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- ItemA 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, KimberlyThe 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.
- ItemTerrorism as a form of imperialism : a case for the rule of law(Strathmore University Press, 2016-01) Kimari, BrianThe 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.
- ItemThe legitimacy of indigenous intellectual property rights’ claims(Strathmore University Press, 2016-01) Wanjiku, KaranjaThe 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.
- ItemApplication of African customary law: tracing its degradation and analysing the challenges it confronts(Strathmore University Press, 2016-01) Owino, LisaHistorically, 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.
- ItemFragmentation in a bid to defragment : decentralisation as a solution to the challenge of inclusion in the Kenyan context(Strathmore University Press, 2016-01) Mungai, MelissaFragmentation 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.