3 research outputs found
Integration of African Customary Legal Concepts into Modern Law: Restorative Justice: A Kenyan Example
No full textAfrican societies have been governed according to known norms, customs, and practices that together constitute African customary law. These societies have placed emphasis on communal as opposed to individual identity, and this has extended to their justice systems. African customary law therefore has placed emphasis on the concept of restorative justice based on the understanding of restoring the societal balance that has been disrupted by crime. This has fostered offender accountability, reparation to the victim, and full participation by the affected community members. This essay examines the resurgence of African legal philosophy and its subsequent integration into modern African formal legal systems. In particular, it interrogates the recent Kenyan example of integrating traditional dispute resolution mechanisms as one of the guiding principles for the exercise of judicial authority by Kenyan courts under the 2010 Constitution. It argues for the development of structures to properly utilize such mechanisms within the Kenyan context
A Conceptual Framework for Assessing the Performance of Kenyan Courts Undertaking Judicial Review of Legislative Action
No full textArticle 165 (3) (d) of the Constitution of Kenya 2010 gives the High Court the power of constitutional interpretation and to uphold constitutional supremacy by declaring void any law that is inconsistent with the Constitution or invalid any act or omission contravening it. Within the current Kenyan context, judicial review of legislative action has become the common practice. The courts are constantly drawn into the realm of legislative matters at the national and devolved levels of government established under the Constitution. However, the High Court’s role is limited to interpretation only and it cannot compel Parliament to modify the legislative action contravening the Constitution. Conversely, where the Legislature disagrees with the Court’s assessment of what the constitutional norms require it cannot substitute the Court’s interpretation with its own. The courts are subsequently tasked with the delicate prospect of balancing the legal and political constraints that underlie any case of judicial review of legislative action. This paper develops a conceptual framework for assessing how courts, in general, go about exercising their power of judicial review of legislative action in a way that enables them to adhere to the requirements of the separation of powers doctrine, while considering the legal and political constraints under which they must operate. The resulting framework proposes four possible types of courts that may emerge based on how a court balances the legal and political constraints prevailing upon it
Standards required in maintaining the chain of evidence in the context of post rape care services: Findings of a study conducted in Kenya
No full textSexual violence (SV) is a serious societal problem that creates significant challenges to local communities in their attempt to create an overall plan for meeting the medical, emotional, physical safety, and legal needs of SV survivors. It is important to understand the existing links between the health sector and police as a basis for addressing the complexities surrounding SV. Appropriate management of SV survivors requires a standardized clinical evaluation, an effective interface with law enforcement for the handling of forensic evidence, and coordination of the continuum of care. From the public health perspective, the issues to be addressed revolve around accessibility of medical services and consistency in quality of care. Public health concerns are also guided by the legal procedures to be observed in the collection of medico-legal evidence by health care providers from the survivor to be used in prosecution of the sexual offenders within the criminal justice system, hence the need for countries to develop standardized mechanisms through which appropriate support will be delivered to survivors of SV from a medical and legal dimension. This report presents the findings of an operations research study conducted in Nyanza and Eastern Province, Kenya, in 2007/8
