Strathmore Law Review

Editorial

2022-09-29T12:02:58+03:00

Foreword

2022-09-28T23:14:26+03:00

Indirect Discrimination: Huduma Namba (Digital Identification) and the Plight of the Nubian Community in Kenya

2022-09-28T21:33:17+03:00

Years after Kenya’s independence, the Nubians in Kenya are yet to enjoy the status of being fully-fledged citizens in their country. This is due to a variety of factors including the government’s refusal to formally acknowledge them as citizens, and its reluctance to streamline the current vetting process despite the overwhelming proof of its shortcomings. The discriminatory approach in the issuance of Kenyan identity cards (IDs) through the vetting process on grounds of religion and ethnicity not only entrenches the social, political, and economic exclusion of Nubians in Kenya but is also prohibited under Article 27(4) of the Constitution as indirect discrimination. Without taking adequate steps to change the status quo, the Kenyan government has instead launched a new digital identification system whose enrolment requires citizens’ IDs. Despite the full roll-out being halted by the court on grounds of data protection concerns, the switch to the Huduma Namba system is nonetheless set to disproportionately affect the ability of Nubians to participate as Kenyan citizens and contribute to their ‘otherness’. Consequently, this paper argues that the mandatory operationalisation of the Huduma Namba system in Kenya will constitute indirect discrimination against the Nubian community. It conducts this assessment by discussing the moral wrongfulness of indirect discrimination and laying out the architecture of indirect discrimination law in Kenya.

Right Behind Bars: Examining the Appropriateness of Kenya’s Prison Labour Wages and Earnings Scheme

2022-09-28T21:35:55+03:00

Sentenced inmates in Kenya are obligated to provide labour while imprisoned. This is to reduce idleness, for punishment, to enhance prisons’ cost-efficiency, and for rehabilitation. Some scholars posit that prisoners should be paid, others state that they should not, and some others recognise that they should be paid but vary between a high or low rate of payment. In Kenya, prisoners are paid for their labour at rates espoused in Section 5 of the Earnings Scheme, Kenya Prisons Service Standing Orders, 1979. The rates range between 10 and 20 cents a day. From this pay, they are to spend on necessities while in prison, send some money to their families and save some for use after their release. However, the rates are very low and based on the purposes the wages are to serve, the meagre pay is grossly incommensurate. This paper uses the concept of prison industrial complex and the human rights theory to make a case for higher pay for prison labourers. Lastly, it suggests a revision of the earnings scheme after drawing lessons from India.

Pacifying the Crises of (Un)Constitutional Amendments: The Case of Zimbabwe’s Amendment (No.1) and (No.2) Acts

2022-09-28T21:57:20+03:00

Zimbabwe enacted a new constitution in 2013 amid high hopes for a turn towards a new era of democratisation, constitutionalism, and adherence to the rule of law. However, subsequent to 2013, Zimbabwe entered an era of regression on the democratic values espoused by the new constitution. The apogee of the regression is the amendments of the Constitution, neutralising some of its most progressive elements. This paper analyses two recent constitutional amendments: amendments no. 1 and no.2, in the Zimbabwean context pertaining to judicial appointments and terms of office. It also evaluates the potential of judicial review of substantive validity of constitutional amendments through the lens of the doctrine of ‘unconstitutional constitutional amendments’. This is in defence of core constitutional values such as equal protection of the law, rule of law, separation of powers, and democratic participation. The central argument of this paper is that the amendments, which contravene the values espoused by the Constitution, are substantively unconstitutional because they precipitate a multi-pronged crisis of constitutionalism. These crises are embodied in the indirect control of the judiciary by the executive, and in ‘rule by law’ replacing ‘rule of law’. This article proposes that these crises can be remedied by exploring the doctrine of unconstitutional constitutional amendments.

Evaluating the Legitimacy of the Investor-State Dispute Settlement Mechanism for the AfCFTA

2022-09-28T22:01:52+03:00

Phase two of the negotiations on the African Continental Free Trade Area (AfCFTA) has begun. This phase includes negotiating the protocol on investment. The International Investment Regime (IIR) allows foreign investors to institute proceedings against states through Investor State Dispute Settlement (ISDS), which is criticised as undergoing a ‘legitimacy crisis’. This paper assesses the legitimacy of ISDS to evaluate whether it is a suitable mode of adjudicating international investment disputes in the AfCFTA. Accordingly, it sets out the criteria to be used in assessing legitimacy and further uses these criteria to appraise the legitimacy of ISDS, ultimately demonstrating that the present ISDS framework lacks sufficient legitimacy to be adopted as the mode of adjudicating international investment disputes in the AfCFTA. This is because of the perception that ISDS is unfair and biased due to its imperial and neo-colonial background and the excessive corporate power it grants to foreign investors. ISDS is also lacking in transparency and democratic values and conflicts with the AfCFTA’s objective of sustainable and inclusive socio-economic development. The paper advocates against the inclusion of ISDS in the AfCFTA protocol on investment and asserts that the challenge is in finding a mode of adjudication that is more equitable and inclusive than ISDS.

Safeguarding Personal Data: Meta Consent as a Remedy to Section 28(2)(c) of Kenya’s Data Protection Act

2022-09-28T22:05:52+03:00

Biometric identity systems have been adopted in the Global South, following the Global North’s lead. The greatest discrepancy, however, is the existence of legal frameworks that govern the use, storage and processing of the data collected. The Kenyan government’s roll-out of the Huduma Namba registration exercise in April 2019 with no existing data protection law in Kenya exemplifies this. Thereafter, Parliament passed the Data Protection Act. Unfortunately, parts of this law are not keen enough to protect personal data. Deviating from the requirement for personal data to be directly collected from the data subject, section 28(2)(c) of the referenced Act permits indirect collection of personal data from a source other than the data subject themselves. Relying on desk-based research and using the Huduma Namba exercise as a case study, this paper examines this permission and the imminent danger it poses to privacy of the personal data of Kenyans. Finding that section 28(2)(c) exposes personal data to the privacy violations of secondary use and exclusion threatens the right to privacy, this research suggests that the meta consent model as embraced by the healthcare sector emerges as a feasible solution. This model allows data subjects to determine their consent preferences i.e., how and when they wish their consent to be sought for further collection and use, at the point of primary collection of personal data. Additionally, this paper recommends that the model should be embraced by the judiciary in its adjudication of matters and finally, that an amendment incorporating the solution should be made.

Divorce Law in Kenya: In Support of a Uniform No-Fault Regime

2022-09-28T22:11:51+03:00

In 2014, Kenya enacted the Marriage Act to amend and consolidate various laws on marriage and divorce. Among the amendments introduced was the irretrievable breakdown ground of divorce alongside more traditional fault-based grounds. The court in CWL v HN noted that the introduction of this ground had effectively done away with the need for petitioners to provide evidence of matrimonial fault in divorce proceedings. Despite this, the Act still maintains traditional fault grounds for divorce not only as independent grounds but also as factors to be considered when determining whether a marriage has irretrievably broken down. The author contends that this retention of fault-based requirements reflects an outdated position and contradicts the thinking behind the introduction of irretrievable breakdown as a divorce ground. This study, therefore, proposes adopting a uniform no-fault divorce system premised on irretrievable breakdown. To better align this system with the dual objective of protecting individual dignity while also safeguarding the dignity and sanctity of marriage, the study proposes a model that includes a mandatory requirement to attempt reconciliation before petitioning for divorce.

Clash of Titans: Streamlining the Complementary Roles of the DPP and the AG in Kenya’s Extradition Procedure

2022-09-28T22:20:32+03:00

Extradition encompasses both the administrative bodies and the judicial bodies. The Extradition (Contiguous and Foreign Countries) Act requires that an authority to proceed is issued once the Attorney General receives the extradition request. This is different from what is contained under the 2010 Constitution. Currently, the 2010 Constitution mandates the Director of Public Prosecutions to institute criminal proceedings as opposed to the Repealed Constitution which conferred it on the Attorney General. Hence, courts have interpreted the authority to proceed in extradition to fall within different ambits. For example, in the 2015 case of Samuel Gichuru v Attorney General, the High Court held that this authority fell under the Office of the Director of Public Prosecutions. This was overturned in the 2018 Court of Appeal case, Chrysanthus Okemo v Attorney General, where the authority was to be granted by the Attorney General. However, the Supreme Court in Director of Public Prosecutions v Chrysanthus Okemo (2021) upheld the High Court’s decision. Therefore, this paper sets out to determine and streamline the nature of extradition in Kenya, given that there exist overlapping mandates and lacunae that the law needs to address for a uniform practice of extradition in Kenya.