Strathmore Law Review
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Installing a More Coercive Senate for Enhanced Fiscal Capacity within the Counties of Kenya
Get PDFThe clamour to divest the Kenyan parliament of its senate has been championed by a handful of critics who describe this parliamentary house as weak and a burden to taxpayer money. The root of such conclusions could be that the senate has legislative power that is less clear than that of the national assembly. With clearer and enhanced authority, the senate will be able to carry out its function of representing county interests at the national level effectively, more so with regard to the vertical and horizontal allocation of revenue. This paper seeks to make an argument in favour of the senate by illustrating its significant role as the custodian of devolution in Kenya and more specifically in the building of county fiscal capacity
Public Pressure, Temptation of Power and Unconstitutional Actions in the War Against Terrorism in Kenya: Suggesting a Link
Get PDFThe reaction of the government in Kenya, like many other governments around the world, to terrorist attacks has generally been to strengthen existing laws and enact novel laws, especially those that aid the state’s intelligence-gathering capabilities, along with those that are punitive. In some cases, even in Kenya, States have taken, or have attempted to take, extra-Constitutional and unconstitutional actions. This is the approach that this paper characterises as arising from ‘temptation of power’, and in that regard, this interdisciplinary paper is—through an analysis of scholarship in law, sociology and information/ communication—an attempt to investigate the origin, results and wisdom of such an approach in the war against terror, its effect on the rule of law and minority rights in society; and propose why and how it can be avoided
Walking the Tight Rope: Balancing the Property Rights of Individuals with the Right to Housing of Informal Settlers
No full textThe Constitution of Kenya, 2010 provides for the right to property in Article 40. Further, in Article 43 (1)(b), it provides for the right to accessible and adequate housing. The purpose of this article is to show the conflict that arises between the right to property for owners of land and the right to housing of the informal settlers living on these privately owned lands. The main objective is to investigate the concept of illegal forced evictions and the legal framework that surrounds the practices that render such evictions against the principle of human dignity and the right to accessible and adequate housing in the context of informal settlements. The 2010 Constitution states that every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom. This renders important the concern that arises when persons informally settle onto land that they have no legal title to; what is the balance to be maintained between property rights and housing rights as provided for in the Bill of Rights
Fragmentation in a Bid to Defragment: Decentralisation as a Solution to the Challenge of Inclusion in the Kenyan Context
Get PDFFragmentation is a practical tool suggested in this paper to bring about societal inclusion. Indeed, this is not a novel idea. Kenya has joined the league of practitioners of decentralisation, a system of governance that involves fragmentation. One of the objectives is to achieve national unity. The evil observed today is that decentralisation has brought about broadened separation. The aim of this paper is to highlight how decentralisation as a practical mechanism ought to unite. This is a possible solution to the challenge of inclusion. The end sought is a better society where unity, peace and justice abound. The paper will tackle three spheres of inclusion: social, political and economic which are dealt with separately but in essence they are interlinked with each other. In each of these areas, the paper will illustrate how fragmentation has achieved inclusion
The Rejected Stone May Be the Cornerstone : A Case for the Retention of Traditional Justice Systems as the Best Fora for Community Land Disputes in Kenya
Get PDFThe resolution of community land disputes is not catered for adequately in Kenyan policy, law and practice. The Traditional Justice Systems (hereinafter TJS) initially used by communities were phased out with the introduction of laws based on western models of ownership. They were and are still viewed as retrogressive and backward. However, the formal systems introduced do not afford access to justice for all due to the complex procedures and high costs. This is the case even while TJS remain the most appropriate forum for resolving community land disputes. Their informal and community inclusive nature as well as resolution of disputes in the pursuit of restorative justice provide the best forum for resolution of community land disputes. This is owing to the fact that community land ownership is characterized by a web of interests and relationships where land rights are held by different individuals and groups with diverse interests. These relationships, therefore, need to be preserved for the communities to live harmoniously. TJS practices in Ghana and South Sudan are briefly examined in seeking to establish these aspects
Application of African Customary Law: Tracing its Degradation and Analysing the Challenges it Confronts
Get PDFHistorically, African customary law has occupied the lower rungs of the legal ladder, often being set aside for more formal laws. This is primarily due to the introduction of western and religious legal systems through the exploration of western nations into Africa, missionary activity and, subsequently, colonisation. However, African countries – including Kenya – are making an effort to give due recognition to customary law. This paper discusses the steady degradation of customary law from the colonial period to the promulgation of the Constitution of Kenya 2010 where there are attempts to resuscitate its application, it also discusses the challenges that the courts may face in this application of customary law today and possible solutions to these challenges