Strathmore Law Journal
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The Sacrosanct? The Challenge in Holding the United Nations Responsible for the Failure to Prevent Genocide
Get PDFStates are collapsing and genocidal acts are being committed or may happen any moment. In these instances, states look to the United Nations (UN) to act in order to prevent genocide from happening. This article seeks to determine if there exists an obligation under international law for the UN to prevent genocide, and in that event, can the UN be held responsible under international law for failure to comply with this obligation? This article further analyses these questions by looking at the aspect of Responsibility to Protect (R2P) which elicits an obligation to prevent genocide first to states and then to the UN. At the very minimum, every state must protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. In the case of states failing to undertake this obligation, the UN is bound to step in and undertake this obligation. Hence, this is a responsibility that is an obligation to states first and then to the UN. In summation, this article establishes that the obligation to prevent genocide is a customary international law obligation. Further, the UN is bound by this obligation. However, it is shown that the procedures that are available to address its failure to uphold this obligation are inconsequential since the UN has absolute immunity and any decision, even if holding the UN responsible, cannot be enforced as against it. Neverthless, this article provides some recommendation(s) as to how the UN can play a role in ensuring accountability for failures within its ambit
The Death Penalty under the International Covenant on Civil and Political Rights: Some Reflections for African States: Case Law
Get PDFAs part of the ongoing movement in support of the abolition of the death penalty across the world, this article presents a selection of cases brought before the United Nations Human Rights Committee (the Committee) on violations of the right to life. With a special focus on Zambian cases, the objective is to demonstrate how the Committee’s views reflect its longstanding jurisprudence that the death penalty should only be applied in the most exceptional circumstances
Developing Jurisprudence or Creating Chaos? Reflections on the Decisions of the Court of Appeal of Kenya on Selected Topical Areas of Law (Speech)
Get PDFAll knowledge is value-laden, influenced by the multifarious inarticulate major premises deriving from our inescapable ideological baggage. However, on occasions such as this, it behooves all people of good sense and logic to endeavour to be objective in their views. Occasions such as these, call upon us to question our own assumptions. We are required to turn our version of logic upside down, inside out, in a critical and evaluative sense. The purpose of all these is to establish a broad spectrum of objectivity that informs the ideas being presented. Part of my observations and verdicts in the analytical aspects of the paper have been rather unflattering—perhaps harsh. That is what we do in the academy. But I guess, they are only but that part of the labour pains we have submitted ourselves to in the birth of a new jurisprudential trajectory for the CoA—a coherent and predictable jurisprudence
Unpacking the African Backlash to the International Criminal Court (ICC): The Case of Uganda and Kenya
Get PDFFrom early bright beginnings and close cooperation, African relations with the International Criminal Court (ICC or Court) have recently witnessed a sharp deterioration. The explanations for this fall-out vary from the personal style of the first Prosecutor of the Court—Luis Moreno Ocampo—to the lack of a comprehensive appreciation of the reasons for which the institution was established in the first instance. This article specifically zeroes in on the troubled interactions between the Court and the governments of Uganda and Kenya. These two instances demonstrate that while the charge of anti-African bias has become the dominant discourse of contemporary scholarship on the issue, structural and systemic factors are not given enough attention. Particular attention is given to the way the cases of the Lord’s Resistance Army (LRA) and President Uhuru Kenyatta (from Uganda and Kenya respectively) found their way to the ICC and the subsequent developments relating thereto. In doing so, the article explores, among other factors, the way International Criminal Justice was politicised, and its links to enduring questions of global political and economic inequality. Such conditions of inequality find manifestation in the backlash by African countries towards what has been described as the ICC’s selective approach. At the same time, opportunism and double-standards abound on all sides as there is both an inconsistent and hypocritical embrace of the basic tenets of International Criminal Law and Justice. Ultimately, the victims of human rights violations are short-changed while those actors who really need to be brought to account remain beyond sanction
Regional Mechanisms and Intra-State Conflicts: Implementing the African Union’s Principle of Non-Indifference?
Get PDFThe member states of the Organisation of African Unity (OAU) established the African Union (AU) in 2001, following recognition that Africa needed a more effective institution that could maintain peace and security. In particular,the 1994 genocide in Rwanda demonstrated to the continent that it needed to enhance its ability to act before conflicts became unmanageable and destructive.The AU consequently established an institutional framework for the prevention, management, and resolution of conflicts. This institutional framework consistsof two parallel frameworks, namely the African Peace and Security Architecture (APSA)
Regulating Terrorism Before the Act of Terror: A comparative study
Get PDFIn light of the growing risks that terrorism presents to civilised society, Western governments have adopted a broad range of laws and administrative regulations designed to thwart terrorists before they can commit acts of terror. Beyond mere conspiracy or attempt, these laws have sought to proscribe activity that exists as a stand-alone offence but that acts as a proxy for the sorts of offences that constitute true terror activity. This article serves to examine these various approaches. It groups these approaches into four categories: prohibitions on membership in terror organisations; intangible support to terror organisations; restrictions on travel to areas that have terror groups operating openly; and money laundering and other financial crimes tied to the financing of terror organisations. It then identifies a single example within each group to use as a case study to explore the contours of the specific approach, while tying the example to larger trends within Western countries’ legal systems. Finally, this article considers the implications for countries considering adopting one or more of these approaches, including the ways that multiple approaches can work in tandem. The article does not make specific recommendations, but rather recognises that each country’s government must consider the benefits and costs of adopting these approaches carefully and with an eye to both its security and its society
A Review of the Health Act 2017 Using the Availability, Accessibility, Acceptability and Quality Framework
Get PDFThe International Covenant on Economic, Social and Cultural Rights (ICESCR) provides for the right to the highest attainable standard of health. Kenya has ratified this Covenant and is, therefore, bound by its provisions. The Constitution of Kenya (2010) further establishes a framework for expanding rights and freedoms under Article 24 (4). The Constitution expressly provides for the right to health under Article 43 (1), which led to the enactment of the Health Act in 2017 (the Act). Article 43 (1) (a) of the Constitution states: \u27Every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care.\u27 On this light, the right to health will be analyzed in the following lines
Copyright in Digital Television Broadcasting in Kenya: An Analysis of the Royal Media Services Case
Get PDFKenyan superior courts missed an opportunity to discuss and authoritatively settle the law on the nature of copyright in broadcasts and the effect of the must carry rule in digital broadcasting through their decisions in the Royal Media Services case. The Supreme Court, in arriving at its decision, failed to be guided by Kenyan law on copyright in broadcasts and the must carry rule in three key areas. First, the Supreme Court relied on the Philippines’ decision on the definition of a broadcasting organisation without considering the provisions of the Copyright Act (Chapter 130) and the Kenya Information and Communication Act (Chapter 411). Second, the Supreme Court relied on the doctrine of fair use as envisaged in the Philippines copyright regime, yet Section 26 of the Kenyan Copyright Act provides for fair dealing. Third, the Supreme Court relied on the public interest defence without discussing its basis and establishing its parameters, especially since public interest is not provided for in Copyright Act. The Supreme Court erred in determining that rebroadcasting of local broadcasts by subscription television licencees was not an infringement of copyright in broadcast
The Enhanced Rights for Detained Persons: Application of the Remedy of Habeas Corpus under the Cameroon Criminal Procedure Code
No full textThe incorporation of habeas corpus and bail in the Cameroonian Criminal Procedure Code has not only entrenched them in law, but has also widened and deepened their scope, with a view to obtaining, as far as possible, the respect for human rights and the rule of law in order to ensure a more functional criminal justice system in Cameroon. The incorporation of habeas corpus and bail in the Cameroon criminal trial process will restrain the arbitrary and illegal use of the powers of the judicial police officers and ensure respect of human rights. Although there are some challenges in the application of habeas corpus and bail such as misuse of the remedies by some overzealous authorities, defiance of court orders in the enforcement of the writ of habeas corpus by administrative authorities, and erosion of confidence in the Judiciary, there is optimism in the conscious efforts being made to ensure that habeas corpus and bail are properly applied so that the Cameroonian Criminal Procedure Code attains its full potential