Strathmore Law Journal <p><em>Strathmore Law Journal </em>is a platform open to scholars and researchers around the world. It publishes original studies related to Human Rights and the law in Africa. The studies could have a philosophical, public policy, governance or economic perspective. The Journal’s purpose is the diffusion of knowledge and the promotion of inter-disciplinary debate on different legal issues.</p> en-US (Juan Carlos Riofrío) (Khalil Badbess) Fri, 18 Jun 2021 08:14:59 +0300 OJS 60 A Representative of the People <p>This article is dedicated to analyze Dominic Burbidge’s <em>An experiment in devolution. </em>Published by Strathmore University Press in 2019, the 319-page volume is a welcome addition to the growing scholarship on devolution in Kenya. This text, indeed, brings with it a much needed ‘empirical grit’ to a discourse previously saturated with historically and theoretically derived conjecture. The hallmark of the book is, therefore, this attention to the material, the meticulousness with which it relays empirical findings and finally, how the author manages to successfully marry empirical data and theory; resulting in an interesting telling of the story of devolution. Thus, Burbidge sets out to test the performance of devolution in the counties where it was most predicted to fail: the former Central Province. He investigates how devolution has actually played out in this region; taking into consideration the historically complicated relationship between Mount Kenya and Nairobi and the enduring scepticism as to the compatibility of devolution and the interests of Central Kenya.</p> Lizzy Muthoni Kibira Copyright (c) 2021 Lizzy Muthoni Kibira Tue, 08 Jun 2021 00:00:00 +0300 Constitution-Making from the Middle: Civil Society and Transition Politics in Kenya, 1992-1997, Second Edition, by Willy Mutunga Peter Kimani Copyright (c) 2021 Peter Kimani Tue, 08 Jun 2021 00:00:00 +0300 Preliminary Pages John Osogo Ambani, Melissa Mungai Copyright (c) 2021 John Osogo Ambani Tue, 08 Jun 2021 00:00:00 +0300 A Critique of the Supreme Court of Sierra Leone’s Conviction of Augustine Marrah for Criminal Contempt <p>The Legal Practitioners Act of 2000 authorises the Sierra Leone Bar Association to elect six legal practitioners for membership of the General Legal Council (Council), which is the regulatory body of the legal profession in Sierra Leone. In April 2019, Ibrahim Sorie was among the legal practitioners elected to the Council. Subsequently, I—another legal practitioner—objected to and petitioned in the High Court of Sierra Leone Sorie’s election to the Council on the basis of ineligibility.</p> <p>The thrust of my objection was that Sorie, a two-term ex-president of the Sierra Leone Bar Association had not yet attained the necessary fifteen-year standing qualification at the date of his appointment to the Council, based on his year of enrolment into the Permanent Register or Roll of Court in 2011.</p> <p>Sorie filed an action in the Supreme Court against the Council invoking the exclusive original jurisdiction of the Supreme Court to interpret certain portions of the Constitution of Sierra Leone vis-à-vis the eligibility provision for membership to the Council in the Legal Practitioners Act.2 The Supreme Court delivered a controversial 97-paged judgment on 27 October 2020.</p> Augustine Sorie-Sengbe Marrah Copyright (c) 2021 Augustine Sorie-Sengbe Marrah Tue, 08 Jun 2021 00:00:00 +0300 International Solidarity, Human Rights and Life on the African Continent ‘After’ the Pandemic <p>The COVID-19 pandemic has left a massive amount of disease, death, fear and despair in its stride, and will continue to seriously trouble the world even in its wake. To be sure, Africa has not been spared any of these maladies. In the result, the pandemic has posed a formidable threat to the enjoyment of human rights around the world. More specifically, as is widely recognised, the pandemic (and many of the measures taken to end it) have seriously threatened or harmed the enjoyment by billions of people across the world, the continent included, of the human rights to health, life, education, food, shelter, work, freedom of movement, liberty, and freedom of assembly. Less obvious to many is the fact that the pandemic (and the dominant responses to it) can also constitute serious harm to the enjoyment of the rights to development and democracy, and to freedom from discrimination and gender-based violence. Even more troubling is the fact that these dangers and impacts tend to be exacerbated in the Global South to which Africa belongs geo-politically and identity-wise, and in relation to the poor and the racially marginalised everywhere.</p> Obiora Chinedu Okafor Copyright (c) 2021 Obiora Chinedu Okafor Tue, 08 Jun 2021 00:00:00 +0300 COVID-19 Pandemic: Awakening the Call for Paradigm Shifting in the Teaching, Learning, Research and Professional Development <p>The COVID-19 pandemic has awoken the entire world from its slumber – the highly-industrialised and the less-industrialised, those regarded to be developed and the less developed or underdeveloped in sciences and technologies, the rich/wealthy and the poor-but-rich-in-resources alike. It has shown that it has no respect for the few who belong to the ruling class and political elites – the virus’ attack on the heir-to-the-throne in Britain, Prince Charles, and the British Prime Minister, Boris Johnson, are good examples. International conferences and summits of heads of state and governments are being conducted virtually. Educators and students from primary school to university and college levels are forced to re-skill to teach and learn online and not mainly through contact learning as was the established norm. Contextually, limited electrification hinders access to the internet and digitisation. The emerging norm is no longer going to be the traditional separation of the sciences, technology, engineering and medicine (STEM) from humanities and social sciences. The interface and interrelatedness of disciplines is a requirement in managing and manoeuvring human life through this pandemic, and beyond. There should be more use of multi-discipline and inter-discipline perspectives and approaches of knowledge development and application. This is not a call for the death of mono-disciplines. They remain essential fields of specialisation within broader contexts.</p> Shadrack B.O Gutto Copyright (c) 2021 Shadrack B.O Gutto Tue, 01 Jun 2021 00:00:00 +0300 The Two-thirds Gender Rule ‘Mirage’: Unlocking the Stalemate <p>Today we talk about the principle of gender inclusivity in Kenya’s governance framework.1 I thank the administration of the Mombasa Law Campus of the University of Nairobi for giving me an opportunity to address its academic community on the subject. I thank the Mombasa Law Society, the oldest law society in this country, for partnering with the University of Nairobi, Mombasa Campus, on this worthy course. Partnerships between industry and the academy are always a worthy venture. The choice of topic today is both germane and misleading. The journey towards a more inclusive society in Kenya has been a rather long one. On 9 March 2018, the key protagonists in Kenya’s political space, President Kenyatta and former Prime Minister Raila Odinga recognised inclusivity as one of the nine-point agenda towards building bridges in Kenya. The aspect of inclusivity called gender inclusivity has also had a longwinded history. There is no possibility of me capturing the story of this journey fully and justly in today’s presentation alone. I will, therefore, focus on a very small aspect of this journey, that is, the cases that I have had the privilege of history to walk through as an advocate.</p> Elisha Ongoya Copyright (c) 2021 Elisha Ongoya Tue, 01 Jun 2021 00:00:00 +0300 Land Reform in Kenya: The History of an Idea <p>The great legal scholar Patrick McAuslan described the 1990s as inaugurating a new era of land law reform. Land law reform has taken place on a significant scale since 1990: a total of 32 new national land laws have been enacted since 1990 in nearly 60 per cent of African states. Land issues have been the cause of both simmering discontent and violent conflict throughout Kenya’s colonial and post-colonial history. They remain a ‘key fault line’ in modern Kenya. Historians of Kenya and commentators on its politics continue to find patrimonialism, ethnic favouritism and corruption at play, nowhere more so than in the politics of land. Kenya’s problems with land defy easy description: they remain complex and multi-faceted and include massive and worsening inequalities in access to land, a propensity to land grabbing and continuing conflicts over who is and who is not entitled to occupy land. Efforts to address these problems have since before independence been erratic at best.</p> Ambreena Manji Copyright (c) 2021 Ambreena Manji Tue, 01 Jun 2021 00:00:00 +0300 Burying the Kasuku Syndrome: Constructing Inventive Sites of Knowledge <p>Having come here to advocate the immediate burial of ‘kasuku culture,’ alias, ‘parrot culture,’ I had better initiate the process of grave-digging myself. As an African academician, poet, playwright, artist, cultural worker and activist, I have sought to do this in different ways. One such way has been using my intellectual work to affirm progressive indigenous African paradigms, including orature, which Pio Zirimu and Austin Bukenya once concisely defined as ‘verbal art.’1 I will, therefore, use an African Orature style of delivery to hold this conversation with you. I cannot think of a more appropriate tool of competing with fatigue at the end of a long day, or of keeping a possible dozing audience alive, following such a challenging dinner. My talk, or palaver, will be divided into movements or cycles, labelled palaver one to ten. Inside each of these full stream palavers will be meandering tributaries of smaller, but related palavers. If the meanderings interfere with your focus, therefore, just find ways of tolerating them. For instance, treat them as the musings of an elder-in-the-making, borrowing a leaf from the wazee wakumbuka (elders recollect), an extremely popular kipindi (program) that used to air on Kenya Broadcasting Corporation (KBC) radio network sometime in the 1970s.</p> Mĩcere Gĩthae Mũgo Copyright (c) 2021 Mĩcere Gĩthae Mũgo Tue, 01 Jun 2021 00:00:00 +0300 The Illusion of Greener Pastures: Violence and Justice for Female Ugandan Migrant Workers in the Middle East <p>High levels of unemployment especially among the youth remains one of Uganda’s challenges. About 165,000 Ugandans currently work in the Middle East; some in search of greener pastures through what the labour movement terms as labour expropriation. The Ugandan Government has recognised this expropriation as one providing employment opportunities for young people and good for Uganda’s economy. However, many youth - mostly young women - have fallen prey to violence and abuse meted on them by their employers, including physical and sexual abuse. This article illustrates through real experiences of Ugandan women, the negative consequences of labour expropriation, which have attracted national visibility because of the obvious human rights and gender-based violations that arise especially in the form of violence against women. The article also examines the legal and policy framework relevant to expropriation, including bilateral agreements signed between Uganda and receiving countries in the Middle East. Making reference to interviews with returnees or former domestic workers in the Middle East as well as key informants working in key institutions, this interrogation finds both the laws and structures for protection of young women inadequate in terms of meeting their subjective needs and expectations for protection against violence while working abroad. Going forward, the Ugandan Government should make deliberate efforts at addressing the plight of female migrant workers in the Middle East through strengthening the legal framework and facilitating the Ministry of Gender, Labour and Social Development to undertake stronger monitoring of recruitment agencies, among other initiatives.</p> Zahara Nampewo Copyright (c) 2021 Zahara Nampewo Tue, 01 Jun 2021 00:00:00 +0300 Ending the Oppression Olympics: Promoting the Concomitant Political Participation of Marginalised Groups in Kenya <p>The 2010 Constitution of Kenya is laudable for its commitment to redressing the exclusion from political and public life experienced by marginalised groups. Articles 21 and 27 require that the state and public officials take legal and administrative measures to ensure marginalised groups’ participation in governance and other spheres of life. Moreover, Article 100 mandates the passing of a single legislation to provide for the representation in Parliament of women, youths, persons with disabilities, ethnic minorities and marginalised communities. These provisions evince an intention that their inclusion be redressed simultaneously.</p> <p>However, the equality debate appears to have become synonymous with gender equality or the implementation of the ‘two-thirds gender rule’ as it is popularly known. This rule requires that not more than two-thirds of any elective or appointive position be occupied by one gender. Women’s underrepresentation has dominated litigation on inclusion, academic writing and proposals for electoral reforms.</p> <p>This unitary approach to inclusion, which privileges one category of difference, makes other marginalised groups doubly invisible. Moreover, statistics demonstrate that despite privileging gender over other factors of exclusion, women’s participation remains marginal. Further, it causes the groups at the bottom to compete rather than cooperate, while still falling short of addressing the informal patterns of prejudice and discrimination that keep the majority of the marginalised on the fringes of public life.</p> <p>This research proposes the intersectionality approach to policy design to simultaneously promote political participation of the various groups. Intersectionality recognises the role of the various categories of difference as equally important yet conceptually different, examines the relationship between the various categories, and emphasises the interaction between individual and institutional factors in achieving equality. Intersectionality, therefore, provides the most effective approach to diagnosing the factors fuelling exclusion and ultimately providing an effective prescription.</p> Luciana Thuo Copyright (c) 2021 Luciana Thuo Tue, 08 Jun 2021 00:00:00 +0300 Devolution as a Panacea to Deeply Divided Multi-Ethnic (National) States: The Continuing Kenyan Experiment <p>The multiple designers of Kenya’s 2010 Constitution intended that devolution should address the many years of economic exclusion that many Kenyan communities had suffered. While this paper concedes that the design of the 2010 Constitution to a large extent achieves this role, the same constitution fails at engendering national multi-ethnic unity. This paper uses three broad approaches to assess Kenya’s devolution experiment under Kenya’s 2010 Constitution and ethnic unity: the first is Daniel Posner’s Institutional Politics approach, the second is Donald Horowitz’s Constitutional Ethnic Federalism approach, and the final one is Yash Pal Ghai’s Constitutional Autonomy approach. The author argues that limiting our focus to these three approaches as applied in this paper, there is no constitutional design that can easily achieve the lofty objective of national multi-ethnic unity in Kenya. This is because Kenya has had deeply ethnicised politics and social relations that are tied to ethnic political patrons and elites who are always at the forefront of constitutional design outcomes. This explains why even with the 2010 Constitution’s attempt to weaken the imperial presidency, many Kenyans still perceive ascendancy to the presidency as the zenith of social, economic, and political actualisation. The paper, therefore, concludes that the Posner and Horowitz approaches above have merits and demerits and have also been variously applied under the 2010 Kenyan Constitution. The Ghai approach has neither been contemplated nor applied in the 2010 Kenyan Constitution. It emerges that even if the demerits under the Posner, Horowitz, and Ghai approaches were eradicated, which might be quite difficult or even impossible, and yet the zero-sum competitive politics for the presidency persists, the politicisation of ethnicity and the conflicts that stem from this will persist.</p> Harrison O Mbori Copyright (c) 2021 Harrison O Mbori Tue, 08 Jun 2021 00:00:00 +0300 Constitutional Guardianship in Kenya’s Bicameral Legislature <p>The Constitution of Kenya of 2010 adopts a bicameral legislative structure, within a devolved system of governance, consisting of the National Assembly and the Senate. In keeping with the devolved structure of government, the Senate’s legislative mandate is to a large extent confined to considering, debating and approving Bills concerning counties as well as determining the allocation of national revenue among counties and providing oversight over the national revenue allocated to the 47 county governments. Over the last ten years, Kenya has witnessed a great consolidation of power by the National Assembly at the expense of the Senate especially with regards to the roles of the chambers over the process of enacting the Division of Revenue Bill. Such consolidation of power attempts to relegate the Senate to a peripheral role within the bicameral legislative institutional structure. Consequently, the Supreme Court has asserted its advisory power and the High Court its judicial review power to mete out this inter-institutional conflict between the National Assembly and the Senate. This paper interrogates the manner Kenyan courts have discharged the contested role of serving as guardians of a legislative institution in a conflict within the bicameral legislative system. It makes the point that while courts have the authority to intervene in inter-cameral conflicts, judicial intervention should be exercised as an option of last resort, only utilised after exhaustion of the constitutionally ordained intra-parliament mediation process.</p> Walter Khobe Ochieng Copyright (c) 2021 Walter Khobe Ochieng Tue, 08 Jun 2021 00:00:00 +0300 Legal Education and its Contemporary Challenges in Sub-Saharan Africa <p>There is an increasing criticism against law schools. To some, the system does not sufficiently prepare students for the market or to meet society’s needs. Others argue that technology and current trends should inspire new business models in the legal profession. Legal education is also being accused of emphasising theoretical content rather than skills necessary for practice, with the character of African jurisprudence struggling for recognition in the contemporary curriculum. Moreover, a fragmented society under pressure from global shifting values also faces perennial legal challenges relating to issues of justice and other ethical problems trained lawyers may face. Therefore, the role of legal education ought to be re-examined to prioritise the common good without threatening individual interests, which is what the rule of law aims at achieving. This paper investigates the problem from the perspective of unity of knowledge to address the traditional theory-andpractice divide in legal education and argues that the idea of unity of knowledge provides the basis for a correct interdisciplinary approach to solving the problem, relying on systems of legal training as they have developed in some parts of Africa especially Kenya, Nigeria and South Africa. Considering such illustrations, this framework is also likely to enable a rational articulation of theory and practice in legal training that can create more space for African views of law as reflected in the current efforts to decolonise legal education in South Africa.</p> Antoinette Kankindi, Victor Chimbwanda Copyright (c) 2021 Antoinette Kankindi, Victor Chimbwanda Tue, 08 Jun 2021 00:00:00 +0300 An Examination of the Lomé Charter <p>Described as the common heritage of humanity by Arvid Pardo in 1967, the sea has always been unanimously recognised as a source of life. Hosting most of the world’s living and non-living resources, the sea has always attracted human’s attention. From organised expeditions in search of new land to fishing, the sea has contributed to the economic, social and cultural development of many nations. Despite extensive developments made in the road and air transportation systems to facilitate trade, the sea still plays an active part in international trade. According to the United Nations Conference on Trade and Development (UNCTAD), 80% of goods traded worldwide are carried by sea and as per the UNCTAD Review of Maritime Transport 2020, the volume of seaborne trade for 2019 reached 11.08 billion tons. Currently, many countries and regional blocs are converging towards this concept of maritime security in order to restore peace and stability at sea. In Africa, for instance, maritime security is expressly defined in Africa’s Integrated Maritime Strategy 2050 (2050 AIM Strategy). This article is devoted to examine the status questionis of the treaties and legislation application.</p> Marie Valerie Uppiah Copyright (c) 2021 Marie Valerie Uppiah Tue, 08 Jun 2021 00:00:00 +0300