SLS Scholarly Articles

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ADR, access to justice and development in Kenya
(Kariuki Muigua and Company, 2014-05) Kariuki, Muigua; Kariuki, Francis
Development is not feasible in a conflict situation. Conflicts and disputes must be managed effectively and expeditiously for development to take place. Formal mechanisms for conflict management have not always been effective in managing conflicts. Mechanisms such as courts have been inaccessible by the poor owing to technicalities, complex procedures, high costs and delays. There has been a shift towards informal mechanisms for conflict management, including alternative dispute resolution (ADR) and traditional dispute resolution mechanisms (TDRM). ADR and TDRM processes contribute to enhanced access to justice by all, and in particular among the poor people. Enhanced access to justice strengthens the Rule of Law. Existing literature in development studies has shown a correlation between the Rule of Law and levels of development. ADR and TDRMs are thus quintessential from a developmental perspective. The Kenyan legal framework has recognized the role of ADR and TDRM in development. Existing laws require the use of ADR and TDRM in resolving a myriad of disputes such as those relating to land, family matters, commercial and political questions. In this paper the authors argue that the recognition of ADR and TDRMs within the legal framework in Kenya, will contribute towards economic, social, cultural and political development. This recognition expands the array of mechanisms that parties to a dispute can employ in ventilating their disputes. Enhanced access to justice will also contribute to respect for the rule of law, which is an essential precondition to development. ADR is also becoming a lucrative economic venture with many professionals now working as full-time or part-time ADR practitioners. In addition, a number of organisations have established ADR centres. Some of these centres are expected to be major attractions for foreign investments in the country as they will handle international arbitrations. ADR is also being taught in schools and in universities, and is thus expected to contribute to social development.
Anthropology for Rebels (A different way of doing philosophical anthropology)
(Strathmore University Press, Nairobi, 2015) Branya, John
Anthropology for Rebels is a highly recommended book for those interested in discovering what our person is and how it has been understood over the centuries. The title reflects the underlining attitude of the author, of not accepting any approach that reduces the human person to something inferior to its total splendor. This attitude contrasts with the common points of view one may find in pseudo–scientific and popular articles that try to reduce the human excellence to the method used to study rocks, plants, animals or numbers. The method to study the person should be above the normal use of the abstractive intelligence, or the intelligence limited to reason. There is a higher level of knowledge to the discursive knowledge, which some authors call intuitive knowledge and that Professor Sellés calls habitual knowledge. The book gives also profound insights on human affections, education, ethics and politics as part and parcel of the world created by the person. Another added advantage of this book is to be a good introduction to the Philosophical Anthropology initiated by the Spanish Philosopher Leonardo Polo and the understanding of the four personal transcendental, which give a deeper vision of the social nature of man, its radical freedom, a new view of the acting intelligence of Aristotle and a profound view of personal love.
Customary law systems for water governance in Kenya
(Edward Elgar Publishing, 2015-07-31) Gachenga, Elizabeth
In many jurisdictions including Kenya, the term ‘law’ is generally assumed to refer to enacted rules emanating from the state. Consequently, legal systems for water resource governance are considered largely as consisting of statutory law – rules enacted by state organs. Nonetheless, in many countries aspects of water resource management, particularly at the local level, include systems of rules that are beyond the scope of statutory frameworks, with local users developing informal norms and institutions to govern their water resources. This chapter uses the term ‘customary law’ to refer to these informal/ non-statutory normative and institutional frameworks. Customary law systems for natural resource governance continue to exist in many countries. The resilience of customary water governance regimes has led water law practitioners and researchers in the last two decades to acknowledge that these regimes constitute a factor to be reckoned with when preparing ‘modern’ legislation for water resource governance. Research has demonstrated that in some cases, their resilience is the result of an inherent adaptive capacity that makes customary law systems more sustainable than state developed systems. Further, as these customary governance forms are self-developed, they represent a more democratic process of development of law and thus are more likely to be successful at achieving sustainability.
Decriminalization of abortion and gender perspective
Miranda, Martha Dr.
The initiatives that promote the decriminalization of abortion have shown the lack of clarity and precision that exists around some terms used by those who promote it. This is the case of the use of the term "gender perspective". It is common to find the term gender in the various provisions relating to the protection of the "rights of women" with terms like "gender discrimination", "gender violence", "gender equity" among others. But, what is the real meaning of gender perspective? Therefore, the purpose of this paper is to distinguish between gender perspective and gender ideology, and determine which of these concepts is connected to the request for abortion. Also, make a brief analysis of the ways in which women's movements have begun the search for equality between men and women. This will make it possible to identify the thought that underlies the claims of abortion as a woman's right.
Difference between the gender perspective and the gender ideology
(Universidad de La Sabana, ) Miranda, Martha Dr.
For more than a decade, the evolution of the word “gender” and its accompanying discourse have become increasingly important to intellectual debates and practice. the term was initially used in a grammatical arena to identify masculine, feminine and neutral words. however, the term has changed since the second half of the XX Century given the increasing use in other fields, often replacing the word sex, traditionally used to distinguish the human male-female duality. this fact is evident in contemporary anthropological, social, political and legal discourse. and although the word “gender” does not have a positive or negative meaning per se, its many interpretations are fairly problematic. two interpretations stand out today: “gender perspective” and “gender ideology.”
Doing after thinking, let reason prevail
(Daily Nation, ) Franceschi, Luis
Newspaper article published on Daily Nation Thursday June 20, 2013
Gender dimensions of customary water resource governance : Marakwet case study
(Weaver Press, 2015) Gachenga, Elizabeth
This book approaches water and sanitation as an African gender and human rights issue. Empirical case studies from Kenya, Malawi, South Africa and Zimbabwe show how coexisting international, national and local regulations of water and sanitation respond to the ways in which different groups of rural and urban women gain access to water for personal, domestic and livelihood purposes. The authors, who are lawyers, sociologists, political scientists and anthropologists, explore how women cope in contexts where they lack secure rights, and participation in water governance institutions, formal and informal. The research shows how women – as producers of family food – rely on water from multiple sources that are governed by community based norms and institutions which recognize the right to water for livelihood. How these ‘common pool water resources’ – due to protection gaps in both international and national law – are threatened by large-scale development and commercialization initiatives, facilitated through national permit systems, is a key concern. The studies demonstrate that existing water governance structures lack mechanisms which make them accountable to poor and vulnerable waters users on the ground, most importantly women. Our findings thus underscore the need to intensify measures to hold states accountable, not just in water services provision, but in assuring the basic human right to clean drinking water and sanitation; and also to protect water for livelihoods.
Governance,institutions & the human condition
(LawAfrica, ) Gachenga, Elizabeth; Franceschi, Luis; Akech, Migai; Lutz, David W
This is a series of papers at the Fifth Annual Strathmore Conference published by LawAfrica
Governing the commons through customary law systems of water governance
(CEESP and IUCN, 2014) Gachenga, Elizabeth
The resilience of customary law systems of natural resource governance in many parts of the world lends credence to Ostrom’s theory on the governance of commons. Ostrom argued that resource users who enjoy relative autonomy in the design of rules for governing and managing common-pool resources, frequently achieve better economic (as well as more equitable) outcomes than when experts do this for them.2 In support of this theory and acknowledging that most common pool resource governance regimes are based on a customary law system, Bosselman has sought to demonstrate a link between customary law systems and positive outcomes for sustainable development.3 Using a case study of the customary law system of water governance of the Marakwet community of Kenya, this paper tests and builds on the design principles and tools developed by Ostrom, to study normative institutions in a dynamic environment.4 The paper proposes an analytical framework that helps identify the features that strengthen customary institutions and ensure their adaptability and resource sustainability. This exercise illustrates the parallels between commons governance and customary law governance of natural resources.
ICC is on trial in Africa
(Daily Nation, ) Franceschi, Luis
The relationship between Kenya and the ICC is not an international relationship in the traditional sense. It is rather a devolved relationship. We could brand the ICC mediocre, unfair and irrelevant; a Western tool for manipulation, but we freely signed and ratified the Rome Statute. Withdrawing from the ICC now in the midst of the process would be a misadvised step, legally and politically.
Kenya's water act : opportunities for integration of customary institutions of water governance through water resources users associations and water service providers
(LawText, 2011) Gachenga, Elizabeth
The need to develop sustainable systems for water resource governance in an environment of increasing scarcity and climatic variability has led to the re-evaluation of institutional frameworks. There has been a growing appreciation of the need to coordinate institutions involved in order to achieve sustainable water resource governance. Law and regulatory frameworks for water governance in some countries face the challenge of integrating parallel institutional arrangements such as community-based or customary institutions with statutory institutions. The provision for water users associations (WUAs) in the water statutes of several developing countries is an example of the attempt to bring these parallel institutions into the statutory framework. By recognizing WUAs, the statutes provide pre-existing institutions with the opportunity, upon registration, to participate in water resource governance issues. It is argued that this makes them a potential tool for integrating pre-existing customary institutions into the statutory system and in some way providing an interface between statutory and customary law systems. In Kenya's Water Act, the concept of WUAs is embodied in Water Resources Users Associations (WRUAs) and to some extent in Water Service Providers (WSPs). This article analyses the extent to which WRUAs and WSPs are effective in integrating customary institutions into statutory frameworks using a case study of the customary water resource governance system of the Marakwet.
Legal and policy frameworks for climate-friendly energy generation in Africa : energy security for future development
(Macmillan Education Namibia, 2015) Gachenga, Elizabeth; Paul Martin; Sadeq Z. Bigdeli; Trevor Daya-Winterbottom; Willemien du Plessis; Amanda Kennedy
Energy security is one of the most important future challenges for the international agenda of security, peace, and stability worldwide. Increasing energy supply needs and the aim of achieving greater energy independence are playing a mounting role in politics, not only in the United States, Europe, Russia, China and India, but also in Africa as the continent with the highest potential for energy resources for the future. The quest for control and commercialisation of energy resources is also a reality in sub-Saharan Africa. Nigeria and Angola are the biggest oil-exporting countries after the countries of the Middle East. Namibia is one of the biggest uranium-exploiting countries, while Tanzania may in future become one of the most important gas-exporting African countries to world markets. The United Nations forecasts that the African population will be around 2 billion people in 2050, and therefore the expanding demand for energy will be one of the challenges with which Africa is faced, along with poverty reduction, food security, water security and combating the impacts of climate change. But Africa’s challenges are also world challenges, because energy security is a global priority, with global markets, interests and needs. More than ever, a reliable discussion about the importance of coordinating secure energy supplies worldwide, and especially the impact on Africa, is essential for the future of this continent, as part of the international energy security structure. The African Union represents a continent which is faced with different aims, security interests and needs, if one compares the destabilising developments over the past 10 years in the north, south, east and west of Africa. Which path will Africa take in respect of rapidly growing energy demands on the continent – the European or the Asian path?
Stein’s ethic of care: an alternative perspective to reflections on women lawyering
(Routledge publishing, 2011) Gachenga, Elizabeth
The book features significant and timely contributions which take contemporary and non-mainstream perspectives on the current and future shape of the legal profession. The essays not only describe the rapidly changing profession but canvas different approaches to scholarship on the legal profession. The collection seeks to explore a diverse and contextualised profession from a number of angles. Authors examine how the public sees lawyers and how lawyers see their own profession; how we practise law and how this practice shapes lawyers; how such cultural and professional practice intersects with institutional structures of the law to create certain legal outcomes; and how we regulate the legal profession to modify or institute ethical practice. The volume provides insights into legal culture and ethics from the perspective of authors from Australia, Canada, England, the United States, New Zealand and Kenya – a diversity of national perspectives that give valuable insights into developments in the profession at the local and global level. It also illustrates diversity within the profession by tracing differing professional career trajectories based on raced or gendered barriers, alternative ethical strategies and the impact of organisational cultures in which lawyers practice.
Strathmore University social and political philosophy senior students personal development projects 2009
(Strathmore University, 2009) Branya, John
INTRODUCTION This is a collection of Personal Development Projects reports done by some of the 66 evening class students of Principles of Ethics during the 2nd Semester of the year 2009. There are not necesarily the best, but they are significant. They show how «applied philosophy» could benefit all of us. A sound grounding of philosophical concepts improves our way of seeing ourselves, others and our environment. Because actions follows knowledge, proper knowledge of what we are and what we are meant to do, improves our actions, for our own and others benefit. The reports included in this sampler have been modified to preserve the privacy of the authors. Except for names and companies, the rest are «real life» situations, perceptions, actitudes and behaviours. The purpose of this sampler is to help each one of us to «budget our life» seeing how our colleagues do it. For those who want to try I have included the instructions given to the students for the project. The results of these projects are not the consequence of one subject, or one lecturer, but of the sum of efforts of the students themselves, many lecturers, mentors and other personnel who remain, as the authors, anonimous in the background, for example the project methodology was developed by Ms. C. Dean among others. edit this entry delete this entry
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
Tapping fresh currents: fostering early-career researchers in transdisciplinary water governance research
(Water Alternatives, ) Gachenga, Elizabeth; Patterson, James J.; Lukasiewicz, Anna; Wallis, Philip J.; Rubenstein, Naomi; Coffey, Brian; Lynch, A. Jasmyn J.
Water governance is an important, yet complex and contested field. A central challenge for researchers is to engage with multiple understandings and perspectives that can shape water governance, and to move towards more transdisciplinary approaches. These challenges are magnified for early-career researchers (ECRs), and while the need for transdisciplinary approaches and better support for ECRs is increasingly recognised, there remains a lack of understanding of how to achieve this within the wider research community. Thus, this paper investigates through an auto-ethnographic inquiry the practical experiences and challenges faced by a diverse group of ECRs engaging in water governance research. Reflecting on our own endeavours and relevant literature, we identify a range of path-finding experiences and challenges, and explore strategies employed by ECRs to navigate the 'uncharted waters' of evolving career pathways in water governance research. 'Communities of Practice' are identified as a promising opportunity to support ECRs by enhancing opportunities for reflection and learning. Overall, we argue that there is significant merit in enhancing the way in which water governance research is understood, and improving the means by which ECRs are supported to build capability and contribute in this field.
The recognition of indigenous customary law in water resource management
(LawText Publishing Limited, ) Gachenga, Elizabeth; Craig, Donna
The role and place of customary law in `modern' statutory legal systems has been the subject of academic discourse, particularly in nations which had traditional legal systems in existence before the subsequent super-imposition of statutory systems. The resilience of the traditional systems in some cases results in implementation challenges for the modern systems, thus necessitating the recognition of customary law by the subsequent statutory legal systems. `Law' means a body of rules recognised by a society as binding. When a society accepts as legitimate more than one system of rules having different sources, and in some cases in contradiction with each other, the society is said to have a polycentric, pluralistic legal system. Customary law comprises those sets of rules, established through the process of socialisation, that enable members of a community to distinguish accept-able from unacceptable behaviour and includes con-ventions and usages adhered to and followed by people through generations. The primary emphasis in most Anglo-American jur-isdictions has been on research, policy and laws relating to the recognition of customary law in the context of property rights and the criminal justice systems. In nations such as Australia, where there are no treaty rights or legal recognition of Indigenous sovereignty, recognising customary law in the sustain-able use and management of resources, including water, provides some important strategies for Indigen-ous peoples. Much more research and discussion is required on this aspect of environmental law and the rights of local communities, Indigenous and tribal peoples. This article seeks to contribute to this discourse by considering customary law in the context of international and domestic law with a particular focus on its potential role in natural resource management (NRM) (and particularly water resource management) based sustainable livelihoods. Drawing from the experience in Australia, the article reflects on some features of Indigenous customary law for NRM and forms of recognition of customary law proposed and used in Australia. It makes a case for legal pluralism as a more effective context for the recognition of customary law in NRM
The right to use customary law systems for water governance: a case of the Marakwet of Kenya
(IUCN Environmental Law Academy, ) Gachenga, Elizabeth
In many common law jurisdictions, legal systems for water resource governance are conceived primarily in the context of statutory law. However, in many cases water resource development and management, particularly at the local level, is governed by informal norms, practices and institutions developed by the resource users. Many indigenous peoples and local communities use customary law systems to govern their natural resources. The importance of customary systems for water resource governance is particularly evident in Sub-Saharan Africa where land and water resources are regulated by plural normative systems including statutory law and customary laws of different ethnic groups. For example, Kenya has a long tradition of customary governance as demonstrated by the Marakwet customary water governance system, which dates back to approximately 400 years ago. These customary institutions play a vital role in water resource management particularly in rural areas where two-thirds of the country’s population lives. In spite of this, water reform in most of these countries has focused primarily on the statutory legal systems, with little attention given to customary law systems. Kenya’s water law, as the case with most modern water law, contains limited provisions for the recognition of customary law and the accommodation of customary law institutions. The failure to accommodate or integrate customary law systems with statutory systems of water governance adversely affects the capacity of society to attain sustainable development. Various models for recognition of customary law systems of water governance such as land rights and native title approaches as well as agreement-making have been debated in environmental law scholarship. Using a case study of the Marakwet, this paper critically evaluates the utility of these models in the context of non-settler countries with an indigenous population such as Kenya. The paper argues that in these countries, rights-based approaches may be more effective and thus explores the potential of using the human right to water as a basis for the recognition of customary law systems for water resource governance in the context of a case study of the Marakwet of Kenya.
Thinking about Thinking (Theory of knowledge)
(Strathmore University Press, Nairobi, 2013) Branya, John
We are continuously thinking but we are not aware of the process unless we stop what we are doing and pause to think about our thinking. The same hap- pens with breathing. Once we are conscious of our breathing we can start experiment to know our powers: we can try to breathe faster, deeper, stop breathing for a while. We can then change impressions with our friends and even devote time to study the process of breathing as a scientist does. To think about thinking is to pause and try to go as deeper as we can into this tool that makes it possible we think about any other thing than thinking itself. While it is true that we can think very well without stopping to consider

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