LLB Research Projects (2021)

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    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
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    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.
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    An analysis of Kenya’s governing framework on tax incentives: Making a case for the adoption of policies that protect its people and economy
    (Strathmore University, 2021) Mburu, Anne Warigia
    Tax incentives are tools used by governments to encourage Foreign Direct Investment in various sectors of the economy such as the manufacturing and export sector, the extractives industry, the financial services sector, and the agricultural sector. Incentives may take the form of tax deferrals, exemptions, allowances and credits. When properly governed, these incentives have been deemed to be advantageous in promoting the growth of these sectors. In Kenya however, the regulatory framework is lacking in policies that promote transparency, integrity, accountability, and efficiency which are elements of good governance. This study highlights the shortcomings of this regulatory framework. It makes the assertion that the current regulatory framework creates loopholes for bribery, corruption, and tax avoidance. Due to these shortcomings, the tax incentive regime has had a negative impact on Kenya’s economy and its people as it promotes inequity and social injustice. This dissertation, using South Africa as a comparative study, discusses the regulatory policies that Kenya should adopt to prevent these harmful practices. It recommends a re-design of Kenya’s tax incentives that will repeal those that are ineffective; the establishment of a clear eligibility criterion in awarding of incentives; the adoption of rule-based based incentives that do not allow for discretion by the tax authorities; and the enactment of sunset provisions that would prevent the permanence of these incentives. The study relies on literature review to make the above findings and conclusions.
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    Freedom of expression in the music industry: Do the limitations make it non -existent?
    (Strathmore University, 2021) Macharia, Mercy Gathoni
    The music industry is one of the most dominant industries with a lot of individuals involved. The freedom of expression is fundamental to the proper and effectively. Musicians have used their platforms and crafts to speak on political and social injustices in the country. Most of them have found themselves in the wrath of the law for releasing political oriented songs. This paper intends to investigate the relevance of freedom in the industry. It will also look at the limitations of politically oriented free expression. It will look into the umbrella of legislation and institutional framework accorded to the musicians for protection and the law as the basis of the suits against musicians. I will examine the laws and institutions available and check if they are sufficient. I will also check the constitutionality of the laws that are used to charge these people. Among my findings the major one was that there was no specific legislation or institution that protects the musicians against arrest because of politically oriented free expression. I recommend a revision of the legislation to offer more protection to the musicians
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    A situation of statelessness in Kenya Are the laws in place and government mitigating actions, sufficient in protecting the children of Nubian descent
    (Strathmore University, 2021) Khabure, Sabina Beata
    The Right to a Nationality is an essential facet in the overall wellbeing of any living being, including children. The Right to a nationality is explicitly provided for under Article 53(1)(a) of the Constitution of Kenya and Section 11 of the Children’s Act. The Children of Nubian Descent in Kenya have however not fully enjoyed the right to nationality as provided under black letter of the Law. They have been denied the right to nationality from birth, forced to undergo a rigorous discriminatory vetting process leading to the denial of other fundamental rights like health and education. Riddled with the aforementioned challenges, the Nubian Community sought intervention of the African Committee on the Rights and Welfare of the Child. The African Committee declared that the Government of Kenya was in contravention of their Right to nationality, further recommending that the Government of Kenya ought to grant the Nubian Community a nationality and incorporate mechanisms to ensure that no child was left behind. Despite the decision by the African Committee, no laws have been put in place to uphold the Right to a nationality for Children of Nubian descent. Therefore, this study is conducted based on the following three objectives; determining the laws in place that relate to the status of statelessness, providing an analysis on the effects the status of statelessness has had on the children of Nubian descent and lastly, to investigate the measures the Government of Kenya has taken to mitigate the situation affecting the children of Nubian descent