Strathmore Law Journal

The Efficacy of Legal Reforms in Managing Conflict of Interest

Peter Kwenjera, IanChris Muchangi — Thu, 17 Nov 2022 00:00:00 +0300

Managing conflict of interest in the public sector has been and will always be a concern for governments the world over. This is accentuated for several African countries which continue to rank highly on the corruption and bribery indices. Corruption is closely connected to the issue of conflict of interest and consequently, it is important to seek best practices in place to deal effectively with conflict of interest in the public sector. Various tools and legal instruments have been developed by regional and global organizations with the singular aim of aiding their member states to review and modernise their conflict of interest policies. Some African states have either adopted these instruments as forming part of their municipal law or legislated laws on conflict of interest. This article examines the role played by law in defining and regulating conflict of interest and how conflict of interest affects the public sector in Africa. It focuses on how law can be deployed effectively as a tool of establishing governance structures that maintain a culture that minimizes and manages the occurrence of conflict of interest.

A Conceptual Framework for Assessing the Performance of Kenyan Courts Undertaking Judicial Review of Legislative Action

Buluma Bwire, Migai Akech, Agnes Meroka-Mutua — Thu, 17 Nov 2022 00:00:00 +0300

Article 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.

Defining Rape: The Problem with Consent

Caroline Adoch — Thu, 17 Nov 2022 00:00:00 +0300

Rape is one of the most commonly reported crimes all over the world. It is a crime under both international and national law although it is still primarily prosecuted before domestic courts. The traditional common law definition of rape articulates three elements of the crime of rape; vaginal penetration, lack of consent and direct participation of the accused person. However, many jurisdictions are moving away from consent-based definitions of rape. Through a feminist lens, this paper explores the place of consent as an element of the crime of rape. It undertakes a comprehensive review of literature and case law and makes an analysis of the articulation of consent as an element of the crime of rape at both national and international levels. It establishes that the legal definition of rape has a significant impact on the prosecution of rape cases and on the victim of rape. If the definition is based on the need for the prosecution to prove the lack of consent, then the legal process is focused on her behaviour and reaction to the sexual assault. It concludes that a definition of rape based on lack of consent is problematic and hinders access to justice for rape victims and it is inconsistent with the contemporary understanding of rape as a crime of sexual violence.

Judicial Landmarks in Modern Governance: The Contemporary Constitution in a Common Law Medium

Jackton B. Ojwang, Loise Wangeci — Thu, 17 Nov 2022 00:00:00 +0300

Governance institutions evolve within historically-marked ‘frontiers’, but the judicial sector more so, in view of its sharper normative design. The motions of courts are shown to rest upon legal principles and patterns that draw cast and moulding from inputs of scholars and jurists nurtured in the common law tradition, and their heritage has constantly attended upon the conception and formulation of the modern codified Constitution, which constantly draws upon the same for its effectuation. The Constitution, therefore, rests upon the people’s sovereign mandate, and the direct legislative signals, just as it remains predicated upon regular interpretation and re-definition by the values of the judicial order, largely evolved under the common law tradition – and thus, dependent upon the inspirational works of ages, of distinguished jurists in that tradition.

The Recovery of an Undue Payment by a Manumitted Slave in Ancient Rome

Nadja El Beheiri — Thu, 17 Nov 2022 00:00:00 +0300

In his comment on the Pretorian edict the ancient Roman jurist Ulpian (+228) refers to a case where positive law (ius civile) and natural justice (aequitas naturalis) came into collision. A slave was manumitted in a will under the condition of paying 10 to the heir. Subsequently the owner of the slave made a second informal will (codicillus) where he manumitted the slave without mentioning any condition. After his masters dead the slave being ignorant of the second will paid 10. The question arose whether he could recover the money. The case was decided first by the elder Celsus who hold that the slave could not recover the money. On the contrary, the younger Celsus stated that the recovery of the money was possible. This latter jurist made his decision – as Ulpian stated – influenced by a feeling of natural justice. In the present paper we analyse the case will be also analysed from the perspective of theory of social acts developed by Adolf Reinach, one of the most outstanding members of the realistic branch of phenomenological school. Furthermore, a relationship is established between the present case and the Rescript of the Emperor Hadrian according to which a demand for operae could not be reinforced in case that the patronus was obliged to free the slave through a fideicommissum.

Arbitrating During and Post Covid-19: Nigeria and the Imperativeness of Adopting a Legal Framework on Third-Party Funding

David Eyongndi, Faith N. Opara — Thu, 17 Nov 2022 00:00:00 +0300

The advent of Covid-19 has led to the inability of parties fulfilling their commercial and contractual obligations. This inability has led to disputes and has negatively affected the financial fortune of many persons and businesses so that they may not afford or solely bear the cost of funding arbitration. To ensure that parties’ intention to arbitrate their disputes is not frustrated, Third-party funding (TPF), an acceptable practice in jurisdictions such as the United Kingdom (UK), Singapore, and Hong Kong, is a possible solution. Unfortunately, TPF is unknown to Nigerian law as it offends the common law doctrines of champerty and maintenance. This article, through a doctrinal methodology, examines the legislative effort towards institutionalising TPF in Nigeria and the ethical concerns advanced against it. The article argues that these concerns are more imaginary than real. Hence, they ought not to deter the adoption of TPF in Nigeria for intra- and post-Covid-19 funding of arbitration. It discusses the practice of TPF in the UK, Hong Kong, Singapore, South Africa, Ghana, and France in which these ethical concerns have been dealt with and draws lessons for Nigeria.

Deciphering Sustainable Development within the Framework of the International Human Rights System

Leticia Carmen ASUMU BENGO — Thu, 17 Nov 2022 00:00:00 +0300

Today, sustainable development seems to not only have become the paradigm of new development, but its link to human rights has also become evident, considering the influence exerted on it by the main normative instruments that reflect these rights. It should come as no surprise, therefore, that this issue is now a priority within the UN’s framework for action. While traditional normative instruments such as international treaties and other conventions establish the criteria for the protection of human rights, new mechanisms, such as the Millennium Development Goals (MDGs) and the Sustainable Development Goals (SDGs) are increasingly helping to reinforce these rights as well. This paper aims to contribute in ‘deciphering’ the enigma of sustainable development, by understanding the importance of these new mechanisms, especially that of the SDGs, which are the main focus of our analysis, in order to identify their link to human rights. For this, we will provide an overview of the concept of sustainable development, analysing it from its origins in the field of international law to its current place in the Global Development Agenda. While defining the true nature of sustainable development remains a challenge, sustainable development, and more specifically the SDGs, are imbued with a human rights component.

Legal and Regulatory Framework for Digital Credit Providers in Nigeria: Lessons from Kenya’s Digital Credit Providers Regulations, 2022

Dr. Tayewo Adewumi, Temilade Jolaosho — Thu, 17 Nov 2022 00:00:00 +0300

The current issue that affects Sub-Saharan Africa is the proliferation of unlicensed digital credit providers. These digital credit providers employ the use of information and communication technology in making their loan products attractive. Their loan recovery methods are crude and life-threatening coupled with a very high-interest rate. This article discusses the current situation in Nigeria and Kenya. The Nigerian government, through joint action, carried out a raid on these digital credit providers, freezing their bank accounts and ordering that google play store and apple store should remove them from their platforms. Kenya has been able to put these digital credit providers under the regulation of the Central Bank of Kenya. In its press release dated March 21, 2022, the Central Bank of Kenya (CBK) announced the publication by Legal Notice No. 46 of March 18, 2022, of the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022. The Regulations were issued in accordance with Sections 57(1), 57(3), and 57(4) of the Central Bank of Kenya Act (the CBK Act). They provide for the licensing and oversight of previously unregulated Digital Credit Providers (DCPs). The Regulations are now operational This article examines the regulations and concludes by recommending that Nigeria should emulate Kenya by publishing Central Bank of Nigeria Digital Credit Providers Regulations.

Comparative Criminology and Criminal Justice within the African Continent

John Winterdyk — Thu, 17 Nov 2022 00:00:00 +0300

There is no corner of the world where crime cannot be found. Increasingly, conventional crimes are being compounded by transnational crimes which know no borders. Concern for public safety and security nationally, regionally, and internationally have increasingly becoming an international issue and concern. This has been reflected in the 16^th of the United Nations Sustainable Development Goals (i.e., Peace, Justice, and Strong Institutions). There is an ever-increasing need for comparative criminology and criminal justice research in a world where communication, travel, and international cooperation and collaboration are becoming increasingly common. While many criminology and criminal justice programs offer related programs and courses, the practice of comparative criminological or criminal justice research on the African continent is less well developed. This article draws on existing research and practices to explore the rationale and justification for engaging in such research and offers several methodological approaches that can be used to promote comparative criminological and criminal justice inquiry and research within the African continent.

Promoting Efforts in the Eradication of Child Trafficking in Nigeria: The Need for a More Robust Legislation

Uche Nnawulezi, Bosede Remilekun Adeuti — Thu, 17 Nov 2022 00:00:00 +0300

The prevalence of child trafficking and its widespread impunity, whether committed in Nigeria or outside the country, has been firmly condemned by the United Nations and its eradication has been consistently recognised in both regional and international laws. The main aim of the article is to examine how effectively the legal framework on eradication of child trafficking in Nigeria has addressed several incidences of trafficking. Driven primarily by efforts to combat child trafficking, overcome the multiple ensuing challenges, and promote a child-friendly environment, there is an urgent need to re-examine the existing legislation on child trafficking with a view to ascertain the inadequacies in Nigerian trafficking laws. Further, the problematic scenario is relatively attributed to poor regulatory frameworks, and has become imperative to re-examine the legislation in order to curb the emerging challenges in Nigeria. This paper investigates what impedes the eradication of child trafficking in Nigeria, and what measures could overcome such problems. This paper adopts an analytical and qualitative approach and builds its argument on existing literature and a synthesis of the ideas in this body of knowledge. It argues that continued neglect of the inadequacies existing in Nigeria’s legislation on child trafficking portends a clog in the eradication of child trafficking in the country. Nevertheless, this article provides some recommendations to guide policy makers on how child trafficking can be properly eradicated in Nigeria.

Editorial

Juan Carlos Riofrio — Thu, 17 Nov 2022 00:00:00 +0300

Judicial Ethics: A Key Tenet to Legal Ethics

Lydia Achode — Thu, 17 Nov 2022 00:00:00 +0300

Judicial ethics are arguably one of the most important aspects of legal ethics Values of legal ethics such as decorum, dignity, courtesy, and rationality that were emphasized by the late but still foremost scholar of professional legal ethics, Deborah Rhode, readily apply to the judicial context.. Related to these values, judicial ethics ensures that three important attributes or three ‘Is’ characterise the judicial process and the conduct of judicial officers: independence, impartiality and integrity. Adherence to these three principles of judicial ethics is key in securing the administration of justice, professional discipline in the judiciary, and public confidence. This article therefore takes the view that the competence of judges not only includes their academic qualifications but their possession of qualities necessary to fulfil the three Is and other standards of ethical judicial conduct. Moving from this understanding, the article analyses how judicial ethics, as a derivation of legal ethics, shapes the role of judges and, further, how Kenya’s Judicial Service (Code of Conduct and Ethics) Regulations integrates established principles of judicial ethics. From this analysis, the author argues that judicial ethics are inseparable from judicial competence and that Kenya’s Judicial Service (Code of Conduct and Ethics) Regulations effectively reflect the necessary principles of judicial ethics. Thus, continued enforcement of the judicial Code of Conduct and Ethics is essential to safeguarding judicial ethics in the Kenyan judiciary.