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The response of IPOA and other state institutions to deaths in custody and police misconduct in Kenya
Get PDFThis article looks into deaths in police custody and police oversight in Kenya. Death in police custody includes instances where an individual in the custody of police loses their life in one way or another, including through suicide. The article defines death in custody, discusses the right to life, and briefs on the reports made by institutions such as Independent Policing Oversight Authority (IPOA). It also analyses the Kenyan legal framework that governs police conduct and institutions responsible for reporting, investigating and prosecuting cases on death in police custody. It describes the process through which reports can be made to relevant authorities and establishes that IPOA plays a major role in holding police officers accountable. This article also posits that the State in general, IPOA, the Internal Affairs Unit, Office of the Director of Public Prosecutions and police officers have failed in their mandate to report and investigate and satisfactorily prosecute complaints of deaths in custody. It highlights the success and challenges IPOA faces in effecting its mandate. It goes further to give recommendations towards improving the prosecution of death in custody cases
Challenges in Litigating under Kenya’s Protection from Domestic Violence Act 2015
Get PDFThe Protection against Domestic Violence Act (2015) was enacted to specifically cater for the needs of the victims of domestic violence. It addresses all forms of domestic relationships and places the duty to ensure the protection of victims on the government. However, the law is practically ineffective in its daily applicability to victims of domestic violence. Some of the shortcomings of this Act are in the wording while others are in its conflicts with the prevailing procedural and constitutional realities in daily practice. This paper looks at some of these challenges from the point of view of a legal practitioner who has tried to use it in Kenya’s Magistrates’ Courts
Mitu-Bell Welfare Society redux: A note on the strengths and weaknesses of the Supreme Court judgement
No full textThis note reviews the case of Mitu-Bell Welfare Society in view of the concerns raised over the Supreme Court judgment, as well as points raised in its support. It argues that on one hand, the court laid down foundations for future interpretation that will help courts better address violations of socio-economic rights in Kenya. Importantly, the court addressed the rights of persons facing evictions in informal settlements and the ‘bare minimum’ standards that should be applied in such situations. On the other hand, the note agrees with those who have found issue with how the court canvassed the place of international law in Kenya
The duty to give reasons under Kenya’s Fair Administrative Action Act, 2015 in Kenya: Seven years later
No full textArticle 47 of the Constitution of Kenya 2010 has constitutionalised the right to be given written reasons for administrative actions and decisions. The same has been set out in Sections 4 and 6 of the Fair Administrative Action Act 2015. Based on the amber light and public administration theories, this paper argues that the right to be given reasons for decisions taken by administrative authorities has not only been used as a tool to offer legal protection to individuals adversely affected by administrative action but also helps in enhancing good public administration in Kenya. On the one hand, courts of law have considered the right to be given written reasons both as a constitutional ground for judicial review of administrative action under Article 47 of the Constitution and as a remedy available in judicial review as stated in Section 11 of the Fair Administrative Action Act. It has provided affected individuals with a basis to challenge an administrative action and decision through a judicial review process that not only preserves but also develops and progresses relevant common law principles. On the other hand, courts of law have viewed the right to be given written reasons as a tool aimed at enhancing public administration by ensuring that public administrators reflect on the lawfulness, quality, rationality, and fairness of their actions. However, the objective of Section 6 of the Fair Administrative Action Act may not be fully achieved because it does not expressly require public ad-ministrators to give adequate reasons to persons whose rights have been adversely affected by administrative action. Besides, it does not provide the criterion to be used to determine when the departure from the requirement to provide reasons for administrative actions is reasonable and justifiable
Update on Kenya’s implementation of the decision in the Nubian minors’ case
No full textThis paper provides an update on the Nubian minors’ case after the decision in the Institute for Human Rights and Development in Africa (IHRDA) and another, v Kenya (Nubian minors’ case) Through a communication to the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), the Nubian minors alleged, first, the violation of their right to a name and nationality. Secondly, they claimed breach of the principle of non-discrimination by the Kenyan government which they stated had denied them equal access to education and health facilities. Lastly, the Nubian minors complained of a lengthy vetting process when applying for Kenyan identity documents which they alleged put them at risk of becoming stateless. The ACERWC found the Government of Kenya in violation of the rights; to a name and nationality, health and education and recommended that Kenya takes measures to ensure that Nubian minors acquire nationality and proof of such at birth and to implement birth registration in a non-discriminatory manner. Previous work has failed to address the extent of Kenya’s adherence to the Nubian minors’ decision post the Nubian minors’ case. This paper provides a follow up after the Nubian minors’ case by examining Kenya’s reforms to comply with the decision in the Nubian minors’ case and highlights the challenges hindering Kenya’s full compliance with the decision
A critical appraisal of East African Community Law governing economic subsidies and their impact on competition
Get PDFThis article examines the effectiveness of the East African Community legal framework governing economic subsidies and their impact on competition in controlling the granting of such subsidies by Governments of the Partner States. It employs qualitative techniques involving documentary review of legal instruments, case law and scholarly writings, as well as interviews with selected officials in relevant portfolios in Kenya and Tanzania. The research concludes that the legal standards for the regulation of economic subsidies facilitate the effective limitation of the intervention in the market by Governments of the Partner States. The standards may, accordingly, be applied to limit their intervention in the market, using economic subsidies only to the extent strictly necessary to correct market failure. It also establishes, in contrast, that the regulatory institutions are unsuitable, with reference to their power, to limit the intervention in the market by the said Governments. Accordingly, it, recommends that the institutional framework of the Community be reviewed so as to safeguard the functional autonomy of the regulatory institutions and harmonise their mandates
The Kianjokoma Brothers: A clarion call to never forget
Get PDFOur teacher, Elisha Z Ongoya is fond of reminding us, again and again, the saying attributed to Thomas Jefferson: ‘Eternal vigilance is the price of liberty’. The case of our friend and his brother is tragically emblematic of this
Cultural Analysis of the Media: The West Media Culture Hegemony Perspective
Get PDFculture hegemony is a phenomenon which punctuates our daily living in the world today. Media are powerful vehicles of culture, ideology, information and education. To some extent they define people and their cultures. The media play a great role in cultural transmission and influence in and across nations. The developed world media are powerful and their influences transcend space and time. The impact of the developed world (mainly in the global North) media on some cultural aspects in the developing world (countries seeking to become more advanced economically and socially) is of significance. The impetus of the impact of influence has been precipitated by the sharing of information in bulks through the internet. Anchored on critical theory; the aim of this paper is to bring to focus some aspects which manifest cultural hegemony. It acknowledges that the cases of cultural influence are many and thus highlights a few. The main focus is on three areas which include: imperialism and dependency, creation of global culture and influence through international media events. The paper foregrounds and advocates for paradigm shift in this kind of existence
An Evaluation of the Coping Strategies of Medical Residents in Kenya
Get PDFCoping has been demonstrated as the critical determinant of mental health among medical residents. No study has quantitatively evaluated the coping strategies of medical residents in Kenya. This study, therefore, sought to assess the coping strategies of medical residents in Kenya. The BRIEF Cope was used. The study was a quantitative, cross-sectional online survey among medical residents in Kenya. The validated study tool consisted of the Brief-COPE. Stratified sampling technique was used with a sample size of 283 calculated. Descriptive statistics were analyzed into proportions. Adaptive coping strategies were more utilized. The most commonly used adaptive coping strategies were acceptance (mean 69.96, SD 22.41), planning (mean 69.15, SD 22.84), positive reframing (mean 67.81, SD 22.42), and religion (mean 62.40, SD 26.96). The most commonly used maladaptive coping strategies were self-distraction (mean 61.33, SD 21.38), venting (mean 55.04, SD 19.25) and self-blame (mean 52.52, SD 21.82). Adaptive coping strategies were used more than maladaptive ones. The most commonly used adaptive and maladaptive coping strategies were acceptance and self-distraction respectively. Policy formulation to promote utilization of adaptive coping strategies among medical residents in Kenya
Regulation of Interest in International Contracts Under UN Convention on Contracts for the International Sale of Goods
Get PDFThe 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) allows for claims of interest on damages, delayed payments or the price already paid (refunds) in articles 78 and 84. However, these articles have become the subject of considerable academic as well as judicial discourse. The question of interest remains a thorny issue in the Convention, with questions raised about whether in the first place, it is an issue that falls within the scope of the Convention. This article argues that because the CISG provides a platform for the uniform interpretation and enforcement of entitlements to interest in international sales, parties to international sales transactions should clearly specify in their contract the default governing law to govern claims for interest and other supplemental damages to minimise the risks that judicial and arbitral tribunals applies rules that expose them to significant claims. The CISG provides an avenue for the application of general principles of international sales law, and domestic legal provisions, hence, promoting flexibility. But the parties must circumscribe this flexibility to limit their exposure to significant interest claims