial institutions are financing investments in the agricultural, manufacturing, housing, infrastructural, energy and extractive industries. These investments have significant environmental and social impacts creating the need for adoption of sustainable finance. In spite of this, initiatives aimed at sustainability in the sector, are diverse and uncoordinated, and are therefore not likely to result in tangible long term benefits for society, environment and the business community. A synergistic approach to sustainability in the industry is thus imperative. The paper proposes the adoption of a hybrid approach in implementing sustainable banking in Kenya. The model would harness the positive attributes of market-driven and compliance approaches to regulation. Such a model could have voluntary codes and guidelines developed by the industry, and a regulator to enforce and ensure compliance with those guidelines
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    Sustainable development and equity in the Kenyan context
    (Kenya Law, ) Kariuki, Francis Kamau; Muigua, Kariuki
    Equity, particularly intergenerational and intragenerational equity, is central to the concept of sustainable development. The rhetoric of equity has been incorporated in sustainable development instruments and is already part of customary international law. In Kenya the right to a clean and healthy environment which inter aliaincludes the right to have the environment protected for the benefit of present and future generations has been codified in the legal framework and the courts have had occasion to interpret this right in the Kenyan context. Kenya has however adopted an anthropocentric definition and approach to sustainable development, which places a lot of emphasis on human beings thus ignoring the ecological perspective in sustainable development. The authors argue that the environment has a right to be safeguarded and protected not necessarily for the benefit of human beings but for ecological reasons. This paper critically examines the principle of equity (intergenerational and intragenerational equity), and its centrality in the concept of sustainable development in Kenya. The intergenerational rights of future generations and of the environment are explored. Equally the intergenerational and intragenerational obligations of the present generations are assessed. The paper also discusses the extent to which equity has been incorporated into the Kenyan legal framework on environment and natural resources. It will also give Kenyan examples of natural resources that are rare and have been threatened by unsustainable use. With the enactment of the new Constitution[1], the Environmental Management and Coordination Act No. 8 of 1999 and the Environment and Land Court Act No. 11 of 2011 it is hoped that sustainable development which is informed by equity will be attained. Achieving sustainable development means that the carrying capacity of the ecosystems will be conserved and protected and that the future generations will have an opportunity to enjoy the fruits of sustainable development. In order to attain these goals the requisite long-term measures have to be taken in conserving environmental and natural resources. The authors argue that the policy, legal and institutional mechanisms put in place on how to fulfill our duties to the environment and future generations are not adequate as they are designed to handle problems of a short-term nature. The paper notes that most of the measures undertaken in Kenya in conserving environmental and natural resources are short-term and are not suitable in attaining intra and intergenerational equity. It also notes that most of the measures, policies and programmes geared towards attaining sustainable development are largely centered on human beings and thus do not adequately address ecological issues in the country.