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(Strathmore University Press, 2013) Kameri-Mbote, Patricia; Odote, Collins; Musembi, Celestine; Kamande, Wilson
This is a pioneering study on a critical, yet infinitely complex subject, in the setting of legal and constitutional rights in an African country: the subject of property rights. If the property-rights label appears clear-cut enough, and readily lends itself to market-oriented criteria of assessment, particularly in the industrialized world, it is quite the reverse in Africa and , especially, where land is concerned. It is clear from the Constitution of Kenya, 2010 which accords land a full Chapter', that this subject bears an elevated status over and above the Bill-of-Rights provisions on "protection of right to property?" . Clearly, the Kenyan people in their constituent power, have perceived land as more than just property which readily converts to market value - with relevant injuries being recompensed conclusively with awards of damages. The Constitution sets out governing principles on land policy. Finite, yet socially, economically and culturally vital , land in Kenya has merited the declaration that it "shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable>." Public land , community land and private land are the three categorizations made in the Constitution; and community land, a core sphere of the instant work, refers to land attached, historically, socially and for beneficial use, to a distinct population group: an ethnic community, a cultural community, or some other social interest-group. The Constitution, in its solicitude for social-group welfare, lays a foundation for policy, programming and juristic openings towards practical solutions. That a governance question so fundamental in a progressive constitutional order merits legal attention, is the obvious justification for the instant publication. The work devotes its attention to : community interests and the land question; Kenya's experiences in relation to community land; and comparative experiences drawn from further a field. The authors have drawn a notable distinction between land as a basis of defined private rights , as known in ordinary practice of law - on the one hand - and , on the other hand, land as a "bundle of rights", of composite dimensions. In the latter case , as the authors remark, "land is critical to the economic, social and cultural development" ; land is "linked to sovereignty" ; "land is a politically sensitive issue [and is] culturally complex"; " [land] has spiritual and religious . dimensions in communities that perceive it as a host of the spirit of the community and the residence of the deity". From such a foundation, the authors have then considered the important question as to whether the bundle of entitlements centred on land should, as in the conventional property-rights system, vest in one person exclusively.
The Common Law, Judges' Law
(Strathmore University Press, 2014) Ojwang', Jackton B.
Setting out from a background of scholarship evolved over a period of decades, I joined the High Court Bench in October 2003, with the enthusiasm to match the law as learnt, to the reality of dispute settlement. First assigned duty in the Civil Division at the principal station, and thereafter continually adjudicating civil disputes, I formed the impression, especially after serving for more than three years in the Criminal Division and after experiencing the entire range of justiciable causes, that civil cases, offered the widest scope for the development of the typical legal concept, and for the formulation of novel concepts of jurisprudence. The reason is that, unlike in criminal or cognate matters, which on constitutional or historical grounds were bounded by formal law, the civil domain rested on private grievance, and accorded the judge considerable liberty in the application of principle an d in law-making. At the same time I gained the perception , with in the framework of civil litigation, that the law relating to property was by far the most tested sphere of dispute settlement. By no means surprising, in view of the constrained pace of growth of the national economy, attending upon a rapid pace of population growth, such as obtains in most African countries. The basic endowment of nature, in the form of land, and land-based resources and activities, lies at the core of social tensions, and the resultant urgency of dispute settlement; and these, thus, constitute the larger part of the incidence of civil litigation. Such disputes do not, in most cases, find anything akin to solution-templates in the form of enacted law. And the common law tradition has come in handy - with its considerable scope for judicial law-making. This scenario conforms to reality in East Africa, which had the legacy of the common law, coming both formally through legislative prescription, and informally through the agency of judicial officers of Commonwealth origin, as well as through a system of legal education and training greatly influenced by the Commonwealth experience.The classic depict ion of the place of judicial creativity, even when the subject-matter is govern ed by enacted law, is that by Lord Denning: "It would certainly save the judges trouble if Acts of Parliament were drafted with Divine prescience and perfect clarity. In the absence of it...a judge...must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute but also from a consideration of the social conditions which have given rise to it , and of the mischief which it was passed to remedy, and then he must implement the written word so as to give 'forces of life' to the intention of the legislature....» t In the same way, there was an unlimited scope for the Kenyan judge to interpret the law, breathe life into it and, for all practical purposes, make law. It is the clear significance of landed property in the incidence of litigation , that led to the choice of this sphere as the forum for examining evolving judicial practice. This work is a depiction of the judge's law-creative role, in the common law tradition. The judge's context of work is, however, not exactly the same in East Africa as in England - the cradle of the common law tradition. In most countries of Africa, the fundamental principles of law are laid out in a written Constitution, that is binding on the courts and all public agencies. It is, thus, a matter of professional interest, how the superior courts have performed the common-law role, in the context of the Constitution as the basic norm. In this work, it is the sphere of property law that has been adopted as the medium for examining the mode of discharge of the common law function, in the context of the principles elaborated in the Constitution.
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.
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.
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.
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.
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.
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.
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.
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.
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.
International Criminal Justice in Africa
(Strathmore University Press, 2016) HJ van der Merwe; Kemp, Gerhard; Asaala, Evelyne Owiye; Asin, Jerusha; Bakama, Eugène; Maunganidze, Ottilia Anna; Retief, Jeanne-Mari; Siwingwa, Emilia
This book contains a collection of papers by members of the Konrad Adenauer Stiftung’s African Group of Experts on International Criminal Justice. The book is the third of its kind1 and follows in the footsteps of its predecessors by drawing together a number of wide-ranging and contemporaneous perspectives relating to the prosecution of international crime on the African continent.2 This year’s publication contains seven contributions from new and old members of the group. Collectively, they offer an African perspective regarding the prospects and challenges facing the project of international criminal justice in Africa. The contributions cover situations and cases from across the continent as well as larger debates and contemporary issues affecting and shaping the application of international criminal law in Africa.
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.

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