Strathmore Law Journal
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Remedies to Illicit Financial Flows from Transfer Pricing of Services and Hosting Intellectual Property in Kenya
Get PDFNumerous reports in the last decade have focused on the challenges to African economies that emanate from the illicit transfers of funds and other valuable assets within some global corporations. A primary concern is the impact of these transfers on the taxable income of African subsidiaries. Two broad categories of intra-group transfers are of particular interest, partly because of the complexities they raise. One comprises transfers in payment of services exchanged among associated enterprises, while the other pertains to transfers by subsidiaries in payment of the value of intellectual assets attributed to the corporate centre of the global corporation. This article highlights the challenges raised by these transfers through case studies. It examines possible mechanisms to mitigate the challenges, drawing attention to current and impending developments. It concludes that there are good prospects for curbing illicit transfers linked to the examined types of transactions
The Limits of Targeted Killing in Counterterrorism Operations: An International Law Perspective
Get PDFDespite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with
The Countering Terrorism and Violet Extremism While Promoting the Right of Peoples to Peace and Security in Africa
No full textThe United Nations Security Council (UNSC) increasingly emphasises the need for a comprehensive approach to countering the spread of terrorism and violent extremism. In its Resolution 2178 (2014), the UNSC encourages member statesm to engage with relevant local communities and non-governmental actors in developing strategies to counter the violent extremist narrative that can incite terrorist acts. The role played by the African Commission on Human and Peoples’ Rights in the struggle against terrorism is really important. The African approach to human rights has decisively contributed to understanding, preventing and countering this phenomenon. In this line, Article 23(1) of the African Charter on Human and Peoples’ Rights (African Charter) states that all peoples shall have the right to national and international peace and security, as well as the principles of friendly relations among states, which form the basic foundation of the African Union. The African Charter does not contain enough directives to aid the enforcement of the right. The African Charter limits the whole question of peace to ensuring that an asylum-seeker does not engage in subversive activities against the country of origin or any other State Party to the African Charter, and provides a prohibition to the use of the territory of a member state for subversive or terrorist activities. Finally, on 18 November 2016, the Third Committee of the General Assembly of the United Nations adopted the Declaration on the Right to Peace, whose preambular section not only deeply deplored all acts of terrorism, but also stressed that all measures taken in the fight against terrorism must be in compliance with the obligations of states under international law
Security and devolution in Kenya: Struggles in applying constitutional provisions to local politics
Get PDFThe Fourth Schedule of the Constitution of Kenya (2010 Constitution) retains security as a function of National Government. At the same time, the 2010 Constitution creates 47 county governments with considerable autonomy in public service provision. Many county governors have demanded a say in the deployment of security services because of the inequality of security provision throughout Kenya’s history. While the 2010 Constitution is clear, however, in not providing much of a local say in the way security is deployed, it is found that in their day-to-day activities security officials depend on a close relationship with local politicians. This article examines constitutional provisions in the context of the history of security in Kenya and its practical deployment under the new political framework. It is argued that the long-term reasons for the inconsistent and insensitive use of security forces endure in contemporary dilemmas over the relationship between national security provision and local politics. Regardless of what the 2010 Constitution says, successful deployment of security depends on cooperative local political relations. Attempt to establish these links can often lead county governors to overstep their mandates, however, contravening the 2010 Constitution. We are therefore not only witnessing a transformative of the negotiated structure of security\u27s deployment.
Religious Pluralism in Practice: Defining Secularism in Kenya’s Headscarf Cases
Get PDFPresent day Kenyan society represents a plurality of peoples, ideas and consequently, approaches to life, a state well embodied in the Constitution of Kenya. The apparent diversity presents challenges to the preservation of the multi-coloured nature of the society and at the same time guaranteeing rights and freedoms as envisaged by the 2010 Constitution. The preamble to the Constitution reconciles the two interests by celebrating the ‘ethnic, cultural and religious diversity’ of Kenya and envisioning an existence ‘in peace and unity as one indivisible sovereign nation’. A marriage of diversity and peaceful coexistence requires tolerance in order to balance competing rights. Within Kenya’s plural society, the most visible religion freedom disputes have been between the Christian majority and Muslim minority. Present constitutional clashes between the two religions date back to the Constitution of Kenya, 1963 (Independence Constitution) and its 1969 revision (Repealed Constitution), which granted Kadhis’ courts limited jurisdiction within a 10-mile coastal strip of the country. Following heated debate on matters of religious pluralism during the constitutional review process, the 2010 Constitution introduced a more accommodative framework for religious freedom. These matters will be analyzed in the following lines
\u27South Africa is Not an Accused\u27: State (non) Co-operation with the ICC and the Case of the Arrest Warrants for President Omar al-Bashir
Get PDFThere is a confrontation between the International Criminal Court (ICC) and state parties, and at this particular point in time, the Republic of South Africa, in connection with the arrest warrants issued by the Court for the President of Sudan in 2009 and 2010. Between 13 and 15 June 2015, President Omar al-Bashir was present on the territory of South Africa for purposes of attending the 25th Ordinary Session of the Assembly of the African Union. Despite judgments from both the ICC upholding the obligation of South African authorities to arrest and surrender President Bashir and parallel domestic proceedings at the South African High Court in which authorities were ordered to prevent the departure of President Bashir from South African territory pending final judicial decision on whether the Government was required to execute the ICC arrest warrants, President Bashir nevertheless departed from the Waterkloof military air base on 15 June 2015, even as Government lawyers assured the High Court in a hearing on the same date that he was still in the country. Only after his plane had safely landed in Khartoum did the same lawyers then notify the High Court that he had left South Africa. This article will analyze this case in the following lines
The Elusive Legal Definition of Terrorism at the United Nations: An Inhibition to the Criminal Justice Paradigm at the State Level?
Get PDFTerrorism is indisputably a serious security threat to states and individuals. Yet, by the end of 2016, there was still lack of consensus on the legal definition of terrorism at the United Nations (UN) level. The key organs of the UN, the Security Council (UNSC) and the General Assembly (UNGA), are yet to agree on a legal definition of terrorism. This disconnect is attributed partly to the heterogeneous nature of terrorist activities and ideological differences among member states. At the UN level, acts of terrorism are mainly tackled from the angle of threats to international peace and security. In contrast, at the state level, acts of terrorism are largely defined as crimes and hence dealt with from the criminal justice paradigm. This article argues that the lack of a concrete legal definition of terrorism at the UN level undermines the holistic use of the criminal justice paradigm to counter-terrorism at the state level. To effectively counter-terrorism the UNSC and the UNGA have to agree on a legal definition of terrorism in their resolutions. This will streamline efforts to combat terrorism at the state level and consolidate counter-terrorism measures at the international level. The draft comprehensive Convention on Measures to Eliminate Terrorism (the Draft Convention) should be tailored to fill gaps and provide for a progressive legal definition of acts of terrorism
Foreword
Get PDFPunches of the invisible fist: Intra- and inter-personal relations in the neo-liberalised African university. There can be no independent thought–indeed no independence–without institutions to sustain independent research and produce relevant knowledge. The key institution is the research universit
Casting Fresh Light on an Age-Old Discipline: Migai Akech’s Creative Study of Administrative Law
Get PDFDiscreet Discretion and Moderate Moderation in Judicial Sentencing: A commentary on Kenya’s Sentencing Policy Guidelines, 2016
Get PDFCriminal sentencing is an integral part in any judicial system for the fair administration of justice. The process of sentencing and the standards applied by judicial officers has, however, been a notoriously difficult component in many criminal law systems. In Kenya, sentencing has been blamed as one of the sources of ‘popular dissatisfaction with the administration of justice’ to borrow from Roscoe Pound. This was the impetus for the Kenyan Judiciary to introduce the Sentencing Policy Guidelines, 2016 (SPGs). This paper is a general commentary, critique, and analysis of the SPGs. The author argues that SPGs come at an instructive epoch in Kenya’s economic, socio-political, and cultural development. This contribution is not a polemic on the Kenyan SPGs. The commentary makes sideglances to various jurisdictions that have had a longer experience with sentencing guidelines. The article forecasts that Kenyan SPGs will, despite its few shortcomings, nevertheless, prove to be important for all judicial officers involved in Kenya’s criminal justice system