Strathmore Law Review
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The Threat of a Rising Sea Level: Saving Statehood through the Adoption of Uti Possidetis Juris
Get PDFClimate change has several adverse effects. One of these is ‘sea level rise’, which threatens two key requirements of statehood as stipulated by the declaratory theory of statehood and subsequently listed in the Montevideo Convention on the Rights and Duties of States. These are a defined territory and a permanent population. The focus of this paper is the implications of the rising sea level on the maritime boundaries, land territory and populations residing in small lowlying island nations. The central argument is that a rising sea level impugns the statehood of small low-lying island nations whose maritime boundaries are determined by ambulatory baselines. It further argues that a consistent rise in sea level may submerge small island nations, leading to their extinction. It concludes by proposing the principle of uti possidetis juris as a panacea to the retention of statehood of small island nations threatened by sea level rise
An Inquiry into the Limits of Judicial Intervention in the Impeachment Process of Governors in Kenya
Get PDFArticle 181(2) of the 2010 Constitution of Kenya instructs Parliament to enact a law highlighting the process of impeachment of a county governor. This has been realised through the County Government Act, Section 33. Section 33 recognises the County Assembly and the Senate as the bodies responsible for this process. However, the County Government Act fails to address at what point the courts can intervene in the impeachment process of governors. This is often a problematic issue as the doctrine of separation of powers requires each arm of government to perform their functions independently. Nonetheless, Kenyan courts have the duty to protect aggrieved parties whenever their rights are threatened. However, the point at which they can intervene is not stated under any law and this creates confusion between the role of courts of law in the impeachment process, on the one hand, and that of the County Assembly and the Senate, on the other. It is not clear which role should be discharged first. This paper, therefore, seeks to address this confusion through a critique of the Wambora case, a case that was appealed up to the Supreme Court. The paper also suggests a complimentary system whereby the Senate, County Assembly and the courts can work in harmony, and, do away with the confusion
Through the Economic Cost of Discrimination: The Way forward for Women in the Somali Customary Justice System
Get PDFThe Constitution of Kenya guarantees the promotion of customary justice systems. However, in many cases, the dictates of customary law are often in contravention with the progressive attitude embodied in the Constitution. The Constitution guarantees the right to equal treatment of men and women in social, political and cultural spheres. However, women in the Somali customary justice system do not enjoy this right. Women in the Somali customary justice system have no locus standi before any dispute resolution process and they cannot oversee the resolution of disputes as this position is reserved for the elders, who can only be men. Through Gary Becker’s theory on the economics of discrimination, this paper establishes, through an economic lens, that there is a prevailing cost to the Somali community for failing to include women in the processes of the customary justice system. It suggests a way forward of promoting inclusivity in line with the characteristics of customary law
The Right to be Wrong: Examining the (Im) possibilities of Regulating Fake News while Preserving the Freedom of Expression in Kenya
Get PDFWith the proliferation of peer-to-peer networks as a source of information, concerns on the accuracy of information shared have been raised, necessitating attempts by governments to regulate fake news. Kenya’s Computer Misuse and Cybercrimes Act, for instance, criminalises the intentional dissemination of false or misleading data. However, such regulation has resulted in a different set of concerns, particularly its potential to bring about undue limitation on the freedom of expression. In appraising the approach taken in Kenya of imposing liability on perpetrators, and that taken in some jurisdictions of imposing intermediary liability, the article posits that similar difficulties are faced in regulating fake news – the freedom of expression could be curtailed. This is fuelled by ambiguity in the definition of ‘fake news’. Consequently, this article seeks to find out if indeed, it is possible to regulate fake news while preserving the freedom of expression in Kenya. Further, the article delves into some of the effects the proliferation of fake news has had on the democratic process in Kenya, thereby requiring regulation. In doing so, it tackles fake news from two general conceptions: fake news as calculated disinformation campaigns by individuals for certain purposes, and fake news as an overarching culture of misinformation that enables the spread of false information. Regarding the former, it finds that legislative measures may prove sufficient. However, the latter requires a combination of non-legislative measures such as collaborative measure, awareness initiatives and fact-checking
Reconceptualising the Right to a Clean and Healthy Environment in Kenya: The Need to Move from an Anthropocentric View to a Bicentric View
Get PDFStates around the world are progressively protecting environmental rights. The Constitution of Kenya 2010 provides for environmental rights under Articles 42, 69 and 70. However, this study argues that there is need to reconceptualise the right to a clean and healthy environment as established under Article 42, as the right is geared towards human utility rather than intrinsic environmental protection. Thus, the right is shrouded with anthropocentric concerns which may be construed as insufficient in the protection of natural resources, ecosystems and other non-human species for their ecological and intrinsic value. Accordingly, the study examines the right to a clean and healthy environment as envisaged in the Constitution of Kenya 2010 and, from that context, assesses the efficacy of anthropocentric environmental rights in environmental conservation highlighting the potential challenges faced in their implementation. As a way forward, the study recommends bicentric environmental rights as an alternative to anthropocentric environmental rights. The study realises its objectives through the use of case law and literature review
Taxing a Digital Economy: Exploring Intangible Assets to Broaden Revenue Base in Kenya
Get PDFThe world economy has shifted from brick and mortar industries to a knowledge and service economy. In the age of digital evolution, intangible assets have become the new drivers of corporate profit and restructured business models of leading firms. Creators of these assets look forward to monetising and making gains from them. Equally, governments expect to extract revenues by way of taxation. As cross-border trade broadens with the rise of globalisation, intangible assets have increasingly become an area of concern in relation to tax avoidance schemes especially by global firms. In Kenya, appreciation of intangible assets has been rising. This study surveys the prospects of expanding Kenya’s revenue base by tapping intangible assets. The digital economy in Kenya is generally inadequately regulated. This leaves tax loopholes which this study explores in order to identify where revenue can be imposed. In order to make recommendations, the study equally focuses on accounting, valuation, and transfer pricing of intangible assets for tax purposes. To this extent, numerous reforms are necessary to ensure that the taxation of intangibles is optimal and does not distort the rise of a digital economy
Structural Interdicts for Socio-economic Rights: What the Kenyan Jurisprudence Has Missed
Get PDFThe enforcement of socio-economic rights is unique as it necessitates positive action in policy-making and bears budgetary implications. Consequently, to prevent such enforcement from exceeding the scope established by the doctrine of ‘separation of powers’, because policy-making and budgetary allocation are under the executive and legislature respectively, the Kenyan Court of Appeal was hesitant to apply structural interdicts in the case of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others. This decision has outlawed structural interdicts from the Kenyan jurisprudential landscape and has failed to give a viable alternative judicial approach that should guide subsequent courts in enforcing socio-economic rights. This study looks into the origin and models of structural interdicts so as to analyse and critique this Court of Appeal’s decision by showing how the Court could have applied structural interdicts in the enforcement of socio-economic rights without impinging on the doctrine of separation of powers. This will be achieved through the use of literature review
Cognition and Volition Impairment in Criminal Conduct: A Look into the Application of the M’Naghten Test in Kenya
Get PDFThe M’Naghten test of insanity is applied in many common law countries including Kenya. It provides that to be legally insane, one must prove that the act or omission came from a disease of the mind that restricted someone from knowing what they are doing, and whether what they are doing is right or wrong in law. These requirements focus on the cognitive aspect of committing a crime. However, there exist cases where the accused commits an action based on an irresistible impulse that makes them unable to refrain from doing a certain action. This amounts to volitional impairment. Cognition and volition are important aspects to consider when evaluating legal insanity as a defence. This study seeks to explain the need for cognition and volition to be considered in the defence of insanity by describing the requirements of the M’Naghten rules with the objective to show its ignorance of the volitional aspect. Additionally, the study will delve into the need for both cognition and volition by expounding on what they entail and showing their application through the Model Penal Code test. Therein, the study will propose the use of the Model Penal Code test as a substitute for the M’Naghten rules applied in Kenya since it recognises the presence of both cognition and volition when committing a crime
Till Death Do Us Part: The Ailment Affecting the Widow’s Life Interest in Kenyan Intestate Succession
Get PDFSuccession law in Kenya has developed from pre-independence where an array of regimes determined inheritance depending on whom they applied to, to an age where a single legislation was made to resolve this multiplicity; the Law of Succession Act. Since then, a new Constitution has been promulgated and the old one repealed. There are certain areas of the Act that resemble the latter more than the former. One such area is that of intestacy. More specifically, the position taken on the one-sided determination of the life interest of a widow upon remarriage. This study tackles this issue and finds that Sections 35(1) and 36(1) are indeed contrary to the entitlement of rights in Article 45(3) guaranteeing equal rights to parties within a marriage. It further advances the argument that this inconsistency has its possible origins in African Customary law and owes its longevity to a foregone constitutional era. The recommendation offered is an amendment to the Act aimed at equalising the parties to a marriage by ensuring parity in the duration of the life interest. In addressing itself on these issues, a synthesis of literature review, case review, legislative review and a key analysis of constitutional preparatory documents is used