Strathmore Law Journal
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The Undelivered Promise : Constitutional Environmental Rights and Judicial Redress in Kenya and South Africa
Get PDFThe project of constitutionalising environmental rights is nearly complete with over two-thirds of the United Nations member states having enshrined these rights in their constitutions. Despite the widespread adoption, recent studies on environmental protection indicate that the project has not improved in commensurate terms. Environmental law scholars are now engaged in bridging the ‘implementation gap’. In an attempt to locate the implementation gap problem, this paper analyses the achievements made under the environmental rights constitutionalisation project. Using Kenya and South Africa as case studies, the author finds that while substantial progress has been made, the conceptualisation of the right to a clean and healthy environment has yet to receive a harmonised meaning. The impact, this paper notes, is the differentiated interpretation and application that greatly undermine environmental protection. As a remedy, the author argues that the adoption of a country’s ‘fundamental value[s]’ as the basis of understanding environmental rights not only provides the widest protection but also allows a harmonised application
‘Alternative Justice Systems’ in Kenya : The Taskforce’s Conceptual Minefield
Get PDFThis paper critiques several fundamental concepts conceived and introduced into the discourse on Alternative Justice Systems (AJS) in Kenya by the Judiciary’s ‘Taskforce on AJS’. To attain this objective, the authors highlight the lack of clarity on the concepts of Access to Justice (A2J), AJS, mechanisms and methods, customs and norms, law and legal systems, and repugnancy as used by the Taskforce. This paper provides clarity on the concept of A2J as ‘socio-economic justice’, AJS as a ‘justice system’ within the general legal system and serves only as an alternative to a dispute resolution mechanism, ‘mechanisms’ as a broader framework which contains ‘methods’, customs and norms which are not analogous with, and may or may not be part of, the ‘law and legal system’, and the ‘repugnancy clause’, which is innocuous and has no content until applied within a specific space-time. Within the discussion on AJS, the authors also clarify the distinctions among the concepts of ‘legal system’, ‘justice system’ and the ‘judiciary’; ‘state or formal’ and ‘non-state or informal’ institutions and processes; ‘judicial’ and ‘non-judicial’ institutions and processes, and ‘traditional’, ‘community’, ‘customary’, ‘African’ or ‘indigenous’ systems. The paper concludes that the Taskforce’s report applies these concepts in a manner that is confusing or conflated, hence, leading to a conceptual minefield
Flawed Evidence : A Recipe for Wrongful Conviction in Nigeria
Get PDFJudicial decisions are made based on the evidence presented before the court. In criminal cases, evidence must be overwhelmingly convincing—beyond a reasonable doubt—to secure a conviction of the defendant. When evidence is obtained through flawed processes or is improperly evaluated by the court, it often results in wrongful conviction. Reliance on coerced confessional statements, faulty eyewitness identifications, jailhouse informants, flawed forensic evidence, and improper judicial evaluation of evidence have been identified as major causes of wrongful conviction in Nigeria. This issue is prevalent in Nigeria, and the courts tend to be somewhat lenient regarding these practices. While learning from foreign jurisdictions, it is suggested that Nigerian courts strictly adhere to the provisions of the law on the admission of confessional statements and rigorously evaluate evidence to prevent miscarriages of justice. This would compel law enforcement agents and prosecutorial authorities to focus on intelligence gathering and the proper use of forensic science in criminal investigations, rather than relying heavily on confessional statements. There is also a need for statutory entrenchment of these recommendations
Plastic Pollution and our Moral Responsibility: Lessons from the African Eco-Communitarian Responsibility Approach
Get PDFRecently, one typically hears a weighty emphasis on managing plastic waste globally. Thisis due to its detrimental effect on the environment, human health, and the ecosystem. It has been noted that the African continent produces less plastic waste than the global waste landscape. Yet, Africa stands among the most vulnerable continents regarding the harmful effects of plastic pollution. Recent discussions on plastic pollution and its management have often overlooked the African pollution management voice. This paper argues that the Eco-Communitarian Responsibility approach suggests a plausible insight for redefining our moral responsibilities towards plastic pollution in Africa. By exploring the principles of this approach, we can contribute a perspectivebeyond formal law to the global discourse on sustainable environmental practices.The Eco-Communitarian Responsibility approach emphasizes unique values such as interconnectedness and collective responsibility, highlighting the need for diverse perspectives to effectively address plastic pollution in the African context. Using a qualitative research methodology, the article comprehensively reviewed existing literature on plastic pollution in Africa and the principles of the Eco-Communitarian Responsibility approach.The article is structured in five sections: first, the introduction, sets the article\u27s tone. Nextis a discussion of the impact of plastic pollution, highlighting its effects on humans and the ecosystem. The third section examines the current management strategies, exposing the challenges and benefits of each strategy. The fourth section introduces the Eco-Communitarian Responsibility approach and discusses how its principles can informAfrican plastic waste management. This is followed by a conclusion highlighting the implications of the findings and the lessons for future research and policy development
The Role of Indigenous and Traditional Knowledge in Combatting Plastic Pollution
Get PDFPlastic pollution is wreaking havoc in our societies, altering social, economic, cultural and environmental lives. The ubiquity of plastics and its low acquisition costs makes plastics permeate into every sector of our lives, a feature that presents difficulties in eradicating the crisis. From disrupting kinship systems to indigenous and local communities’ lifestyles, reversing plastic pollution requires a whole of society approach tapping into all knowledge types and systems that may provide the required solutions. This paper underscores the critical role of indigenous and local communities and their knowledge systems in combating plastic pollution. It argues that indigenous and local communities must be included in the discourses on addressing plastic pollution as they are custodians of valuable indigenous and traditional knowledge critical for combatting plastic pollution. Taking cue from the increasing recognition of the role of indigenous and traditional knowledge in environmental conservation, the paper argues that the integration of indigenous and traditional knowledge with emerging scientific methodologies provides profound insights in the search for pathways to a plastic-free planet
The Relevance of the Doctrines of Natural Law, Human Rights and International Law to the Principle of Self-Determination: The Case of Nigeria
Get PDFIn recent times, worldwide, agitations for self-determination, whether internal or external (secession), are becoming common. Also, in Nigeria, the agitation for self-determination has become intense. Historically, multiple independent nationalities were cobbled together by the British to form the nation called “Nigeria” without first seeking and obtaining their consent. Invariably, Nigeria is often under threats of instability due to separatist agitations from her diverse ethnic groups. Although, self-determination is expressed to be a “right’’ in different international legal instruments like the United Nations Charter and the African Charter on Human and Peoples’ Rights (ACHPR) and even the International Court of Justice (ICJ) has declared it to be of erga omnes in nature, the nature of this “right’ is still controversial. For instance, it is argued that the right to self-determination originated from natural law. Separatists in Nigeria, agitating for self-determination anchor their arguments on this contention. This paper examine the agitations for self-determination in Nigeria from the standpoints of natural law, the doctrine of human rights and the principles of international law. The objectives are to know if self-determination originated from natural law, and to see the nexus between self-determination and the doctrine of human rights. Also, to identify the status of self-determination as a right under international law; and how all these apply to the Nigerian situation. The paper adopted doctrinal research methodology, using both primary and secondary sources. The paper concluded that the tripartite doctrines of natural law, human rights and international law apply to the Nigerian situation
Custodial Congestion: An Examination of the Legal Hurdles of Holding Charge Practice in Nigeria
Get PDFCustodial congestion still persists as one of the biggest challenges to Nigeria’s Criminal Justice System. This is attributed to the operation ineptitudes of the Nigerian police force which employs means such as holding charges. This paper examines the practice of holding charges in Nigeria as a major contributor to the congestion of correctional facilities in Nigeria. This paper contends that the practice of holding charges is unconstitutional; in violation of the principles of fair hearing; and presumption of innocence and merely a means of administrative expediency. This paper concludes that the practice of holding charge in Nigeria undermines the rights of accused persons and calls for urgent reforms to the Nigerian criminal justice system to ensure that the protection of human rights is in tandem with the basic international human rights laws which mandate States to respect and ensure everybody’s right to personal liberty and security, and therefore, proffer some policy recommendations
The ‘But For’ Test in Proving Causation in Insurance Claims in Uganda
Get PDFCausation in insurance law refers to the cause-and-effect relationship between an event and the resulting loss or damage. Causation is an important concept because it determines whether an insured party is entitled to coverage under a particular policy. There are several legal principles that are used to evaluate causation in insurance disputes, including the proximate cause rule and the ‘but for’ test. The ‘but for’ test, which inquires whether the loss would not have occurred ‘but for’ the occurrence of the covered event, has been criticized for its oversimplification of the causation analysis and its failure to adequately consider the complex causal chain that often underlies loss. In addition, the ‘but for’ test tends to draw a number of false negatives while taking into account certain irrelevant considerations. In contrast, the proximate cause rule, which requires that the covered event be the primary cause of the loss or damage, offers a more nuanced and comprehensive approach to causation analysis. It considers the full range of factors that may have contributed to the loss or damage and allows for a more flexible and context-specific analysis of causation. This article argued that the ‘but for’ test is an unreliable method for proving causation in insurance law and that the proximate cause rule is more appropriate. This article concluded that the proximate cause rule is a more reliable method for proving causation in insurance law and should be adopted as the standard for determining coverage under an insurance policy