Strathmore Law Review
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Is Agriculture a National or County Governments’ Policy Function in Kenya? Interrogating Section 4 of the AFA Act together with the Fourth Schedule and Article 191 of the Constitution
Get PDFAs the people of Kenya witnessed the promulgation of the 2010 Constitution, there was so much hope and faith in the atmosphere for a better tomorrow. One of the main reasons for this was the entrenchment of devolution which was expected to lead to better service delivery and promote self-governance. However, almost a decade down the line, the expectations of the people have not been met. The effectiveness of devolution is largely dependent on the nature and extent of powers exercised by the counties and the functions they perform. The Fourth Schedule of the Constitution outlines the functions of the national and county governments. However, some functions such as agriculture seem to overlap. The national government’s function with regards to agriculture is ‘policy’. The same is true for county governments. The national government, through parliament, has enacted a law, the Agriculture and Food Authority Act (AFA Act), which this study finds to have encroached on the functions of county governments. To demonstrate this, the study relies on Article 191 of the Constitution, which is on conflict of laws; on literature review and comparative jurisprudence
The Problematic Jurisprudence on the Law of Defilement of Adolescents in Kenya
Get PDFThe intention of the drafters of the 2006 Sexual Offences Act of Kenya was to curb the growing number of sexual crimes. The application of Section 8 of the Act by courts of law has, encountered some challenges, however, especially where adolescents are involved. Key among them is the identification of a victim where there is mutual defilement by children; the interpretation of Section 8(5) and (6) which provides a defence where the said child acted as an adult; the unjust outcomes of the mandatory minimum sentences in the Act; and the potential hindrance to the right to access reproductive health by adolescents. Therefore, this study seeks to provide solutions in dealing with these challenges. It advances the position that in certain instances, adolescents may consent to sexual intercourse, and so, stiff criminal sanctions may seem unwarranted. This study will rely on multidisciplinary studies such as medicine, in addition to the law, to further this argument. It proposes certain legislative reforms in order to avoid injustices while maintaining the legitimate interests of society to protect minors from sexual molestation
Ignorance of the Law is No Defence: Street Law as a Means to Reconcile this Maxim with the Rule of Law
Get PDFThe age-long maxim, ignorance of the law is no defence, is a widely known presumption of law. This paper explains societal backdrops against which it has, from time to time, been contextualised. The aim is to prove that failure to present the law in a simplified and digestible form harms the rule of law. While the rule of law requires the capacity of the law to guide the layperson, the sheer number and complex nature of laws in modern States have made it virtually impossible for him or her to know the law. However, this paper does not seek to excuse ignorance of the law. Instead, it offers the street law programme as a panacea to reconcile this presumption with the rule of law. Further, with a particular reference to Kenya, it attempts to give a lesson for most African countries, where little or no attention has been paid to this programme
The East African Court of Justice and Human Rights Jurisdiction: Drawing the Line
Get PDFHuman rights in Africa have gradually gained a place of recognition few could have foreseen only a decade ago. With the promotion and protection of human rights entrenched deep in the African Charter on Human and Peoples’ Rights, African states have a duty to uphold this principle in the larger goal of regional economic integration. The East African Court of Justice (EACJ), a regional court, has thus assumed the role of a watchdog in breathing life into these provisions, safeguarding the rule of law and ensuring everyone plays by the rules. It is unfortunate that these watchdogs can then lack the most important tool in steering the ship – jurisdiction. This paper, through a detailed analysis of literature review, tackles the pertinent question of whether the court has jurisdiction to handle human rights cases and arrives at the conclusion that an express mandate is lacking, but there is a somewhat implied mandate. Nonetheless, a clear articulation of the EACJ’s mandate is necessary to enable it to address issues effectively and efficiently
The Problem of Sports Betting in Kenya: Striking a Balance between Private Profit and Public Good
Get PDFThe inception of sports betting in Kenya has brought forth great excitement to prospective bettors and shrewd betting operators which has resulted in an equal amount of controversy and muddle. This note seeks to address the conflict between the private profit that investors and the economy reap, and the public good that the state owes its citizens by virtue of its fiduciary duty over its people. The author scrutinises the current law of sports betting in Kenya to demonstrate that it is not sufficient to speak to the two conflicting issues and that a concession is possible
When Courts do Politics: Public Interest Law and Litigation in East Africa by J Oloka- Onyango
Get PDFAn all-too-simplistic appreciation of the relationship among the three arms of government should be excluded in order to get the gist of Oloka’s writing. He pulls apart the idea that courts simply interpret the law, keeping off from legislative and executive duties. Instead, the author introduces the notion that courts are not insulated from the ‘waves of politics’. In this regard, he invites scrutiny of their powers: of judicial review, to declare a law invalid, to appoint and vet judges, and to interpret the constitution. These defy a purist understanding of the classical separation of powers theory which holds that ‘judges should just judge’ and in this sense avoid upsetting the status quo
Building an African Academic Law Journal: Some Reflections
Get PDFThe Strathmore Law Review (SLR) enters its third volume this year. In this short non-academic essay, the author charts the path that the SLR has taken, discussing the underlying principles behind some of the important decisions made, as well as the lessons drawn from the first two years of publishing. The essay also broaches some of the critical issues in legal-academic writing today. Eventually, its insights aim at playing a role, however small, in helping decisionmakers create and facilitate better quality legal academic publications touching on African issues