SLR - Volume 1, Number 1, January 2016

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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, 2016-01) Ambani, Osogo J .
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.
Foreward
(Strathmore University Press, 2016-01) Franceschi, Luis
Research is essential in emerging economies. From a financial perspective, it may seem to be a lavish dissipation of desperately desired funds or an unnecessary luxury. However, from an academic perspective, research is what really differentiates a university from any other educational institution. Without research, our education system will soon become irrelevant to society. In legal education, excellence in research is an essential requirement. Research will ensure that our younger generations of lawyers deepen their understanding of social and legal realities, and aim at the pursuit of justice by attaining a perfect match between our laws, policies and the social context. Law always operates within a social context. It provides the foundational tenets that support policy and development. Love for truth and nation will anchor the rule of law to ethics and to our national values, thus making our development sustainable. This is by no means an effortless or straightforward task. It begins here and now, at school, where minds and hearts are shaped for ever, where the magic of knowledge provides each and every young African with a deep yearning…to be an agent of change. It is with profound joy that I write this foreword. The greatest privilege of a teacher is to see his pupils take over and lead the way forward. I am immensely proud of them. They come from different backgrounds and schools. They faced up to the challenge Strathmore Law School posed to them, and their dedication has come to fruition in this finest students’ journal. ‘Without the right values in the people, a democracy is only a confederacy of fools.’ Cory Aquino said this to her Filipino countrymen. And the primary goal of the lawyer is to safeguard one of the highest values of a democratic society: Excellence in the pursuit of justice! I am sure that this young generation of upcoming lawyers will not let us down. Luis Franceschi, LLB, LLM, LLD Dean, Strathmore Law School
A perspective on the doctrine of the separation of powers based on the response to court orders in Kenya
(Strathmore University Press, 2016-01) Kibet, Emanuel; Wangeci, Kimberly
The Constitution of Kenya provides that the sovereign power of the people shall be vested in the executive, the legislature and the judiciary, reflecting the democratic ideal that if power is concentrated in the hands of a few, it is prone to misuse. This provision aims to safeguard against arbitrary and capricious governance and the abuse of power. In the new constitutional order, there has been instances of tensions between the judiciary and the other arms of government. Unfortunate incidents of members of the Legislature referring to court orders as stupid and idiotic with blatant disregard for court orders have been witnessed. In a government whose legitimacy is vindicated by a court, it is ironical to observe a selective attitude towards respecting subsequent court orders. This paper aims to consider the disregard of court orders against the backdrop of the separation of powers and other relevant principles of constitutionalism.
Application of African customary law: tracing its degradation and analysing the challenges it confronts
(Strathmore University Press, 2016-01) Owino, Lisa
Historically, African customary law has occupied the lower rungs of the legal ladder, often being set aside for more formal laws. This is primarily due to the introduction of western and religious legal systems through the exploration of western nations into Africa, missionary activity and, subsequently, colonisation. However, African countries – including Kenya – are making an effort to give due recognition to customary law. This paper discusses the steady degradation of customary law from the colonial period to the promulgation of the Constitution of Kenya 2010 where there are attempts to resuscitate its application, it also discusses the challenges that the courts may face in this application of customary law today and possible solutions to these challenges.
The justiciability of the right to development in Ghana : mirage or possibility?
(Strathmore University Press, 2016-01) Kwame, Asare Larbi Paa
An analysis of the debate on the right to development (RTD) suggests that the right is pursued as a solution to solve the problems of poverty and underdevelopment. Thus, this study seeks to determine if at the national level in Ghana, the right to development is a right which is opposable by right-holders against the duty bearers. The Study adopted the Black Letter Law approach in analysing the legal effect of relevant law. This study shows that the African Charter is the only multinational treaty that makes RTD legally enforceable. It also shows that Ghana, which is dualist, has not ratified the African Charter. It is however argued that the Ghanaian courts may enforce RTD either as international law or as a human right implicitly guaranteed under the 1992 Constitution of Ghana. This conclusion supports the notion that development is a human rights concern. It further illustrates that the national courts of African countries are uniquely equipped to guarantee the protection of human rights and the development of the African people.
Analysing the future of international criminal justice in Africa: a focus on the ICC
(Strathmore University Press, 2016-01) Ngolo, Emily Wakesho
The International Criminal Court has generally a bad reputation in the African continent as a whole with hostile assertions by the African Union, that the court is nothing but a political tool for the powerful. The Court, plagued with numerous difficulties, has come under pressure to perform, with some doubting its viability. Created by the Rome Statute, and the parties therein governed by general treaty law, enforcement mechanisms of the court have been unsatisfactory at best and this has led to questions being asked as to its survival. There exists a pool of divergent views, in regard to the African Union and the International Criminal Court, in many of the crucial areas of international criminal justice. This paper seeks to find out just how true is the claim that the ICC is ‘dead’ is, and the implications of this in the future of the continent as regards international criminal justice. How important is it for us to preserve international criminal justice? Just how much of a role do states play in this revered area of law? Is its legal viability coming to an unfortunate premature end? What does this mean, then, for the victims of mass atrocities? This paper seeks to show an interplay of the role of states and politics in international criminal justice, and determine then, whether there exists any bright future for this area of law in Africa.
Transitional justice as a path to distributive justice: a jurisprudential and legal case for land restitution in Kenya
(Strathmore University Press, 2016-01) Kamau, Claude
Rawls’ theory of distributive justice may serve as a useful model in conceptualizing a model of the ideal political economy – one that seeks to keep inequalities that have come about as a result of natural accident to a minimum. Moreover, his principles of justice can be used correctively, to address institutional inequalities that have the effect of entrenching social dislocation. Kenya has, over the decades up until now, been riven by injustices relating to land. This has led to the development of a small cluster of landed elites while the majority of citizens are effectively denied land access rights. This is regardless of the fact that most of the land so acquired by the former was acquired irregularly and with disregard of bona fide title of the original occupants. The concept and process of transitional justice may be viewed as the vehicle toward attaining corrective justice and accountability for offences committed in times of national crisis as a restorative measure.
Implementation remains the achilles heel of the African Union: a study of the African Peer-Review Mechanism (APRM)
(Strathmore University Press, 2016-01) Jaoko, Imani
The potential power of Africa is undisputed. The continent is home to a large, young population and is a potential economic powerhouse in the world. In order to realise its full potential, the African Union (AU) must guide the continent. The AU, has however, repeatedly faltered in this regard. The implementation mechanisms of the AU seem to be its Achilles’ heel. The AU suffers no shortage of well-formulated policies; instead it suffers from a chronic inability to follow up on these policies. This paper maps the formation of the AU, the promise it held and the factors that limit the ability of the AU to implement its programs and policies. The paper then briefly examines the African Peer Review Mechanism (APRM) looking at the problems of implementation it has faced and how these may be remedied.
Editorial
(Strathmore University Press, 2016-01) Yongo, Cecil; Jaoko, Imani
Much has been said about the dearth of Kenyan legal scholarship available today. While the reasons for this are varied and debatable, what remains clear is that rather than lament about it, the only way to cure the deficit is simply to research and write. Ours is a humble yet deliberate offering in this respect. The Strathmore Law Review is a student-run publication, exclusively publishing pieces by undergraduate and recently-graduated students of law. We believe that though they may be the youngest members of the profession, the academic research and insights of students can significantly contribute to the positive growth and development of society through law. Inside this volume is a collection of a high quality variety of scholarship. In ‘Implementation Remains the Achilles Heel of the African Union: A Study of the African Peer Review Mechanism’, author Imani Jaoko looks into the chronic inability of the African Union to implement its programs and policies and how this inability continues to limit the effectiveness and power of the body. Using the African Peer Review Mechanism (APRM) as an example, the article attempts to illustrate that, without implementation, the AU’s policy documents will remain statements of intention without any hope of actual realisation. Claude Mwangi, in ‘Transitional Justice as Path to Distributive Justice: A Jurisprudential and Legal Case for Land Restitution in Kenya’, makes an effort to situate the land question in Kenya within the abstract social contract that is the Rawlsian hypothetical—justice as fairness. Accordingly, the author draws upon transitional justice as a useful avenue to bring the land question to a closer approximation of the Rawlsian ideal. Cecil Yongo’s ‘Public Pressure, Temptation of Power and Unconstitutional Actions in the War Against Terrorism in Kenya: Suggesting a Link’, tries to look into what it is that leads to those in power deciding to employ unconstitutional actions in attempting to stem terrorist attacks in Kenya, and what such decisions lead to with regard to human rights and the rule of law. ‘The Justiciability of the Right to Development in Ghana: Mirage or Possibility?’ is a study by Asare Larbi Paa Kwame, that seeks— adopting the Black Letter Law approach in analysing the legal effect of relevant law—to determine whether, at national level in Ghana, the right to development is a right which is opposable by right holders against the duty bearers. In ‘Analysing the Future of International Criminal Justice in Africa: A Focus on the ICC’, Emily Wakesho Ngolo avers that the relationship between the African continent and the International Criminal Court can be best described as antagonistic. She says that there exist a myriad of challenges that have threatened to cripple the workings of the Court, and her essay seeks to show the interplay of the role of states and politics in international criminal justice in relation to the continent, to study the challenges the ICC has faced especially in regard to the cooperation of states and ultimately to assess the extent of the truth in the assertion that the working of the court may be coming to a premature end. This volume of the Strathmore Law Review also has inside it Melissa Mungai’s ‘Fragmentation in a Bid to Defragment: Decentralisation as a Solution to the Challenge of Inclusion in the Kenyan Context’, an essay that attempts to propose decentralisation as a possible solution to the challenge of inclusion in Kenyan society. It expounds on how decentralised systems of governance can enhance inclusiveness in the social, economic and political spheres in which inclusion is looked at. This publication also contains ‘Terrorism as a form of Imperialism: A Case for the Rule of Law’, an essay in which Brian Kimari introduces us to a view of terrorism as a form of imperialism and, following this, attempts to show that, just like other forms of imperialism, battling it does not require any actions outside the realm of rule of law. Lisa Owino attempts to track how African Customary Law lost its lustre and how the Constitution of Kenya 2010 gives it a new lease of life in her essay, ‘African Customary Law: Tracing its Degradation and Analysing the Challenges it Confronts.’ She then completes her analysis by delving into the challenges that African Customary Law faces in its application, given the renewed pre-eminence it has enjoyed as a way of alternative dispute resolution. Through a review of the interface between indigenous knowledge systems and the intellectual property law regime, Wanjiku Karanja—in ‘The Legitimacy of Indigenous Intellectual Property Rights’ Claims— tries to delve into the limitations that conventional intellectual property rights systems face in providing adequate recognition and protection for indigenous intellectual property rights. She attempts to show that the establishment of a sui generis system of protection offers a plausible solution to the inadequacy of existing regimes of protection.Finally, in ‘A Perspective on the Doctrine of Separation of Powers Based on the Response to Court Orders in Kenya’, Emanuel Kibet and Kimberly Wangeci explore scholarship and judicial decisions in a bid to establish the ambits of the doctrine of separation of powers, with a specific focus on the level or respect that has been accorded to court orders in Kenya. As the volume of legal scholarship continues to grow at an encouraging rate, we are hopeful that the Strathmore Law Review will be counted amongst the finest legal literature. We are also hopeful that the voices of young scholars will continue to be heard and considered and that this is only the beginning of the development of a vibrant culture of writing that will expand the scope of discussion and debate of issues in the profession and make it richer. It is our hope that The Strathmore Law Review will herald increased and improved quality of research and writing that will in turn better the law and thus, society.
Terrorism as a form of imperialism : a case for the rule of law
(Strathmore University Press, 2016-01) Kimari, Brian
The war on terror is indeed justified. Terror attacks have resulted in the deaths of many innocent people around the world. Every nation in fact has a duty to protect her citizens from terror attacks and put up measures to prevent and punish terrorists. However, the government also has a duty to uphold the rule of law at all times despite the gravity of the attacks. This paper disputes arguments that terrorism is so novel and so grave that the rule of law can be sacrificed in order to deal with it. This position fails since terrorism is not a novel challenge and further because terrorism manifests itself as a form of imperialism, which is a challenge that has several times been dealt with in world history. Terrorism does not change the normal rules of criminal procedure and thus the rule of law should not be suspended in the name of counter-terrorism.
The legitimacy of indigenous intellectual property rights’ claims
(Strathmore University Press, 2016-01) Wanjiku, Karanja
The notions of indigenous peoples, indigenous knowledge, and heritage and culture have acquired wide usage in international debates on sustainable development and intellectual property protection since the turn of the 20th century. This paper, through an examination of the concept of intellectual property and its intersection with culture and heritage, elucidates the nature and scope of indigenous intellectual property rights as represented by traditional knowledge, traditional cultural expressions and genetic resources. This paper, through a review of the interface between indigenous knowledge systems and the intellectual property law regime, illustrates the limitations of conventional intellectual property rights systems i.e.: copyright, patent, trade secrets and trademark in providing adequate recognition and protection for indigenous intellectual property rights. It also posits that the establishment of a sui generis system of protection offers a plausible solution to the inadequacy of the existing regimes of protection. This paper ultimately seeks to illustrate indigenous people’s legitimate rights to control, access and utilize in any way, including restricting others’ access to, knowledge or information that derives from their unique cultural histories, expressions, practices and contexts, towards the creation of a better society.
Public pressure, temptation of power and unconstitutional actions in the war against terrorism in Kenya: suggesting a link
(Strathmore University Press, 2016-01) Yongo, Cecil
The reaction of the government in Kenya, like many other governments around the world, to terrorist attacks has generally been to strengthen existing laws and enact novel laws, especially those that aid the state’s intelligence-gathering capabilities, along with those that are punitive. In some cases, even in Kenya, States have taken, or have attempted to take, extra-Constitutional and unconstitutional actions. This is the approach that this paper characterises as arising from ‘temptation of power’, and in that regard, this interdisciplinary paper is—through an analysis of scholarship in law, sociology and information/ communication—an attempt to investigate the origin, results and wisdom of such an approach in the war against terror, its effect on the rule of law and minority rights in society; and propose why and how it can be avoided.
Fragmentation in a bid to defragment : decentralisation as a solution to the challenge of inclusion in the Kenyan context
(Strathmore University Press, 2016-01) Mungai, Melissa
Fragmentation is a practical tool suggested in this paper to bring about societal inclusion. Indeed, this is not a novel idea. Kenya has joined the league of practitioners of decentralisation, a system of governance that involves fragmentation. One of the objectives is to achieve national unity. The evil observed today is that decentralisation has brought about broadened separation. The aim of this paper is to highlight how decentralisation as a practical mechanism ought to unite. This is a possible solution to the challenge of inclusion. The end sought is a better society where unity, peace and justice abound. The paper will tackle three spheres of inclusion: social, political and economic which are dealt with separately but in essence they are interlinked with each other. In each of these areas, the paper will illustrate how fragmentation has achieved inclusion.

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