Strathmore Law Review <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> en-US (Collins Okoh) (Peace Kioko) Mon, 19 Jul 2021 19:05:37 +0300 OJS 60 Editorial Cecil Yongo, Imani Jaoko Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 Foreword Luis Franceschi Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 Implementation Remains the Achilles Heel of the African Union: A Study of the African Peer-Review Mechanism (APRM) <p>The potential power of Africa is undisputed. The continent is home to a large, young population and is a potential economic powerhouse in the world. In order to realise its full potential, the African Union (AU) must guide the continent. The AU, has however, repeatedly faltered in this regard. The implementation mechanisms of the AU seem to be its Achilles’ heel. The AU suffers no shortage of well-formulated policies; instead it suffers from a chronic inability to follow up on these policies. This paper maps the formation of the AU, the promise it held and the factors that limit the ability of the AU to implement its programs and policies. The paper then briefly examines the African Peer Review Mechanism (APRM) looking at the problems of implementation it has faced and how these may be remedied.</p> Imani Jaoko Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 Transitional Justice as a Path to Distributive Justice: A Jurisprudential and Legal Case for Land Restitution in Kenya <p>Rawls’ theory of distributive justice may serve as a useful model in conceptualizing a model of the ideal political economy – one that seeks to keep inequalities that have come about as a result of natural accident to a minimum. Moreover, his principles of justice can be used correctively, to address institutional inequalities that have the effect of entrenching social dislocation. Kenya has, over the decades up until now, been riven by injustices relating to land. This has led to the development of a small cluster of landed elites while the majority of citizens are effectively denied land access rights. This is regardless of the fact that most of the land so acquired by the former was acquired irregularly and with disregard of bona fide title of the original occupants. The concept and process of transitional justice may be viewed as the vehicle toward attaining corrective justice and accountability for offences committed in times of national crisis as a restorative measure.</p> Claude Kamau Copyright (c) 2021 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 Public Pressure, Temptation of Power and Unconstitutional Actions in the War Against Terrorism in Kenya: Suggesting a Link <p>The reaction of the government in Kenya, like many other governments around the world, to terrorist attacks has generally been to strengthen existing laws and enact novel laws, especially those that aid the state’s intelligence-gathering capabilities, along with those that are punitive. In some cases, even in Kenya, States have taken, or have attempted to take, extra-Constitutional and unconstitutional actions. This is the approach that this paper characterises as arising from ‘temptation of power’, and in that regard, this interdisciplinary paper is—through an analysis of scholarship in law, sociology and information/ communication—an attempt to investigate the origin, results and wisdom of such an approach in the war against terror, its effect on the rule of law and minority rights in society; and propose why and how it can be avoided.</p> Cecil Yongo Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 The Justiciability of the Right to Development in Ghana: Mirage or Possibility? <p>An analysis of the debate on the right to development (RTD) suggests that the right is pursued as a solution to solve the problems of poverty and underdevelopment. Thus, this study seeks to determine if at the national level in Ghana, the right to development is a right which is opposable by right-holders against the duty bearers. The Study adopted the Black Letter Law approach in analysing the legal effect of relevant law. This study shows that the African Charter is the only multinational treaty that makes RTD legally enforceable. It also shows that Ghana, which is dualist, has not ratified the African Charter. It is however argued that the Ghanaian courts may enforce RTD either as international law or as a human right implicitly guaranteed under the 1992 Constitution of Ghana. This conclusion supports the notion that development is a human rights concern. It further illustrates that the national courts of African countries are uniquely equipped to guarantee the protection of human rights and the development of the African people.</p> Asare Larbi Paa Kwame Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 Analysing the Future of International Criminal Justice in Africa: A Focus on the ICC <p>The International Criminal Court has generally a bad reputation in the African continent as a whole with hostile assertions by the African Union, that the court is nothing but a political tool for the powerful. The Court, plagued with numerous difficulties, has come under pressure to perform, with some doubting its viability. Created by the Rome Statute, and the parties therein governed by general treaty law, enforcement mechanisms of the court have been unsatisfactory at best and this has led to questions being asked as to its survival. There exists a pool of divergent views, in regard to the African Union and the International Criminal Court, in many of the crucial areas of international criminal justice. This paper seeks to find out just how true is the claim that the ICC is ‘dead’ is, and the implications of this in the future of the continent as regards international criminal justice. How important is it for us to preserve international criminal justice? Just how much of a role do states play in this revered area of law? Is its legal viability coming to an unfortunate premature end? What does this mean, then, for the victims of mass atrocities? This paper seeks to show an interplay of the role of states and politics in international criminal justice, and determine then, whether there exists any bright future for this area of law in Africa.</p> Emily Ngolo Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 Fragmentation in a Bid to Defragment <p>Fragmentation is a practical tool suggested in this paper to bring about societal inclusion. Indeed, this is not a novel idea. Kenya has joined the league of practitioners of decentralisation, a system of governance that involves fragmentation. One of the objectives is to achieve national unity. The evil observed today is that decentralisation has brought about broadened separation. The aim of this paper is to highlight how decentralisation as a practical mechanism ought to unite. This is a possible solution to the challenge of inclusion. The end sought is a better society where unity, peace and justice abound. The paper will tackle three spheres of inclusion: social, political and economic which are dealt with separately but in essence they are interlinked with each other. In each of these areas, the paper will illustrate how fragmentation has achieved inclusion.</p> Melissa Mungai Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 Application of African Customary Law: Tracing its Degradation and Analysing the Challenges it Confronts <p>Historically, African customary law has occupied the lower rungs of the legal ladder, often being set aside for more formal laws. This is primarily due to the introduction of western and religious legal systems through the exploration of western nations into Africa, missionary activity and, subsequently, colonisation. However, African countries – including Kenya – are making an effort to give due recognition to customary law. This paper discusses the steady degradation of customary law from the colonial period to the promulgation of the Constitution of Kenya 2010 where there are attempts to resuscitate its application, it also discusses the challenges that the courts may face in this application of customary law today and possible solutions to these challenges.</p> Lisa Owino Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 The Legitimacy of Indigenous Intellectual Property Rights’ claims <p>The notions of indigenous peoples, indigenous knowledge, and heritage and culture have acquired wide usage in international debates on sustainable development and intellectual property protection since the turn of the 20th century. This paper, through an examination of the concept of intellectual property and its intersection with culture and heritage, elucidates the nature and scope of indigenous intellectual property rights as represented by traditional knowledge, traditional cultural expressions and genetic resources. This paper, through a review of the interface between indigenous knowledge systems and the intellectual property law regime, illustrates the limitations of conventional intellectual property rights systems i.e.: copyright, patent, trade secrets and trademark in providing adequate recognition and protection for indigenous intellectual property rights. It also posits that the establishment of a sui generis system of protection offers a plausible solution to the inadequacy of the existing regimes of protection. This paper ultimately seeks to illustrate indigenous people’s legitimate rights to control, access and utilize in any way, including restricting others’ access to, knowledge or information that derives from their unique cultural histories, expressions, practices and contexts, towards the creation of a better society.</p> Wanjiku Karanja Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 Terrorism as a form of Imperialism: A Case for the Rule of Law <p>The war on terror is indeed justified. Terror attacks have resulted in the deaths of many innocent people around the world. Every nation in fact has a duty to protect her citizens from terror attacks and put up measures to prevent and punish terrorists. However, the government also has a duty to uphold the rule of law at all times despite the gravity of the attacks. This paper disputes arguments that terrorism is so novel and so grave that the rule of law can be sacrificed in order to deal with it. This position fails since terrorism is not a novel challenge and further because terrorism manifests itself as a form of imperialism, which is a challenge that has several times been dealt with in world history. Terrorism does not change the normal rules of criminal procedure and thus the rule of law should not be suspended in the name of counter-terrorism.</p> Brian Kimari Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300 A Perspective on the Doctrine of the Separation of Powers Based on the Response to Court Orders in Kenya <p>The Constitution of Kenya provides that the sovereign power of the people shall be vested in the executive, the legislature and the judiciary, reflecting the democratic ideal that if power is concentrated in the hands of a few, it is prone to misuse. This provision aims to safeguard against arbitrary and capricious governance and the abuse of power. In the new constitutional order, there has been instances of tensions between the judiciary and the other arms of government. Unfortunate incidents of members of the Legislature referring to court orders as stupid and idiotic with blatant disregard for court orders have been witnessed. In a government whose legitimacy is vindicated by a court, it is ironical to observe a selective attitude towards respecting subsequent court orders. This paper aims to consider the disregard of court orders against the backdrop of the separation of powers and other relevant principles of constitutionalism.</p> Emmanuel Kibet, Kimberly Wangeci Copyright (c) 2016 Strathmore Law Review Fri, 01 Jan 2016 00:00:00 +0300