Strathmore Law Review
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The Contested Empowerment of Kenya’s Judiciary, 2010-2015: A Historical Institutional Analysis by James Thuo Gathii
Get PDFThere has been an increasing number of written works deconstructing various transformative values underpinned by the Constitution of Kenya. One of these transformative values is the concept of constitutional supremacy which, arguably, has not received nuanced theoretical attention in Kenya’s constitutional law scholarship. Gathii theorises the unexplored, yet controversial question of judicial empowerment and its centrality in anchoring constitutional supremacy in the post-2010 politico-constitutional order. He provides a well-researched exploratory analysis of the functional, institutional and normative fledgling nature of the Judiciary of Kenya. He does this through an analytical filter that investigates the prominent role that judicial expansion has played in promoting constitutional supremacy and the principle of legality
A Game of Code: Challenges of Cyberspace as a Domain of Warfare
Get PDFThe military capabilities that the world witnesses in modern day armed conflicts are a sort of science fiction brought to life. Most of the techniques in cyber warfare were never thought possible, let alone anticipated in times past especially during the framing of key International Humanitarian Law (IHL) instruments. This paper analyses the challenges that cyber warfare poses to state responsibility. The analysis also discusses how the anonymity of parties in cyber warfare presents challenges to the application of existing law. The rationale for this study is the fact that cyberspace as a domain of warfare is still in its early days despite the many ambiguities and puzzles it has sparked in various circles of discussion. The study relies on literature reviews and case studies to make its salient points. Ultimately, the study argues that cyber warfare is subject to IHL; however, it breeds new possibilities that may require greater adherence to consistent legal review of weapons and greater willingness of the international community to apply IHL to this domain of warfare
Eminent Domain: The Perpetual Rights of the Indigenous People of Kenya to Land Ownership
Get PDFThe power of eminent domain, a facet of the powers vested in the Government of Kenya, is ideally a tool for conservation of the environment and the advancement of the public good. Unfortunately, this power has been abused over the years, and become a gateway for unscrupulous regimes to appropriate land. Consequently, the core right of indigenous people—the right to ownership of property, specifically land—has been violated and usurped time and time again to the end of eminent domain. Due to the unique nature of indigenous people and their identity, the power of eminent domain should be suspended from the prerogative of the Government for the sake of their protection and continuity
Application of Therapeutic Jurisprudence: A Different Approach to Punishment in Kenya
Get PDFA critical role of the State is the regulation of crime by maintaining law and order and, at the same time, punishing crime. This paper seeks to address the retrogressive way crime is punished in Kenya. The author proposes that this can be rectified through the application of the doctrines of therapeutic jurisprudence (TJ), a theory first propounded by David Wexler when he tried to create a solution to the treatment of mental health victims in criminal courts. This paper takes his theories and applies them to the Kenyan context. In addressing these issues, this paper shall first look at the existing theories behind punishment, with focus on incarceration as the primary form of punishment, and highlight their flaws. It shall then look at TJ and explain how it can be infused into the Kenyan legal system. In doing so, the paper argues, the effectiveness of punishment can be greatly increased
Innovation, Regulation and the Digital Environment: The South African Case
Get PDFIt is self-evident that the law, which is often considered to be slow moving at best, has a tendency to lag behind innovation and changes within the system it governs. Despite what appears to be an intrinsic resistance to change, there is much to be said about the legal certainty, the consequential continuity as well as the stability such a system affords those who find themselves within it. In contrast, technology within the digital environment develops and changes at a rapid pace, almost as fast as it proliferates. The innovativeness and productiveness of such an industry often leaves little time for reflection upon salient applicable legal principles involved. Unfortunately, when steps are finally made to modernise the law and to regulate the proliferation of information in such an environment, one seldom finds that the law is implemented smoothly and without conflict or contradiction. This essay attempts to highlight some of these problems and to address a number of the fundamental issues raised by the new policies, amendments and legislation that presume to deal with the digital environment in South Africa
Budget Deficits in Kenya: The Impact of Foreign aid on Sovereignty
Get PDFA national budget needs funding with the sources being either domestic or foreign. Foreign sources of funding seem to dominate the Kenyan context. This paper argues that a country with a national budget dependent on foreign aid can be held hostage by the holders of the purse strings. Further, that this dependency has a negative impact on Kenya’s economic sovereignty. It is this impact that is of relevance to this paper. In this spirit the paper critically analyses Kenya’s borrowing trend with a special focus on foreign aid, defines by use of a working definition the importance of economic sovereignty, explores how this borrowing trend affects Kenya’s economic sovereignty and offers solutions on regaining of Kenya’s economic sovereignty
Torture by the Nigerian Police Force: International Obligations, National Responses and the Way Forward
Get PDFPolice brutality has become rife in Nigeria and is regarded by some as a normal part of police operations. This is despite the fact that the Nigerian Constitution provides for the guarantee of the right to dignity and the protection against torture and inhuman or degrading treatment. Nigeria is also party to some international treaties such as the International Covenant on Civil and Political Rights, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the African Charter on Human and Peoples’ Rights which expressly prohibit torture and other cruel, inhuman and degrading treatment. This raises the question whether police brutality in Nigeria amounts to torture and / or other cruel, inhuman or degrading treatment and whether the existing legal framework sufficiently prevents and punishes the perpetrators of these acts
Taxing Income from Illegal Activity: The Kenyan Perspective
Get PDFIncreasingly, states are being called upon to act on illicit financial flows with respect to taxation. In a recent decision, the Court of Appeal of Kenya held that illegal income is taxable under the Kenyan law. There are various arguments for and against taxation of illegal income. As well as arising issues such as deductibility of expenses incurred in the process of income generation, how it relates with the right against self-incrimination and the role of tax law in reinforcing the criminal justice system. This essay is an analysis on whether illegal income in Kenya should be subjected to taxation. The contribution surmises that while taxation of such income may reap benefits, caution must be exercised in order to protect the right against self incrimination
A Call to Strengthen the Law on Insanity in Kenya
Get PDFThe legal presumption of sanity is unfortunately sometimes disproved. Indeed, there are ailments that rob some members of society the ability to be responsible moral agents. When they err, confusion arises as to how to treat the situation. The defence of insanity is the law’s response to this peculiarity. This paper, through a study of the defence, argues that the current position in Kenya needs to be reviewed and reformed, with emphasis on the need for psychiatric expertise in the process
Improving Access to Justice in Kenya through Horizontal Application of the Bill of Rights and Judicial Review
Get PDFArticle 20 of the Constitution of Kenya 2010 states that the Bill of Rights binds all state organs and all persons. However, the extent to which natural persons and private legal persons can be held liable for human rights violations has become an issue. The courts have differed and provided mixed directions as to liability for human rights violations by private persons. Under the previous constitutional era, only decisions of public entities could be reviewed through judicial review. This article is an attempt to illustrate, with the aid of case law, the increased possibility for access to justice by the litigant in constitutional rights matters post-2010. We move from the previous era where human rights could not generally be sought against private persons to one where there is an attitude of acceptance, albeit a very cautious one, where rights can now be sought against any private persons. Also, there is hope for justice and a better society in general, if private bodies’ decisions can also be judicially reviewed. Private entities wield immense power over individuals and it is crucial to lift the veil of privacy and go to the root of the matter by evaluating their decision-making processes