Strathmore Law Review
https://journal.strathmore.edu/index.php/lawreview
<p>The <em>Strathmore Law Review</em> is an annual peer-reviewed, student-edited academic law journal published by the Strathmore University Law School in conjunction with the Strathmore University Press. It considers submissions from undergraduate and masters students from any university, and is published at the beginning of the year. </p>Strathmore University Pressen-USStrathmore Law Review2414-8164Algorithmic Bias in Hiring Algorithms: A Kenyan Perspective
https://journal.strathmore.edu/index.php/lawreview/article/view/480
<p><em>The use of machine learning algorithms has permeated into nearly all aspects of life. With this steady integration, tasks previously handled by humans are increasingly falling into the ‘hands’ of machines. Ideally this would be celebrated as a great improvement for mankind. Tasks that were previously riddled with human bias such as hiring would now be performed by an ‘omniscient algorithm’ that could harbor no bias therefore resulting in fair outcomes for the previously oppressed. However, this is not the case. The integration of machine learning algorithms in the hiring process risks further exacerbating existing bias that was prevalent or introducing new data-driven bias. The question then is how to contend with this novel form of discrimination: algorithmic discrimination.</em> <em>The answer to combating algorithmic discrimination is algorithmic fairness. The goal should not be to create ‘fair’ algorithms but rather to detect and mitigate fairness-related harms as much as possible. By doing so, a balance can be struck between the competing interests of innovation and employee rights. This article demonstrates that algorithmic discrimination during hiring is a real threat to the Kenyan jobseeker. Although this form of discrimination can be addressed by Kenyan law, more needs to be done to detect and mitigate fairness-related harms as much as possible.</em></p>Kazungu Mrashui
Copyright (c) 2024 Strathmore Law Review
2024-12-192024-12-1991133610.52907/slr.v9i1.480BIT by BIT: Regulation of Highly Capable AI Through the Remodelling of Bilateral Investment Treaties
https://journal.strathmore.edu/index.php/lawreview/article/view/495
<p><em>This study addresses the pressing need for regulatory frameworks to govern highly capable Artificial Intelligence (AI) systems, which pose significant risks such as potential misuse to create or enhance biological threats. The research investigates the indirect role of Bilateral Investment Treaties (BITs) in regulating highly capable AI, particularly focusing on redesigning BIT clauses in light of the risks associated with the technology. Through qualitative research and examination of BIT clauses, the study finds that while current BITs do not explicitly address the risks posed by highly capable AI, there is potential for redesigning BIT provisions to do so by: i) amending the definition of ‘investment’ to explicitly include data centres, which play a significant role in the development of highly capable AI, and ii) broadening the scope of scenarios where police powers can be exercised to include AI risks. This study subsequently invites further research on the implementation of the proposed redesigned BITs to mitigate the risks associated with highly capable AI. </em></p>Esther Omanga
Copyright (c) 2024 Strathmore Law Review
2024-12-192024-12-1991376210.52907/slr.v9i1.495Using a Sledgehammer to Crack a Nut? Kenya’s Approach to the Detention of Asylum Seekers and Refugees in Prisons and Police Stations
https://journal.strathmore.edu/index.php/lawreview/article/view/496
<p><em>Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides that every person has the right to liberty and security of person. This right extends to asylum seekers and refugees and requires that they are not subjected to arbitrary detention such as detention that is disproportionate. In Kenya, the detention of asylum seekers and refugees is guided by Section 2 of the Refugees Act and Sections 4 and 12(3)(g) of the Persons Deprived of Liberty Act. These provisions provide for the administrative detention of asylum seekers and refugees in carceral institutions such as prisons and police stations. Using doctrinal analysis and qualitative research, this paper argues that this detention approach, which pursues administrative detention of asylum seekers and refugees through carceral facilities, is disproportionate. This is because the detriment to the right to liberty of asylum seekers and refugees outweighs the administrative benefits to be achieved by such detention. By being disproportionate, this approach contravenes Kenya’s international obligations under the ICCPR. To resolve this, this paper recommends the adoption of a detention approach that is more likely to be proportionate by eliminating the use of carceral institutions in the detention of asylum seekers and refugees.</em></p>Marie Iradukunda
Copyright (c) 2024 Strathmore Law Review
2024-12-192024-12-1991639610.52907/slr.v9i1.496Double Invisibility: Realising the Right to Vote for Persons with Intellectual Disabilities in Kenya
https://journal.strathmore.edu/index.php/lawreview/article/view/497
<p><em>The right to vote is plausibly one of the most fundamental rights held by a citizen. It upholds the notion of equal citizenship and is intertwined with personal dignity. Historically, PWIDs have been denied their voting rights on the grounds that their disability impairs their ability to make rational decisions. The concept of making independent political judgments is fundamental to democracy; thus, if one is dependent on others to vote, they may become susceptible to undue influence or electoral fraud ultimately undermining the legitimacy of elections. Although reasonable, this perspective overlooks the unique demands of PWIDs who deserve an equal right to vote. The Constitution of Kenya recognises every citizen’s voting rights without unreasonable limitations. Despite this, PWIDs still encounter restrictions which stem from a lack of understanding of their unique demands. The imposition of blanket restrictions, such as those related to ‘unsound mind’, lack clear assessment criteria for voting purposes. This leads to uncertainty and misconceptions that PWIDs cannot make informed voting decisions. Through the relational personhood concept, this paper aims to demonstrate that PWIDs are not of unsound mind, but in the absence of good communication and require support to vote. It suggests the provision of reasonable accommodation to resolve the limitations encountered by PWIDs in Kenya.</em></p>Valentine Kaburu
Copyright (c) 2024 Strathmore Law Review
2024-12-192024-12-19919712710.52907/slr.v9i1.497Compulsory Licensing for Pharmaceutical Access in East Africa: The Challenge of Kenya's Failure to Adopt Article 31bis of the TRIPS Agreement
https://journal.strathmore.edu/index.php/lawreview/article/view/498
<p><em>Sub-Saharan Africa, including East Africa, grapples with profound public health challenges exacerbated by limited access to pharmaceuticals. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), enacted in 1995, introduced patent rights for pharmaceuticals, restricting generic production. Even so, Article 31 of the TRIPS Agreement permits compulsory licensing to facilitate cheaper generic versions, but this is underutilised by smaller economies like those in the East African Community (EAC) due to economic constraints. To help address this challenge, Article 31bis allows countries in a Regional Trade Agreement (RTA) to pool demand and import medicines collectively, thus boosting economies of scale. It also permits local manufacturing and re-export of pharmaceuticals within the RTA. The EAC qualifies for this mechanism, but many of its members lack the implementation legislation required to use the system. This paper focuses on the implications of Kenya’s lack of such implementing legislation to medicine accessibility in the EAC. This is because it is well positioned, given its growing pharmaceutical sector, to potentially become a regional hub for medicine production and to attract foreign supplies. Although creating such legislation will not solve all the challenges around the usage of compulsory licenses, its creation is important to ensure the system is available to the EAC in its aspiration to increase the accessibility of medicines.</em></p>Vicky Miriti
Copyright (c) 2024 Strathmore Law Review
2024-12-192024-12-199112916510.52907/slr.v9i1.498Foreword
https://journal.strathmore.edu/index.php/lawreview/article/view/494
Dr. Lynette Osiemo
Copyright (c) 2024 Strathmore Law Review
2024-12-192024-12-19917810.52907/slr.v9i1.494Editorial
https://journal.strathmore.edu/index.php/lawreview/article/view/499
Amelia Midwa
Copyright (c) 2024 Strathmore Law Review
2024-12-192024-12-199191210.52907/slr.v9i1.499