Strathmore Law Journal
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Derivative Action Under the Companies Act 2015: New Jurisprudence or Mere Codification of Common Law Principles?
Get PDFOne of the salient features of Kenya’s Companies Act 2015 is the codification of derivative action (the rule in Foss v Harbottle and its exceptions). While the statutory provision for derivative action is aimed at addressing the challenges that arose from common law derivative action, the statutory derivative action fails to achieve this outcome. At best, it is a restatement of the common law principles flowing from the rule in Foss v Harbottle and its exceptions
The Sexual Minority Rights Conundrum in Africa: Contextualising the Debate Following the Coalition of African Lesbians’ Application for Observer Status Before the African Commission
Get PDFAlthough the African human rights legal system boasts of many treaties, the most relevant in the context of sexual minority rights is the African Charter on Human and Peoples’ Rights (African Charter), which agreement enjoys near unanimous ratification by members of the African Union (AU). As Vincent Nmehielle justly noted, ‘the African Charter is the primary normative instrument of the African human rights system.’ It thus may easily be regarded as the ‘regional bill of rights.’ This paper will deal with this matters, showing the status questionis in Africa
Towards a New Justificatory Theory of Comparative Constitutional Law
Get PDFThis paper tries to explain what comparative constitutional law is and takes the US legal practice as an example. The presence of comparative analysis is considered both in the academic arena and in the case law of the US Supreme Court. The conclusion of this part of the article is that for comparative constitutional law to be valid its role ought to be restricted by several constraints. The article also suggests that the comparative enterprise only makes sense if the universality of human rights is first acknowledged. The paper next delves into such universality and connects it with notions of new classical natural law that are considered essential in order to adequately understand the problem. Finally, it provides an example of the misuse of comparative constitutionalism
The Wretched African Traditionalists in Kenya: The Challenges and Prospects of Customary Law in the New Constitutional Era
Get PDFThe modern African judge will be the first to acknowledge that, in many senses, the problems faced by British judges in colonial Africa have not vanished. Almost one hundred percent of the African judiciary is now African. But even though there is no longer the gross disparity of national origin between a judge and his community, a judge often does not come from the particular locality whose ethnic law he is administering. A part from this ethnic question, there is an enormous educational and cultural gap between a senior judge with a western education and the ordinary families he may deal with. Thus, the judicial system may have moved from a problem of race and ethnicity to one of class
Alternative Dispute Resolution, Access to Justice and Development in Kenya
Get PDFThe Constitution of Kenya, 2010, envisions a prominent role for alternative dispute resolution, including traditional dispute resolution mechanisms. This is in addition to other legislative frameworks which provide for non-formal methods of dispute resolution. A thesis is made that formal forums such as litigation through courts of law have various disadvantages including complexity, high costs, and technical procedures, delays, amongst others, which make a strong case for the usually convenient and available ADR mechanisms. Put to good use, these mechanisms have potential to spur economic development through enhanced access to justice and the rule of law. The authors, indeed, argue that there is a golden thread that weaves across the themes of rule of law, human rights and access to justice and development
Developing an Efficient and Effective Social Security Adjudication Framework in South Africa: The Role and Impact of International Standards
Get PDFSouth Africa is currently developing an overarching policy framework for effi-cient and effective resolution of social security disputes as part of reforms towards the establishment of a comprehensive social security system. In the development of the policy, international and regional guidelines and standards on access to justice were instrumental as they are benchmarks on the scope and content of the right of access to courts for social security claimants and the State’s obligations in this regard. This article outlines some international guidelines and standards relevant to the realisation of access to justice for social security claimants; and their role in recent reform initiatives that have been undertaken to promote access to justice in the South African social security system
The Security Council and the International Criminal Court: When Can the Security Council Defer a Case?
Get PDFThis paper discusses the deferral power of the Security Council under Article 16 of the Rome Statute. It analyses the drafting history, provision and practice of Article 16 with a view to identifying the requirements that a situation should meet before the article may be invoked by the Security Council. The purpose is to provide guidance on the legal terrain within which the Security Council is authorised to act under Article 16, especially in light of its inconsistent invocation of the deferral power. The paper argues: firstly, that, being a creature of the law, the Security Council is governed and qualified by the law; and secondly, that Article 16 has unambiguously provided the parameters within which the Security Council should exercise its deferral power