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- ItemRole of arbitration in promotion of access to Justice as mandated by Article 48 of the constitution’s Of Kenya(Strathmore University, 2016) Mtula, Fredrick OdhiamboThe dissertation concludes with reflections on the future of arbitration in Kenya, and the need for modification and harmonization of arbitration laws for peaceful resolution of disputes and serious conflicts within the Kenyan Jurisdiction. This paper explores the possibility of efficiently accessing justice through arbitration. Access to justice is now well entrenched in the current constitution of Kenya 2010 (hereinafter the 20 I 0 constitution) as one of its fundamental pillars. Access to justice by majority of citizenry has been hampered by many unfavorable factors which are inter alia, high filing fees, bureaucracy, complex procedures, illiteracy, distance from the courts and lack of legal knowhow. Arbitration is used to refer to the management of disputes without resorting to litigation. Arbitration has the potential to ensure access to justice for the Kenyan people. This potential should be exploited. Arbitration bears certain attributes that can be tapped and lead to justice and fairness. These attributes include party autonomy, flexibility of the process, non-complex procedures and low cost. This paper argues that arbitration can used in managing disputes effectively since it moves closer to the people e, flexible,expeditious, foster relationships, voluntary and cost-effective and thus facilitate access to justice by a larger part of the population. This paper starts with a brief background and then proceeds to examine the effect of Article 159 of the Constitution, implementation of arbitration, the challenges and opportunities and ends with a short conclusion.
- ItemConstitutional law in the extradition process : an examination of the application of the US-Kenya extradition treaty(Strathmore University, 2016) Boinnet, Robert KiprotichThe old Constitution held severe claw back clauses that undermined the very rights it sought to protect.Under that regime, extradition law lacked integral aspects that led to constriction of the person's right to receive a fair trial.The bill of rights, under the new Constitution, guarantees all persons fundamental rights and freedoms.Certain classes of rights are deemed inalienableBy virtue of the freedom from discrimination',fair trial" and equality before the law," these rights are equally available to fugitives due for arrest and extradition. Therefore, any law that touches on the fundamental rights and freedoms of fugitives must be aligned with, and be in consistent to, the safeguards and rights recognised under the Constitution.
- ItemResolving community land disputes using traditional justice systems in Kenya(Strathmore University, 2016) Ng'etich, Raphael KipkoechCommunity land is not adequately catered for in policy, law and practice in Kenya.Disputes relating to the ownership and use of community land , for example, have not found an appropriate forum for resolution in the formal justice system. Traditional justice systems were used by communities in the pre-colonial period but were phased out with the introduction of laws based on western models of ownership. This study investigated the su itabil ity of traditional justice systems in reso Iving community land disputes, the factors impeding the application of traditional justice systems and came up with recommendations on ways in which traditional justice systems can be restored in the resolution of community land disputes.The study took a qualitative approach in exarmmng the literature review on traditional justice systems and community land . It established that customary Iaw and consequently traditional justice systems are perceived as inferior in the juridical system.Through case studies of traditional justice systems in other jurisdictions, the study was able to bring out the prominent features of traditional justice systems that make them most appropriate for resolving community land disputes. The informal and community inclusive nature of traditional justice systems and reso lution of disputes in the pursu it of restorative justice provide the best forum for resolution of community land disputes . This is due to the fact that community land ownership is characterized by a web of interests and relationships. Land rights are held by different individuals with diverse interests. The relationships, therefore, need to be preserved for the communities to live harmoniously.In order to ensure that community land disputes find an appropriate forum, the study recommends that the barriers hindering the application of customary law be removed. It also proposes the recognition and encouragement of indigenous traditional justice institutions and allowing them to operate without interference from the formal system. It proposes that human rights and due process concerns can be addressed by developing a traditional justice systems policy. In the end, the study makes the finding that traditional justice systems are the most appropriate for resolving community land disputes.
- ItemTraditional dispute resolution mechanisms and access to justice for women in Kenya(Strathmore University, 2016) Maina, Ruth WamuyuThe right to Access to Justice is not only enshrined in our Constitution but also under international human rights instruments. It is a tool through which one is able to ensure the protection of other fundamental rights. It is also an essential component of the rule of law.Kenyan history shows an over emphasis on the court system as the only means through which persons can access justice. However, the court system was plagued with a numerous challenges which left majority of Kenyans at a gross disadvantage.In an effort to undo these injustices, the Constitution of Kenya (20I 0), under Article 48 recognizes the Right to Access Justice. Article 159 recognizes that in order for the state to enhance access to justice, other forms of dispute resolutions must be promoted. This includes Alternative Dispute Resolution and Traditional Dispute resolution Mechanisms (TDRMs). This paper examines the role of TDRMs in enhancing access to justice for women in Kenya.However, customary laws that govern these mechanisms are known to be discriminatory against women and women rarely participate in these processes. The repugnancy test set forth in Article 159, recognizes that TDRMs should not be applied if they are contradicting the Bill of Rights. If subjected to this test, the paper fmds that, TDRMs as they are now, lead to the infringement of women's rights especially those concerning equality and fair trial. Therefore, for TDRMs to become a viable means through which women in Kenya can access justice, the author suggests modifications that can be made to ensure that women's rights are not infringed.
- ItemAnalysing the exclusion of child soldiers seeking asylum under article 1F of the 1951 refugee convention on the principle of the best interests of the child(Strathmore University, 2016) Muthembwa, Yvonne WanzaThis paper assesses the application of Article IF (a) of the Refugee Convention to child soldiers seeking asylum on the best interests principle of the Convention on the Rights of the Child. In conducting the assessment, there is an analysis of various international and regional legal instruments relevant to the rights of the child, refugee law and international criminal law. There is also an analysis of case law from select jurisdictions concerning the matter.There are several issues that have emerged from the analysis such as the lack of a uniform minimum age of criminal responsibility that has led to diverse application of Article I F (a) to child soldiers seeking asylum. There is also the issue of the legal threshold set out in Article IF (a) that has presented a challenge in applying the exclusion clause. The other issue is whether the interpretation of the Refugee Convention and the Convention on the Rights of the Child based on the Vienna Convention on the law of treaties will help to resolve the conflict. The conclusion made by this paper is that the current application of the exclusionary clause to child soldiers seeking asylum is against the best interests of the child,Thus it recommends that for the best interests of the child to be upheld, there is need for states to agree on a minimum age of criminal responsibility that will promote certainty in applying the exclusion clause as well as a revision of the legal threshold of the exclusion clause to reflect the current legal threshold in international criminal law.