African Human Rights Yearbook / Annuaire Africain des Droits de l’Homme
Kenya’s food insecurity hinders progress towards sustainable development. While the Kenyan Consti... more Kenya’s food insecurity hinders progress towards sustainable development. While the Kenyan Constitution guarantees every person the right to adequate food of acceptable quality, it also prohibits environmental and health endangerment. Whether and how to invest in genetically modified organism (GMO) technology as an alternative food production method is important. In this context, scientists should not be denied the opportunity of harmonising the tension between environmental safety and food security while upholding sustainable development. Scientifically, GMO crops are sustainable, notwithstanding the African Union’s rigid social and political setting. However, each state’s role in providing sufficient resources and law enforcement personnel is crucial. A GMO regulatory system addresses environmental safety and human health, explicitly adopting thedevelopmental risk notion. Kenya’s 2012 cabinet ban on GMO foods derived from the Séralini Report which erroneously claimed that GM maize...
International Journal of Criminology and Sociology
The International Criminal Court’s legal aid scheme pays court-appointed victims’ lawyers. Yet, w... more The International Criminal Court’s legal aid scheme pays court-appointed victims’ lawyers. Yet, whether ICC or domestic legal proceedings can provide better victim satisfaction goes beyond the question of whether external or internal legal representation is more effective in protecting victims’ rights. In circumstances where guilt is difficult to prove, as in the ICC’s Kenya cases, victims’ interests may be better satisfied by pursuing compensation from local courts. This paper therefore argues that post-election violence victims’ interests may be satisfied by legal aid to support domestic compensation claims. Although numerous victims participated in the Kenya cases, non-confirmation of charges against the former Police Commissioner, withdrawal of the Muthaura and Kenyatta case, and declining to conduct reparation hearings after vacating charges in the Ruto and Sang case, culminated in widespread victim dissatisfaction. The paper contrasts the victims’ plight in the Kenya cases wit...
Citing comparative US, UK and European jurisprudence, this article proposes a pre-inchoate offenc... more Citing comparative US, UK and European jurisprudence, this article proposes a pre-inchoate offence to punish terror suspects at the African Court of Justice and Human Rights. It traces the Kenya government’s twenty-first-century responses to distorted jihad fundamentalism culminating in the current escalating pogroms. Coercive executive counterterrorism responses make exceptions to universal human rights enshrined under liberal democratic constitutions and international instruments. Yet the legality principle constrains the use of pre-inchoate offences. Hence civil society’s resistance delayed the enactment of Kenya’s Prevention of Terrorism Act. Moreover, the Constitutional Court subsequently struck out as ‘vague and ambiguous’ the Security Law (Amendment) Act’s substantive provision which ‘presumed criminal intent for encouraging terror’. Procedurally, another dilemma arises. This concerns whether it is possible for an international terror suspect to have a fair domestic trial. Al...
Kenya’s counter-terrorism measures, following entry into Somalia, relocated refugees to designate... more Kenya’s counter-terrorism measures, following entry into Somalia, relocated refugees to designated camps. However, by violating a refugee’s freedom of movement, mass relocation contravenes the African Charter on Human and Peoples’ Rights (ACHPR). Regional jurisprudence informed the Kenyan High Court’s Kituo cha Sheria v Attorney General decision holding that mass refugee relocation is indeed refoulement. It necessarily discriminates, punishes disproportionately, and may amount to a ‘failure to protect’ refugees against torture, a crime against humanity. However, the United Nations Convention Relating to the Status of Refugees (Refugees Convention) merely prohibits hosts from returning escapees to countries where they are targeted for persecution. Conversely, refugees who are either reasonably regarded as threatening national security or reasonably suspected of serious crimes are deemed to ‘waive’ their non-refoulement right. Nonetheless, the court’s legal moralism insisted that stat...
A CRITIQUE OF WAMBUA V WAMBUA “Basic education encompasses the broadest possible sense of learnin... more A CRITIQUE OF WAMBUA V WAMBUA “Basic education encompasses the broadest possible sense of learning at any stage of life.” Students who belong to an educated elite parentage set high educational standards. They are thus “entitled to more resources to achieve a higher education.” This was stated in a family dispute between Diana Ndele Wambua Versus Paul Makau Wambua. Invoking the Children’s Act 2001 the Kenyan courts recognized the existence of special circumstances with regard to the welfare of a 23-year old medical student. She declined to undertake a public sponsored general Arts degree. Her estranged father’s consent was instead compelled to secure her enrollment alongside private medical students using his employer’s bursary facility. An adult student’s choice to benefi t from public funding is justifi able under Ronald Dworkin’s challenge model. Diana’s theory of welfare assumes that resources should be distributed so that people are not only equal in the enjoyment they take dir...
African Yearbook on International Humanitarian Law
The International Criminal Court (ICC) is primarily mandated to punish persons bearing the greate... more The International Criminal Court (ICC) is primarily mandated to punish persons bearing the greatest responsibility for the worst crimes known to mankind. Additionally, its victim reparations are contingent on conviction; because of this, the Rome Statute’s retributive goal is compounded with the inquisitorial function of seeking the truth by realising the victim’s entitlement to participate at appropriate stages throughout the proceedings. However, the suspect’s due process rights must remain protected. While the Court balances these procedural functions, victims’ representatives determine which victims are members of the appropriate constituency. This paper’s theoretical framework shows how victims are vulnerable to their representative’s claims. Therefore, the question arises as to whether external or internal legal representation will be more effective for victims. This determines how victims’ voices may best be elicited. Some victimologists contend that the exclusion of an exter...
African Human Rights Yearbook / Annuaire Africain des Droits de l’Homme
Kenya’s food insecurity hinders progress towards sustainable development. While the Kenyan Consti... more Kenya’s food insecurity hinders progress towards sustainable development. While the Kenyan Constitution guarantees every person the right to adequate food of acceptable quality, it also prohibits environmental and health endangerment. Whether and how to invest in genetically modified organism (GMO) technology as an alternative food production method is important. In this context, scientists should not be denied the opportunity of harmonising the tension between environmental safety and food security while upholding sustainable development. Scientifically, GMO crops are sustainable, notwithstanding the African Union’s rigid social and political setting. However, each state’s role in providing sufficient resources and law enforcement personnel is crucial. A GMO regulatory system addresses environmental safety and human health, explicitly adopting thedevelopmental risk notion. Kenya’s 2012 cabinet ban on GMO foods derived from the Séralini Report which erroneously claimed that GM maize...
International Journal of Criminology and Sociology
The International Criminal Court’s legal aid scheme pays court-appointed victims’ lawyers. Yet, w... more The International Criminal Court’s legal aid scheme pays court-appointed victims’ lawyers. Yet, whether ICC or domestic legal proceedings can provide better victim satisfaction goes beyond the question of whether external or internal legal representation is more effective in protecting victims’ rights. In circumstances where guilt is difficult to prove, as in the ICC’s Kenya cases, victims’ interests may be better satisfied by pursuing compensation from local courts. This paper therefore argues that post-election violence victims’ interests may be satisfied by legal aid to support domestic compensation claims. Although numerous victims participated in the Kenya cases, non-confirmation of charges against the former Police Commissioner, withdrawal of the Muthaura and Kenyatta case, and declining to conduct reparation hearings after vacating charges in the Ruto and Sang case, culminated in widespread victim dissatisfaction. The paper contrasts the victims’ plight in the Kenya cases wit...
Citing comparative US, UK and European jurisprudence, this article proposes a pre-inchoate offenc... more Citing comparative US, UK and European jurisprudence, this article proposes a pre-inchoate offence to punish terror suspects at the African Court of Justice and Human Rights. It traces the Kenya government’s twenty-first-century responses to distorted jihad fundamentalism culminating in the current escalating pogroms. Coercive executive counterterrorism responses make exceptions to universal human rights enshrined under liberal democratic constitutions and international instruments. Yet the legality principle constrains the use of pre-inchoate offences. Hence civil society’s resistance delayed the enactment of Kenya’s Prevention of Terrorism Act. Moreover, the Constitutional Court subsequently struck out as ‘vague and ambiguous’ the Security Law (Amendment) Act’s substantive provision which ‘presumed criminal intent for encouraging terror’. Procedurally, another dilemma arises. This concerns whether it is possible for an international terror suspect to have a fair domestic trial. Al...
Kenya’s counter-terrorism measures, following entry into Somalia, relocated refugees to designate... more Kenya’s counter-terrorism measures, following entry into Somalia, relocated refugees to designated camps. However, by violating a refugee’s freedom of movement, mass relocation contravenes the African Charter on Human and Peoples’ Rights (ACHPR). Regional jurisprudence informed the Kenyan High Court’s Kituo cha Sheria v Attorney General decision holding that mass refugee relocation is indeed refoulement. It necessarily discriminates, punishes disproportionately, and may amount to a ‘failure to protect’ refugees against torture, a crime against humanity. However, the United Nations Convention Relating to the Status of Refugees (Refugees Convention) merely prohibits hosts from returning escapees to countries where they are targeted for persecution. Conversely, refugees who are either reasonably regarded as threatening national security or reasonably suspected of serious crimes are deemed to ‘waive’ their non-refoulement right. Nonetheless, the court’s legal moralism insisted that stat...
A CRITIQUE OF WAMBUA V WAMBUA “Basic education encompasses the broadest possible sense of learnin... more A CRITIQUE OF WAMBUA V WAMBUA “Basic education encompasses the broadest possible sense of learning at any stage of life.” Students who belong to an educated elite parentage set high educational standards. They are thus “entitled to more resources to achieve a higher education.” This was stated in a family dispute between Diana Ndele Wambua Versus Paul Makau Wambua. Invoking the Children’s Act 2001 the Kenyan courts recognized the existence of special circumstances with regard to the welfare of a 23-year old medical student. She declined to undertake a public sponsored general Arts degree. Her estranged father’s consent was instead compelled to secure her enrollment alongside private medical students using his employer’s bursary facility. An adult student’s choice to benefi t from public funding is justifi able under Ronald Dworkin’s challenge model. Diana’s theory of welfare assumes that resources should be distributed so that people are not only equal in the enjoyment they take dir...
African Yearbook on International Humanitarian Law
The International Criminal Court (ICC) is primarily mandated to punish persons bearing the greate... more The International Criminal Court (ICC) is primarily mandated to punish persons bearing the greatest responsibility for the worst crimes known to mankind. Additionally, its victim reparations are contingent on conviction; because of this, the Rome Statute’s retributive goal is compounded with the inquisitorial function of seeking the truth by realising the victim’s entitlement to participate at appropriate stages throughout the proceedings. However, the suspect’s due process rights must remain protected. While the Court balances these procedural functions, victims’ representatives determine which victims are members of the appropriate constituency. This paper’s theoretical framework shows how victims are vulnerable to their representative’s claims. Therefore, the question arises as to whether external or internal legal representation will be more effective for victims. This determines how victims’ voices may best be elicited. Some victimologists contend that the exclusion of an exter...
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