Strathmore Law Review
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The Efficiency of Copyright Law in the Digital Space in Kenya: A Case for the Making Available Right in Peer-to-Peer File Sharing
No full textThe emergence and use of new technologies such as Peer-to-Peer (P2P) file sharing has brought with it numerous controversies particularly for intellectual property. P2P technologies function by granting its users access to files stored on another P2P user’s hard drive thus enabling them to download on-demand from users who have granted them such access. This aspect of the P2P networks (making files available for download), has been argued to be a violation of the exclusive rights granted by copyright. Consequently, a new right of making available was introduced via the World Intellectual Property Organisation (WIPO) Copyright Treaty (WCT) to supplement the existing copyright regime thus making it more adaptable to the digital age. The lack of ratification of the WCT and the lack of recognition of this right in Kenya, points to an inefficiency of Kenyan copyright laws to prevent P2P sharing of protected works in Kenya
The Legitimacy of Indigenous Intellectual Property Rights’ claims
Get PDFThe notions of indigenous peoples, indigenous knowledge, and heritage and culture have acquired wide usage in international debates on sustainable development and intellectual property protection since the turn of the 20th century. This paper, through an examination of the concept of intellectual property and its intersection with culture and heritage, elucidates the nature and scope of indigenous intellectual property rights as represented by traditional knowledge, traditional cultural expressions and genetic resources. This paper, through a review of the interface between indigenous knowledge systems and the intellectual property law regime, illustrates the limitations of conventional intellectual property rights systems i.e.: copyright, patent, trade secrets and trademark in providing adequate recognition and protection for indigenous intellectual property rights. It also posits that the establishment of a sui generis system of protection offers a plausible solution to the inadequacy of the existing regimes of protection. This paper ultimately seeks to illustrate indigenous people’s legitimate rights to control, access and utilize in any way, including restricting others’ access to, knowledge or information that derives from their unique cultural histories, expressions, practices and contexts, towards the creation of a better society
Implementation Remains the Achilles Heel of the African Union: A Study of the African Peer-Review Mechanism (APRM)
Get PDFThe potential power of Africa is undisputed. The continent is home to a large, young population and is a potential economic powerhouse in the world. In order to realise its full potential, the African Union (AU) must guide the continent. The AU, has however, repeatedly faltered in this regard. The implementation mechanisms of the AU seem to be its Achilles’ heel. The AU suffers no shortage of well-formulated policies; instead it suffers from a chronic inability to follow up on these policies. This paper maps the formation of the AU, the promise it held and the factors that limit the ability of the AU to implement its programs and policies. The paper then briefly examines the African Peer Review Mechanism (APRM) looking at the problems of implementation it has faced and how these may be remedied
The Justiciability of the Right to Development in Ghana: Mirage or Possibility?
Get PDFAn analysis of the debate on the right to development (RTD) suggests that the right is pursued as a solution to solve the problems of poverty and underdevelopment. Thus, this study seeks to determine if at the national level in Ghana, the right to development is a right which is opposable by right-holders against the duty bearers. The Study adopted the Black Letter Law approach in analysing the legal effect of relevant law. This study shows that the African Charter is the only multinational treaty that makes RTD legally enforceable. It also shows that Ghana, which is dualist, has not ratified the African Charter. It is however argued that the Ghanaian courts may enforce RTD either as international law or as a human right implicitly guaranteed under the 1992 Constitution of Ghana. This conclusion supports the notion that development is a human rights concern. It further illustrates that the national courts of African countries are uniquely equipped to guarantee the protection of human rights and the development of the African people
Occupational Safety and Health of Coal Mine Workers in Kenya: Filling the Lacuna in the Law
No full textMining is essential in the economic development of any country endowed with mineral resources. In Kenya, for instance, one block of coal in the Mui Basin has enough coal to bring in KES. 3.4 trillion into the economy. However, disasters such as the Monongah disaster in a coal mine in the United States have resulted in the loss of lives of numerous workers. It is therefore important to ensure the enactment of legislation safeguarding these workers. This article seeks to assess the extent to which the Occupation Safety and Health Act safeguards these concerns in Kenya. It also undertakes a brief comparative study of the best practices employed in Australia and South Africa in safeguarding the safety and health of workers in coal mines. Finally, the article makes recommendations on how Kenya can follow suit and adopt various aspects of the legislations from these jurisdictions
Analysing the Future of International Criminal Justice in Africa: A Focus on the ICC
Get PDFThe International Criminal Court has generally a bad reputation in the African continent as a whole with hostile assertions by the African Union, that the court is nothing but a political tool for the powerful. The Court, plagued with numerous difficulties, has come under pressure to perform, with some doubting its viability. Created by the Rome Statute, and the parties therein governed by general treaty law, enforcement mechanisms of the court have been unsatisfactory at best and this has led to questions being asked as to its survival. There exists a pool of divergent views, in regard to the African Union and the International Criminal Court, in many of the crucial areas of international criminal justice. This paper seeks to find out just how true is the claim that the ICC is ‘dead’ is, and the implications of this in the future of the continent as regards international criminal justice. How important is it for us to preserve international criminal justice? Just how much of a role do states play in this revered area of law? Is its legal viability coming to an unfortunate premature end? What does this mean, then, for the victims of mass atrocities? This paper seeks to show an interplay of the role of states and politics in international criminal justice, and determine then, whether there exists any bright future for this area of law in Africa
Terrorism as a form of Imperialism: A Case for the Rule of Law
Get PDFThe war on terror is indeed justified. Terror attacks have resulted in the deaths of many innocent people around the world. Every nation in fact has a duty to protect her citizens from terror attacks and put up measures to prevent and punish terrorists. However, the government also has a duty to uphold the rule of law at all times despite the gravity of the attacks. This paper disputes arguments that terrorism is so novel and so grave that the rule of law can be sacrificed in order to deal with it. This position fails since terrorism is not a novel challenge and further because terrorism manifests itself as a form of imperialism, which is a challenge that has several times been dealt with in world history. Terrorism does not change the normal rules of criminal procedure and thus the rule of law should not be suspended in the name of counter-terrorism
A Perspective on the Doctrine of the Separation of Powers Based on the Response to Court Orders in Kenya
Get PDFThe Constitution of Kenya provides that the sovereign power of the people shall be vested in the executive, the legislature and the judiciary, reflecting the democratic ideal that if power is concentrated in the hands of a few, it is prone to misuse. This provision aims to safeguard against arbitrary and capricious governance and the abuse of power. In the new constitutional order, there has been instances of tensions between the judiciary and the other arms of government. Unfortunate incidents of members of the Legislature referring to court orders as stupid and idiotic with blatant disregard for court orders have been witnessed. In a government whose legitimacy is vindicated by a court, it is ironical to observe a selective attitude towards respecting subsequent court orders. This paper aims to consider the disregard of court orders against the backdrop of the separation of powers and other relevant principles of constitutionalism
In Duplum Rule in Kenya: A Critical Analysis of the Unaddressed Aspects of Section 44A of the Banking Act
No full textAmendment No. 9 of 2006 of the Kenya Banking Act introduced the in duplum rule into Kenyan legislation. The rule provides that with respect to non-performing loans, only the principal owing when the loan becomes non-performing; contractual interest not exceeding the principal owing when the loan becomes non-performing; and expenses incurred in the recovery of any amounts owed by the debtor may be recovered. This statutory rule has its roots in South African common law. Kenyan jurisprudence has demonstrated a divergence from interpretations of the rule as per other jurisdictions where the rule has a long standing history such as South Africa. This is indicative of a misnomer which upon further interrogation reveals that Section 44A of the Banking Act is merely a semblance of the in duplum rule and not the in duplum rule stricto senso. The aim of this paper is to scrutinise the rule while making reference to South Africa, without carrying out a full comparative analysis, in a bid to address the issue of whether our enactment of the in duplum rule will effectively serve the purpose for which it was enacted; the protection of debtors
An Analysis of the Exclusion of Child Soldiers Seeking Asylum under the 1951 Refugee Convention : from the Principle of the Best Interests of the Child Perspective
No full textArticle 1F (a) of the Convention Relating to the Status of the Refugees has been applied by courts of law to exclude child soldiers seeking asylum from refugee status where it is established that there are serious reasons to consider that they committed the prohibited crimes. Its current application has fallen short of the best interests principle of the Convention on the Rights of the Child. The author posits that the lack of a universally accepted minimum age of criminal responsibility has contributed to the problem. Furthermore, she contends that the legal threshold set out in Article 1F (a) has presented a challenge in applying the exclusion clause because of diverse interpretations