LLB Research Projects (2021)

Permanent URI for this collection

http://hdl.handle.net/11071/12255

Browse

Now showing 1 - 20 of 100

The right of children of incarcerated persons to family life: Towards a more child-centred approach
(Strathmore University, 2021) Wambui, Anita Eunice
All children are vulnerable members of society and require the protection of the family and the State. This vulnerability is heightened when children are separated from their parents, in which case, they should be allowed to maintain contact with them unless it is contrary to their best interest. This applies even when the separation is state-sanctioned such as detention, imprisonment or any other legal deprivation of liberty. The State, in such instances, has the twin responsibilities of non-interference with the family life of these children, and the mandate to adopt measures to ensure that this right is protected. This paper focuses on the dissonances in the laws governing contact and visitation, from a child’s rights perspective and a prisoner’s rights perspective, and how these dissonances translate into the reality of this children. It aims to shed light on the negative consequences of only adopting visitation laws and policies from a prisoner’s rights perspective. This is because they frame what should ideally be a child’s right as a prisoner’s privilege, which can be taken away at the will of the prison officials. The research methodology applied in this paper is desktop research and zoom interviews to obtain empirical data and to inform the literature review. The paper analyses child laws relevant to children of imprisoned parents against the four guiding principles of the CRC and juxtaposes these rights with the provisions on prisoner’s rights. It finds that the problematic framing of contact and visitation as a ‘privilege’ often violates the child’s right to maintain a family life with his or her imprisoned parents. It briefly highlights the situation in the Council of Europe, greatly attributing the good practices to the existence of a child-centred policy. It draws on this policy and practice to make recommendations to improve the situation in Kenya. Its main recommendation is that the child should be the focus of any policy likely to affect him or her
Investigating the extent to which gender neutrality is achieved in The implementation of the sexual offences act
(Strathmore University, 2021) Mwando, Michelle
Sexual violence is a serious problem in society. In Kenya, the Sexual Offences Act was introduced to make provisions about sexual offences, their definition, prevention and protection of all persons from unlawful sexual acts. Unfortunately, there is a gender imbalance in the implementation of the SOAsexual offence legislation in Kenya. While the SOA has attempted to foster gender neutrality in the drafting, this is not reflected in the society. Male victims fail to be given the due attention. Although national and international statistics reveal that more women are victims of sexual violence, the male victims need to be recognized and protected by the legal framework. The paper uses desktop research to determine the extent to which gender neutrality is achieved in the implementation of the SOA. The TFSOA revealed the challenges faced during the various stages of seeking justice. These challenges addressed in this paper are mainly specific to men. A comparative study with South Africa is used to provide some recommended measures that Kenya can take in order to promote the achievement of this neutrality in implementation.
Rwandan electoral law on legislature’s composition: An instance of stealth authoritarianism
(Strathmore University, 2021) Butera, Michael
In Rwanda, a multiparty system and pluralistic democracy are Constitutionally recognised. In fact, since the Genocide against the Tutsi in 1994, the country has held four multiparty legislative elections. Yet, all the four elections have resulted in overwhelming victories for the ruling and dominant party, Rwanda Patriotic Front. Curious of such phenomenon, this research critically examines the Organic Law Governing Elections of 2019 (as a suspicious ground for electoral authoritarianism) with a focus on three sections of the law: Section 89, 90, and 79 which provide for the electoral threshold of five percent and single nationwide constituency with a closed-list PR, respectively. The aim of the analysis is to establish whether the three sections embody subtle forms of electoral authoritarian controls and whether they deprive the legislative elections of their democratic substance. The study finds that the electoral law through specified sections of the organic law encompasses and advances some form of electoral authoritarianism. Therefore, concluding that the admittance of opposition parties and independent candidates to the electoral arena is simply meant to serve as a democratic façade for legitimacy purposes and a formality to fulfill the principle of political opposition while at the same time favouring and giving a decisive edge to the ruling political party hence entrenching its power monopoly. The study adopts a well explored theory of electoral authoritarianism as its framework to understanding the Rwandan PR. It concludes by recommending some electoral reforms that might help in democratising and liberalising elections in Rwanda and to also have a proportional representative chamber of deputies.
The Protection of dependent self-employed workers against sexual harassment within the work place under labour laws in Kenya
(Strathmore University, 2021) Keilla, Kerubo Okari
The world of work as we know it today is constantly evolving majorly due to the ever-expanding service sector. The moribund traditional employment structures that had once informed the backdrop of labour legislation can no longer be sufficient for the Non-Standard forms of Employment recognized by the International labour Organisation. The protections of dependent self-employed workers against sexual harassment in Kenya is centered as the subject of this thesis. The study investigates whether they are adequately protected under employment laws in Kenya in comparison with other jurisdictions and proceeds to give recommendations on measures and mechanisms to ascertain the protection against sexual harassment within the work place
Children’s digital human rights: Another glitch in the code
(Strathmore University, 2021) Kiberu, Winfred Nakkazi
This research study, guided by scholarly articles, institutional reports, and relevant legal instruments, sought to understand what constitute digital human rights and uncover whether children possess these rights. An analysis of doctrinal research and legislation on children’s engagement and interactions with the digital world, revealed that children do possess digital human rights, though some rights require the guidance of their parents or guardians. Based on the findings and recommendations of prominent scholars, institutions and leaders on children’s rights and internet governance, this dissertation proposes that children’s existing offline rights must be applied and enforced to the internet, not just theoretically. Additionally, digital literacy education is required for both children and adults, to enhance their knowledge the rights, duties,and consequences children have on the internet, thus creating more responsible digital citizens.
The Effect of transformative constitutionalism on constitutional interpretation in Kenya An Analysis of presidential election petitions
(Strathmore University, 2021) Ogetii, Arnold Ombasa
Kenya’s history of rampant constitutional abuse is well documented. During this period of abuse, as Professor Githu Muigai demonstrates, Kenyans could not look towards the courts as the jurisprudence emanating from them endorsed notions as dangerous as that of a president being above the law. The same jurisprudence also illustrates the judiciary’s willingness to use technical reasons to dismiss cases on substantive rights. The judiciary was particularly unreliable on constitutional issues that touched on elections. For instance, the case of James Aggrey Orengo v Daniel Toroitich Arap Moi. In this case the James Orengo contended that the declaration of Moi as the winner of the 1992 Presidential elections could not be valid. This was because Moi had already served two terms as president and a further term was ‘prohibited by Section 9(2) of the Constitution.’ In a highly controversial decision that has been termed as ‘illogical and toward a specific political goal’, the court declared Moi as validly elected.This type of constitutional interpretation which clearly favoured the incumbent president was not uncommon as can be illustrated by the cases of Kenneth Stanley Njindo Matiba v Daniel Toroitich Arap Moi, Daniel Toroitich Arap Moi v John Harun Mwau and Mwai Kibaki v Daniel Toroitich Arap Moi. The consensus among scholars was, and is, that these decisions were superbly flawed and subversive of the constitution.
Assessment of the status of the Bible and the Quran under intellectual property law, with emphasis on traditional knowledge and cultural expression
(Strathmore University, 2021) Muriithi, Albert Mwangi
This paper critically examines the intellectual property law surrounding the Scriptures of the Abrahamic faiths: The Bible- consisting of the Old Testament and the New Testament- and the Quran. Despite being revered throughout the world and having some measure of influence on a possible majority of the cultures of the world, these Scriptures are still the product of specific cultures that wrote them down and first held them as their own cultural treasures. That ideally would entitle them to some form of protection under the law of traditional knowledge and cultural expression. Additionally, the texts have been subject time and again to cultural and personal reinterpretations by different persons and groups of persons, often with detrimental consequences to the ideal cohesion of society. This includes but is not limited to manipulation of persons for the personal benefit of others, factionalism, and conflict both within and among religious groups. The purpose of this dissertation is to analyse the legal sphere behind the cultural preservation of the Scriptures in question, to discover the steps that can reasonably be taken to place these Scriptures under at the protection of a cultural authority to preserve the original cultural expression and doctrinal interpretation of the original authors and their primary audience. Hopefully, this may provide a legal dam to protect the original cultural meaning from being permanently lost in translation and transmission.
An Examination of Gender-Based Discrimination against Women in the Kenyan Workplace in Light of Section 5 of the Employment Act, 2007
(Strathmore University, 2021) Langat, Venus Cherop
The fight against Gender Based Discrimination against women in the Kenyan workplace can be traced as far back as the years subsequent to attaining independence. During this period,the Kenyan Government, through the adoption of the principles of equality, by way of thedeclaration of human rights, sought to promote the equality of both genders. Employment relations in Kenya are governed by the 2007 Employment Act, which dedicates a whole section to outlaw gender-based discrimination. However, employers may be finding loopholes to discriminate against women, while still seeming to comply with the law. The failure to provide a comprehensive and succinct description of what is fair and equal in labour practices has been used as a tool to circumvent the law. Through qualitative analysis of statutes, case law on interpretation of the Employment Act of 2007and other secondary sources, this study investigates the permissive nature of the Employment Act in Kenya and how employers may be exploiting it to discriminate against women. Moreover, the research endeavours to recommend corrective measures which could prevent the possibility of exploitation of legal loopholes in the Employment Act
Sentencing of child offenders who turn eighteen at the time of or prior to sentencing in Kenya
(2021) Anyangu, Andere Tracey;
Recognition that a young person does not magically gain full maturity and all the attributes of adulthood when they turn 18 is increasingly widespread within the criminal justice system. Courts in many jurisdictions worldwide have affirmed this when considering whether a certain sentence can be applied to a child offender who has turned 18 during proceedings. The England and Wales Court of Appeal has posited that reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. The Western Cape High Court has also confirmed that there is no arbitrary end to childhood for children who have committed offences before they attained the age of adulthood, and are still being processed through the criminal justice system when they turn 18. As per these courts, the youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has turned 18. Following this, this study discusses the concerns that arise when it comes to sentencing child offenders who turn 18 before or at the time of sentencing in the Kenyan context. These include whether such offenders will no longer be eligible for the special protections afforded to child offenders, and whether they will be facing adult sentences. Other concerns are on how such offenders should be restituted where courts make a mistake sentencing them; and what can be done to ensure that such offenders are reintegrated back into society if they are able to successfully appeal against sentences derived from a mistake. In doing so, this study adopts the principle of best interests of a child and uses mainly case law to look into the approach that courts in Kenya should adopt when imposing sentences on child offenders who turn 18 during proceedings. The reason for this is that there is limited scholarly work on this matter and the law does not speak on it. Ultimately, the study concludes by giving recommendations to all duty bearers to respect, protect and fulfil the rights of children when fashioning an appropriate sentence for child offenders who turn 18 during proceedings. The recommendations include minimizing system delays by dealing with cases involving children in a timely manner and putting the best interests of the child first by considering how the sentence will influence the course of their development as young adults.
Generational statelessness and rights A case of children from the Nubian community in Kenya
(Strathmore University, 2021) Muimi, Antoinette Moseka
Statelessness leaves individuals in vulnerable situations, it is primarily associated with lack of having ties to a country or in other words lack of nationality. Where certain individuals lack nationality, they fall victim to discrimination within a given state, this is often the case for minority groups such as the Nubian people. They often lack adequate representation in government which makes it difficult for their matters to be addressed with urgency. The Government of Kenya has made attempts to deal with this issue however it is still a big problem amongst minority communities. This study seeks to explore the rights of children from stateless groups in Kenya with a focus on the Nubian children. The study is based on two theories: the theory of basic needs proposed by John Burton and the theory of justice proposed by John Rawls. The findings of this study indicate that statelessness in Kenya is caused by legal and administrative factors. It demonstrates that granting citizenship rights to the Nubian children will allow them to equally enjoy the rights provided for under the (2010) Constitution of Kenya. Results from this study revealed that refusal to recognise Nubian children as Kenyan nationals has affected their access to education, healthcare and employment opportunities. The study concludes that the legal framework lacks effective measures to eradicate statelessness and does not adequately guarantee the protection of rights of children from stateless groups.
An analysis of the efficacy of the EAC protocol on peace and security a case for institutional reforms
(Strathmore University, 2021) Munene, Remmy Wanjau
Presence of peace and security are very important for the socio-economic and political development of any region. In a bid to ensure that peace and security are effectively maintained and promoted in the East African region, the EAC Protocol on Peace and Security was established. However, one of its major setbacks is that it contains weak institutions that are incomprehensive in nature. Unfortunately, such an aspect has the potential of hindering its effective implementation. Thus, this study analyses the efficacy of the EAC Protocol in preventing and managing security threats in the East African region from an institutional perspective. It achieves this by discussing the legal and institutional frameworks of the EAC Protocol and then assessing the inadequacies that exist in the latter. This study adopts a doctrinal research methodology that involves discussing relevant legal instruments, as well as books, journal articles, reports and online sources, as it makes its analysis. Further, it conducts a comparative study by assessing the legal and institutional frameworks of the ECOWAS Protocol and also uses two case studies. From the analysis that is made, it is established that the EAC Protocol is largely ineffective because it has an incomprehensive institutional framework that hinders its effective implementation. In a bid to address the foregoing, this study recommends that the EAC Protocol should be amended so as to revamp the features of its institutional framework – through enhancing its established institutional structures, incorporating relevant institutions and roles, and establishing an effective peace and security fund
Legal transplantation and its effects of customary law in Kenya: The case of marriage
(Strathmore University, 2021) Staussi, Jamie Eric
At the time where Kenya was part of the United Kingdom’s colonial empire, the United Kingdom with the aim of easier administration of the Kenyan population introduced its own legal system, the common law, and in doing so engaging in the process called Legal Transplantation. Legal Transplantation refers to the borrowing or movement of one legal system from one country to another. By this process, the United Kingdom relegated the rules and norms that guided indigenous institutions in general, and marriage in particular below State law. This implementation of a foreign legal system negatively affected the institution of marriage which will be the focus of the research. It changed for instance the very definition of marriage, caused the breakup of families, and confused or blurred the process of succession. The negative effect introduced a challenge that the legislator needed to solve. That is why in 1967 the legislator set a commission to harmonize legal provisions on marriage as much as possible. In 2010 The new Constitution of Kenya sought to increase the protection of marriage and, in response to the constitutional provision, in 2014 parliament passed the current Marriage Act2.This research will analyse and compare the effects of the introduction of common law on the institution of marriage, the subsequent relegation of customary law as well as the post-colonial attempts by the Kenyan legislator to create greater space for customary law in order to protect this institution. The study will use the qualitative analysis of the problem through case law, and secondary sources to assess the impact of the transplanted legal system and the corrective customary law on the institution of marriage.
Informing Kenya’s perspective on climate change through climate litigation
(Strathmore University, 2021) Osoro, Amra Mongina Nyagaka
Progress lies in economic development; however, it causes environmental harm. This dissertation examines the ability of transformative adjudication to combat the current unsustainable development trend in Kenya. It explores sustainable development as the middle ground for economic development that safeguards the ecosystem. It further examines climate justice in tackling government inactivity in adequately implementing climate change legislation and policies to uphold environmental rights. This study employs doctrinal legal research in the analysis of case law, statute, academic literature, and grey literature in examining the legal avenues to combat climate change in Kenya. The outcome of the study suggests that climate litigation is the appropriate means to secure environmental rights to combat climate change despite the presence of a global climate change regime. The study recommends the implementation of this regime to address climate change in Kenya. This study is therefore aimed at examining the possibility of using Kenya as a blueprint for addressing climate change in developing nations.
Kenya’s sports governance: Finding the middle ground
(Strathmore University, 2021) Kuria, Wilson Waita
Kenya’s 2013 Sports Act is among the statutes that were created just after the promulgation of the country’s 2010 Constitution with the good intent to govern and consequently promote sports in Kenya. However, ever since, the Act has been facing certain hinderances in its application and a good number of these issues can be attributed to the situation of the principle of autonomy in the Act. The implementation of the Act essentially signified the country’s move to intervention in terms of sports and this did not seem to sit too well with some of the major players in the country’s sports sector. Despite its visible effort to allow for some amount of autonomy however, issues regarding autonomy have still arisen and have been responsible for a huge amount of the problems presently facing sports in our country. Also, the laws governing sports are no longer clear and this has resulted in some sort of conflict of laws whereby the parties to the consequent disputes are then tasked with choosing between whether to adhere to the rules of their respective sports organisations or the national laws. This project thus seeks to show that the root of the said problem is in the fact that the present amount of autonomy allowed is not sufficient and that the best solution is primarily a form of qualified autonomy.
Implementation of the two thirds gender rule in the Kenyan parliament
(Strathmore University, 2021) Athena, Ayapan Ekoro
The purpose of this paper is to analyse the two-thirds gender rule in Kenya and to determine whether there are sufficient mechanisms to implement it. This will be done through a specific look at women in parliament. The Constitution clearly defines that women and men have equal rights, this is rather effected in Article 27(3) which provides that both women and men have the right to equal treatment, including the right to equal opportunities in both political, economic, cultural and social spheres. Furthermore, under Article 27(8) provides that the state shall take legislative measures to implement the two thirds gender rule in order to ensure gender parity, however, until now parliament has not enacted any legislation to implement the two thirds gender principle in order to promote gender equality. This study will be purely based on qualitative research and will use the doctrinal methodology. It will involve the review of statutes and courts jurisprudence as well as secondary data. The findings of this study could therefore be added to the emerging body of literature recommending innovative interpretations of Article 27(8) in a manner that achieves better gender balance in terms of representation in parliament
Affirmative action laws and policies: Interrogating their effectiveness in the promotion of substantive gender-based equality in Kenya
(Strathmore University, 2021) Manani, Stacie Jessica Ongecha
The aim of this research is to determine why gender-based affirmative action laws and policies seem not to yield desirable results in the public sector and to suggest necessary legal reforms. This is to be done by actualising the following objectives; to investigate the impact of patriarchy on gender equality in the public sector in Kenya; to identify and discuss the legal, policy and institutional framework on gender-based affirmative action in Kenya and its response to gender disparities in Kenya’s public sector; to examine international best practices with regard to gender equality and the level of compliance with the same in Rwanda and to determine whether it offers any lessons to Kenya. This study focuses primarily on elective and appointive positions and is conducted using doctrinal research. This approach involves the review of relevant primary and secondary sources including legislation, case law, books, journals, newspaper and other articles as well as online internet sources. During this research, it has been observed that Kenya has rich and all-inclusive legal, institutional and policy frameworks on gender equality and equity. The unsatisfactory status quo highlighted above is attributable to the patriarchal approaches to constitutional interpretation, legislative processes and decision-making, which have proven to be a resistant barrier to achieving gender equality in the public sphere. Further, the manifest tension between the promotion of substantive equality vis-à-vis the promotion of formal equality has contributed to the gender disparities in the public sector as there seems to be a general endorsement of formal equality stemming from the lack of clarity in the frameworks.For there to be observable change, it is recommended that the relevant frameworks currently in place ought to be modified to be gender-specific, expansive (taking into account the intersectional nature of discrimination) and highly specialised. Further, priority ought to be given to measures that promote equality of results, while those that promote equality of opportunity ought to take a supplementary role
Supported Decision-Making: Assessing Kenya’s Legal Framework against the Benchmark of Article 12 of The Convention on the Rights of Persons with Disabilities
(Strathmore University, 2021) Nkonge, Paula Mukami
The Convention on the Rights of Persons with Disabilities (The CRPD) is the authority on International Disability Law. Taking it as the benchmark, this paper seeks to assess the Kenyan Legal Framework on disability as against Article 12 of The CRPD. The research is undertaken using doctrinal methodology, which entails using the law and legal commentary from primary and secondary sources such as; statutes, case law, books, journals, newspapers and reports. The paper reaches the finding that Kenyan laws are yet to implement Article 12 of The CRPD. There are several outdated provisions found in the Children’s Act, The Mental Health Act and The Marriage Act which deny the legal capacity of Persons with Disabilities(PWDs) contrary to The CRPD. The overall aim of this paper is to reconcile the legal obligations under The CRPD with the law and practice in Kenya. In light of the converse findings, this paper makes a case for the incorporation of Supported Decision-Making into the Kenyan Legal Framework to remedy the situation and bring Kenyan laws in line with The CRPD.
Non-regulation of virtual currencies: The chink in the anti-corruption armour
(Strathmore University, 2021) Kimani, Anthony Ndichu
For a long time and with little success, Kenya has battled the vice that is corruption and misappropriation of public funds. Presently, with the emergence and continuous growth of digital currencies also known as virtual or cryptocurrencies, the scales are threatening to tip and not in any way to Kenya’s favour. This paper demystifies virtual currencies in particular Bitcoin and attempts to identify ways in which loopholes in the law that might lead to the fight against corruption to be lost may be sealed. This project analyses the laws presently available locally to fight money laundering in comparison to other jurisdictions and the steps they have taken to try and stay ahead of the curve. In terms of methodology, this project is doctrinal in nature. There is reliance on statute, caselaw, books, journals, reports, newspapers, and internet resources which have been reviewed and analysed to provide the information used in the study. The major finding in the paper is that most jurisdictions are opting to attempt to regulate cryptocurrencies in as far as the role it plays in money laundering is concerned. Another finding is that in all these states, regulation takes place at the exchange level where bitcoins are exchanged for regular fiat currency. The conclusion was then drawn that Kenya can do the same to capitalize on Bitcoin’s promising influence and curb money laundering.
Cryptocurrencies effects on monetary sovereignty: Advancing a Case for their regulation
(Strathmore University, 2021) Makena, Cindy
Cryptocurrencies are a form of virtual currencies that are enabled by cryptography and is supported by a technology known as Blockchain. The first form of cryptocurrency, the Bitcoin was introduced in the year 2008 by the bitcoin ‘white paper’ by Satoshi Nakamoto. This type of currency gained popularity because it was not issued or regulated by an intermediary. All transactions were peer to peer. Also, the fact that the transactions are anonymous. However, the reception of cryptocurrencies has been variant from jurisdiction to jurisdiction ranging from bans to tailoring the current laws to regulate these currencies like the United States America to issuing warnings against the use and trade of cryptocurrencies. For instance, the Central Bank of Kenya issued a warning stating that the customers of these virtual currencies should be aware of the fact that these currencies are not regulated, they are attractive to criminals who have the intention to use it for money laundering and they are volatile, in that their value often fluctuates. In addition to this, there is a risk on the monetary sovereignty especially with the rise of stablecoins such as Libra. This study shall therefore analyse the risks posed by Cryptocurrencies and suggest a legal framework for its regulation in Kenya.
The pivot point of sexual offences: Issue of consent in rape cases.
(Strathmore University, 2021) Kamau, Ann Wairimu
Rape as per the legislation is defined as any act of sexual intercourse that is forced upon a person. It can be done against an adult or a child (defilement). Rape has been closely associated and even sometimes used in the place of gender-based violence, or sexual violence, although they are not the same thing. The act may be carried out by physical force, coercion , abuse of authority or against a person who is incapable of valid consent, such as one who is unconscious, incapacitated, or below the legal age of consent. Consent on the other hand, is when someone agrees, gives permission, or says ‘yes’ to sexual activity with someone else. At the heart of consent is the idea that every person, man, or woman, has a right to personal sovereignty – not to be acted upon by someone else in a sexual manner unless he or she gives clear permission to do so. It is the duty of anyone initiating the sexual activity to get this permission from the other party. Absence of clear permission means you cannot go ahead and engage her or him in the act-this is the first step in maintaining the ‘very basic right to bodily integrity. Consent plays a great role in the determination of guilt in sexual offence cases. This is because the proof of lack of consent is an essential element in determining whether to proceed with a sexual offence charge against any alleged offender in any court of law. Despite the issue of consent being well defined by the respective legislations, the issue of consent is one that is really discombobulating especially in an unequal society, where women and men are not on the same level, inter alia socially, politically, economically unequal. Over the recent years, rape has become a common crime in Kenya as per a current study which showed that the rape rate for Kenya as per 2015 was 1.9 cases per 100,000 population. Day after day a woman comes out claiming to have been raped. This issue of consent has been addressed by both the local (the penal code and the sexual offences act) and international legislation such as The Statute of the International Criminal Court (ICC)

Browse

Browsing LLB Research Projects (2021) by Issue Date

Results Per Page

Sort Options