SLJ - Volume 1, Number 1, June 2015

Permanent URI for this collection

http://hdl.handle.net/11071/4657
Editorial Board
  • Dr Luis Franceschi – Dean of School of Law
  • Dr Jennifer Gitahi – Director of Academic Programmes
  • John Osogo Ambani – Editor-in-Chief
  • Humphrey Sipalla – Managing Editor
  • Francis Kariuki
  • Santana Monda
  • Melissa Muindi
  • George Kimotho
  • Harrison Otieno
  • Emma Senge
Advisory Board
  • Patricia Scotland, Baroness of Asthal, QC
  • Willy Mutunga, Chief Justice, President of the Supreme Court of Kenya
  • JB Ojwang (Professor), Judge, Supreme Court of Kenya
  • Timothy Endicott (Professor), Oxford University
  • James T Gathii (Professor), Loyola University, Chicago Law School
  • Frans Viljoen (Professor), Centre for Human Rights, University of Pretoria
  • Paolo G Carozza (Professor), University of Notre Dame

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    The wretched african traditionalists in Kenya - The challenges and prospects of customary law in the new constitutional era
    (Strathmore University Press, 2015-06) Ambani, Osogo J; Ahaya, Ochieng
    The modern African judge will be the first to acknowledge that, in many senses, the problems faced by British judges in colonial Africa have not vanished. Almost one hundred percent of the African judiciary is now African. But even though there is no longer the gross disparity of national origin between a judge and his community, a judge often does not come from the particular locality whose ethnic law he is administering. A part from this ethnic question, there is an enormous educational and cultural gap between a senior judge with a western education and the ordinary families he may deal with. Thus, the judicial system may have moved from a problem of race and ethnicity to one of class.
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    Foreward - Strathmore Law Journal
    (Strathmore University Press, 2015-06) Franceschi, Luis
    Excellence in legal education is hinged upon appropriate infrastructural systems that support innovative learning, critical thinking and groundbreaking research, always within the context of a tireless search for truth and the pursuit of justice.
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    Developing an efficient and effective Social Security Adjudication Framework in South Africa - the role and impact of International Standards
    (Strathmore University Press, 2015-06) Nyenti, Mathias
    South Africa is currently developing an overarching policy framework for efficient and effective resolution of social security disputes as part of reforms towards the establishment of a comprehensive social security system. In the development of the policy, international and regional guidelines and standards on access to justice were instrumental as they are benchmarks on the scope and content of the right of access to courts for social security claimants and the State’s obligations in this regard. This article outlines some international guidelines and standards relevant to the realization of access to justice for social security claimants; and their role in recent reform initiatives that have been undertaken to promote access to justice in the South African social security system.
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    Editorial - Strathmore Law Journal
    (Strathmore University Press, 2015-06) Ambani, J Osogo;
    Users of academic research outputs will easily agree with me that compared to our Western counterparts, very little has been published on African law and the law in Africa North of River Limpopo. Researchers enquiring into any subject of law in Africa soon realize that literature in the area is marginal. This makes Africa a huge grey intellectual area. There are also complaints that there is a systemic marginalization of native African scholarship in leading academic forums to the extent that a consumer of the numerous works published in Western intellectual capitals may be excused for assuming that very little knowledge is generated on our continent. There may thus exist a paradoxical dual vacuum in African scholarship; the dearth of African literature, and a curious disregard for existing African contributions in foreign platforms.
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    Alternative Dispute Resolution, access to justice and development in Kenya
    (Strathmore University Press, 2015-06) Kariuki, Francis; Kariuki, Muigua
    The Constitution of Kenya, 2010, envisions a prominent role for alternative dispute resolution, including traditional dispute resolution mechanisms. This is in addition to other legislative frameworks which provide for non-formal methods of dispute resolution. A thesis is made that formal forums such as litigation through courts of law have various disadvantages including complexity, high costs, and technical procedures, delays, amongst others, which make a strong case for the usually convenient and available ADR mechanisms. Put to good use, these mechanisms have potential to spur economic development through enhanced access to justice and the rule of law. The authors, indeed, argue that there is a golden thread that weaves across the themes of rule of law, human rights and access to justice and development.
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    Traditional Justice Systems as Alternative Dispute Resolution under Article 159(2) (c) of the Constitution of Kenya, 2010
    (Strathmore University Press, 2015-06) Kinama, Emily
    There are various forms of justice. It cannot be limited to legal justice. This paper explores the potential of traditional justice systems under the Constitution. It illustrates the need for a multidisciplinary approach in order to fully realize the right to access justice. Through a comparative analysis as well as case law, the paper demonstrates how alternative dispute resolution is not limited to civil cases, but can be applied to criminal proceedings. Challenges are pointed out and recommendations made on how to improve and effectively manage traditional justice system.
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    The security council and the International Criminal Court - when can the security council defer a case?
    (Strathmore University Press, 2015-06) Obura, Ken
    This paper discusses the deferral power of the Security Council under Article 16 of the Rome Statute. It analyses the drafting history, provision and practice of Article 16 with a view to identifying the requirements that a situation should meet before the article may be invoked by the Security Council. The purpose is to provide guidance on the legal terrain within which the Security Council is authorized to act under Article 16, especially in light of its inconsistent invocation of the deferral power. The paper argues: firstly, that, being a creature of the law, the Security Council is governed and qualified by the law; and secondly, that Article 16 has unambiguously provided the parameters within which the Security Council should exercise its deferral power.
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    Towards a new justificatory theory of Comparative Constitutional Law
    (Strathmore University Press, 2015-06) Legarre, Santiago
    This paper tries to explain what comparative constitutional law is and takes the US legal practice as an example. The presence of comparative analysis is considered both in the academic arena and in the case law of the US Supreme Court. The conclusion of this part of the article is that for comparative constitutional law to be valid its role ought to be restricted by several constraints. The article also suggests that the comparative enterprise only makes sense if the universality of human rights is first acknowledged. The paper next delves into such universality and connects it with notions of new classical natural law that are considered essential in order to adequately understand the problem. Finally, it provides an example of the misuse of comparative constitutionalism.
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    Book Review - The Constitution of Kenya, 2010 - An introductory commentary
    (Strathmore University Press, 2015-06) Kibet, Eric
    Lumumba and Franceschi’s The Constitution of Kenya, 2010: An Introductory Commentary is an indispensable handbook for readers striving for an exhaustive mastery of Kenya’s Constitution, and anyone wishing for a quick reference. It is carefully analysed, well annotated and presented in an easy-to-read fashion. Authored by two distinguished legal scholars, the tone of the book demonstrates thorough understanding of the socio-political situation in Kenya, the aspirations of its people as well as the vision and purposes of the 2010 Constitution.