Strathmore Law Review
Not a member yet
94 research outputs found
Sort by
Equitably Assessing the Weight of Non-Monetary Contributions in Kenya
Get PDFArticle 45 of the Constitution of Kenya establishes the family as the natural and fundamental unit of the society. Marriage is one of the main ways of creating a family, and the spouses in such a marriage are deemed to have equal rights. Upon the dissolution of the marital union, the spouses are faced with the challenge of dividing the property they acquired during their union. In this division, courts have taken opposing stances. One faction advocates for the equal division of property based on the fact that the spouses have equal rights. Another faction claims that marital property should be distributed on the basis of contribution since equality of rights does not necessarily translate to equal division of property. Consequently, the value of monetary and non-monetary contributions becomes increasingly important when dividing matrimonial property. Unfortunately, non-monetary contributions have historically been left out up until the enactment of the Matrimonial Property Act of 2014. Even then, in the eyes of judicial officers, non-monetary contribution appears to be a lesser consideration given the ease of proving monetary contributions. Using a doctrinal analysis, this paper argues that non-monetary contribution is not accorded the same consideration as monetary contributions, which goes against the constitutional standard of equity. It is suggested that an application of a mathematical formula can remedy this inequity by placing each of the contributions on the same footing when dividing matrimonial property
Critiquing the Supreme Court of Kenya’s Jurisdictional Decisions to Listen to Matters of General Public Importance
Get PDFThe Supreme Court of Kenya, as per Article 163 (4) (b), has the appellate jurisdiction to listen to appeals from the Court of Appeal that have been certified to be matters of general public importance. In Hermanus Phillipus Steyn v Giovanni Gnnechi-Ruscone, the Supreme Court put forth the Hermanus test that aimed at demystifying the concept of matters of general public importance. The prevailing understanding at the Supreme Court seems to take public interest to be an idea that is homogenous, applying to the country as a whole, ignoring the vast diversity in society. Hence, through the Hermanus test, the Supreme Court narrowly interprets its appellate jurisdiction to listen to matters of general public importance, going against transformative constitutionalism. This article aims to prove, through Court decisions, that the current interpretation of the ‘public interest’ in the Hermanus test goes against the purposive interpretation expected by the Constitution and access to justice. The article proposes reformulations to the Hermanus test that would meet the transformative aspect of the Constitution and fulfil the visions espoused by the constitution’s drafters.
 
Evaluating the Legitimacy of the Investor-State Dispute Settlement Mechanism for the AfCFTA
Get PDFPhase two of the negotiations on the African Continental Free Trade Area (AfCFTA) has begun. This phase includes negotiating the protocol on investment. The International Investment Regime (IIR) allows foreign investors to institute proceedings against states through Investor State Dispute Settlement (ISDS), which is criticised as undergoing a ‘legitimacy crisis’. This paper assesses the legitimacy of ISDS to evaluate whether it is a suitable mode of adjudicating international investment disputes in the AfCFTA. Accordingly, it sets out the criteria to be used in assessing legitimacy and further uses these criteria to appraise the legitimacy of ISDS, ultimately demonstrating that the present ISDS framework lacks sufficient legitimacy to be adopted as the mode of adjudicating international investment disputes in the AfCFTA. This is because of the perception that ISDS is unfair and biased due to its imperial and neo-colonial background and the excessive corporate power it grants to foreign investors. ISDS is also lacking in transparency and democratic values and conflicts with the AfCFTA’s objective of sustainable and inclusive socio-economic development. The paper advocates against the inclusion of ISDS in the AfCFTA protocol on investment and asserts that the challenge is in finding a mode of adjudication that is more equitable and inclusive than ISDS
Indirect Discrimination: Huduma Namba (Digital Identification) and the Plight of the Nubian Community in Kenya
Get PDFYears after Kenya’s independence, the Nubians in Kenya are yet to enjoy the status of being fully-fledged citizens in their country. This is due to a variety of factors including the government’s refusal to formally acknowledge them as citizens, and its reluctance to streamline the current vetting process despite the overwhelming proof of its shortcomings. The discriminatory approach in the issuance of Kenyan identity cards (IDs) through the vetting process on grounds of religion and ethnicity not only entrenches the social, political, and economic exclusion of Nubians in Kenya but is also prohibited under Article 27(4) of the Constitution as indirect discrimination. Without taking adequate steps to change the status quo, the Kenyan government has instead launched a new digital identification system whose enrolment requires citizens’ IDs. Despite the full roll-out being halted by the court on grounds of data protection concerns, the switch to the Huduma Namba system is nonetheless set to disproportionately affect the ability of Nubians to participate as Kenyan citizens and contribute to their ‘otherness’. Consequently, this paper argues that the mandatory operationalisation of the Huduma Namba system in Kenya will constitute indirect discrimination against the Nubian community. It conducts this assessment by discussing the moral wrongfulness of indirect discrimination and laying out the architecture of indirect discrimination law in Kenya
Right Behind Bars: Examining the Appropriateness of Kenya’s Prison Labour Wages and Earnings Scheme
Get PDFSentenced inmates in Kenya are obligated to provide labour while imprisoned. This is to reduce idleness, for punishment, to enhance prisons’ cost-efficiency, and for rehabilitation. Some scholars posit that prisoners should be paid, others state that they should not, and some others recognise that they should be paid but vary between a high or low rate of payment. In Kenya, prisoners are paid for their labour at rates espoused in Section 5 of the Earnings Scheme, Kenya Prisons Service Standing Orders, 1979. The rates range between 10 and 20 cents a day. From this pay, they are to spend on necessities while in prison, send some money to their families and save some for use after their release. However, the rates are very low and based on the purposes the wages are to serve, the meagre pay is grossly incommensurate. This paper uses the concept of prison industrial complex and the human rights theory to make a case for higher pay for prison labourers. Lastly, it suggests a revision of the earnings scheme after drawing lessons from India
Pacifying the Crises of (Un)Constitutional Amendments: The Case of Zimbabwe’s Amendment (No.1) and (No.2) Acts
Get PDFZimbabwe enacted a new constitution in 2013 amid high hopes for a turn towards a new era of democratisation, constitutionalism, and adherence to the rule of law. However, subsequent to 2013, Zimbabwe entered an era of regression on the democratic values espoused by the new constitution. The apogee of the regression is the amendments of the Constitution, neutralising some of its most progressive elements. This paper analyses two recent constitutional amendments: amendments no. 1 and no.2, in the Zimbabwean context pertaining to judicial appointments and terms of office. It also evaluates the potential of judicial review of substantive validity of constitutional amendments through the lens of the doctrine of ‘unconstitutional constitutional amendments’. This is in defence of core constitutional values such as equal protection of the law, rule of law, separation of powers, and democratic participation. The central argument of this paper is that the amendments, which contravene the values espoused by the Constitution, are substantively unconstitutional because they precipitate a multi-pronged crisis of constitutionalism. These crises are embodied in the indirect control of the judiciary by the executive, and in ‘rule by law’ replacing ‘rule of law’. This article proposes that these crises can be remedied by exploring the doctrine of unconstitutional constitutional amendments
Clash of Titans: Streamlining the Complementary Roles of the DPP and the AG in Kenya’s Extradition Procedure
Get PDFExtradition encompasses both the administrative bodies and the judicial bodies. The Extradition (Contiguous and Foreign Countries) Act requires that an authority to proceed is issued once the Attorney General receives the extradition request. This is different from what is contained under the 2010 Constitution. Currently, the 2010 Constitution mandates the Director of Public Prosecutions to institute criminal proceedings as opposed to the Repealed Constitution which conferred it on the Attorney General. Hence, courts have interpreted the authority to proceed in extradition to fall within different ambits. For example, in the 2015 case of Samuel Gichuru v Attorney General, the High Court held that this authority fell under the Office of the Director of Public Prosecutions. This was overturned in the 2018 Court of Appeal case, Chrysanthus Okemo v Attorney General, where the authority was to be granted by the Attorney General. However, the Supreme Court in Director of Public Prosecutions v Chrysanthus Okemo (2021) upheld the High Court’s decision. Therefore, this paper sets out to determine and streamline the nature of extradition in Kenya, given that there exist overlapping mandates and lacunae that the law needs to address for a uniform practice of extradition in Kenya