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Turning Fish Soup Back Into Fish: The Wicked Problem Of African Community Land Rights
(AFE BABALOLA UNIVERSITY, 1996) Home, Robert; Kabata, Faith
Africa’s postcolonial disputes over community land rights are a “wicked” problem, not evil, but resistant to resolution. This article investigates three such disputes in Kenya (Endorois, Ogiek and Nubian community) where the African Commission and Court of Human and Peoples’ Rights have determined in the communities’ favour but the implementation is not progressing, both because of opposition by the state and the complex and long-standing nature of the cases. The legal history of colonial trust lands and recent community land legislation is discussed, the three key cases are summarized, and issues of indigenous people’s status, admissibility and respondent government discussed in relation to the UN Declarations on Rights of Indigenous Peoples (1987), Right to Development (1986), and Land Issues (2009). Practical and political aspects of implementing the determinations are examined, and recommendations proposed.
The Crime of Illicit Enrichment under International Anti-Corruption Legal Regime
(National Council of Law Reporting, 2010) kamunde, N.
A Jurisprudential Analysis of Law, Morality, and Genocide
(National Council of Law Reporting, 2010) kamunde, N.
The quest for justice has led to remarkable steps in the fight against impunity and has indeed showed the International community that perpetrators of grave violations of humanitarian law such as Genocide cannot escape with impunity. This achievement cannot however be lauded as perfect in light of the lack of commensurate developments for situation-oriented reconciliation systems such as truth justice and reconciliation mechanisms. This is so especially when a conflict is caused by a factor such as ethnicity, which is only peculiar to a specific society such as Rwanda. Post conflict societies have not fully enjoyed the triumphs of International Criminal Justice systems because their situation requires something more than punishing those who have offended the law. It goes without saying that an inquiry into the laws and the legal structures against genocide from a point of jurisprudence is imperative towards the improvement of the relevant legal systems relating to Genocide and the overall achievement of peace and co-existence among different groups.
Eligibility Criteria for Recruitment and Promotion of Civil Servants in Kenya and India: A Comparative Study
(Asia Pacific Journal of Management & Entrepreneurship Research, 2013) Ratemo, Tom Junior
Decision-making in selecting and recruiting persons to the civil service both in Kenya and India is a complex process involving conceptual, methodological, legal and practical considerations. In selecting aspirants, concerns arise about whether the eligibility criteria will produce the desired goals of the Government. One of the main problems in the recruitment and promotion systems of modern civil service both in Kenya and India is laying down proper qualifications/eligibility to suit the needs of the diverse tasks of administration. Broadly there are two types of qualifications required to recruit or promote civil servants: general qualifications, i.e., employee’s civil status, domicile, sex, age etc., and special qualifications, i.e., educational qualifications, experience, health status, etc. This study aims to broaden the understanding of various aspects considered before a person is recruited or promoted to the civil service.
Enforcement of Civil Servants’ Human Rights: An Overview
(Indian Journal of Law and Justice, 2013-03) Ratemo, Tom Junior
The universal human rights are often expressed and guaranteed by law in the form of treaties, customary international law, general principles and other sources of international law2 . Both Kenya and India are signatories to three key United Nations backed Covenants that promote human rights of civil servants and other individuals i.e., the Universal Declaration of Human Rights, 1948 [hereinafter referred to as UDHR]; the International Covenant of Economic, Social and Cultural Rights, 1966 [hereinafter referred to as ICESCR]; and the International Covenant on Civil and Political Rights, 19663 [hereinafter referred to as ICCPR] 4 . Apart from these Conventions, there are various constitutional and legal provisions both in Kenya and India that promote and protect human rights of individual in general and human rights of civil servants in particular. All these shall be comprehensively analysed in this paper. For the proper perception, this paper is divided into four parts. The first part is an introductory part while the second part deals with the concept and meaning of the terms ‘civil servant’ and ‘human rights’. The third segment incorporates constitutional and legal provisions on civil servants’ human rights while the last part is reserved for conclusions arrived at from the study
Judicial Review of Service Matters in Kenya and India: A Blessing or A Curse
(Kenya Law, 2013-04) Ratemo, Tom Junior
The new constitutional dispensation of Kenya and the Constitution of India have created an independent judiciary which is vested with among other powers, the power of judicial review to determine the legality of administrative actions and the validity of legislations1. It is therefore, the solemn duty of the judiciary to keep different organs of the State within the limits of the power conferred upon them by the Constitution by exercising power of judicial review as sentinel on the quo vive to check not only that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large2 but to also ensure that the conduct, actions or decisions of public officers conform to the Constitution and the law3.
Dismissal, Removal or Reduction in Rank of Civil Servants: Kenyan and Indian Perspective
(Indian Journal of Applied Research, 2013-10) Ratemo, Tom Junior
Both the Constitutions of Kenya and India lay down elaborate mechanisms under which a Government serv- ant may be dismissed, removed or reduced in rank from the civil post. The procedure laid down in Part Two, Chapter Thirteen of the Constitution of Kenya and Chapter One, Part XIV of the Constitution of India is basically intended to assure not only a measure of security of tenure to Government servants but also to provide certain safeguards against arbitrary dismissal or removal or reduction in rank of a Government servant. Thus, where there is an infringement of the said provisions, the orders passed by any disciplinary authority become void ab-initio and in the eye of law 'no more than a piece of waste paper'. This paper establishes various constitutional provisions in existence both in Kenya and India that are intended to safeguard civil servants from arbitrarily misuse of power by certain Government authorities.
Constitutional and Legal Dimensions on the Doctrine of Equal Pay for Equal Work: An Indian Perspective
(Rostrum's Law Review, 2014-01) Ratemo, Tom Junior
The doctrine of equal pay for equal work is a concept that has gradually evolved and has come to be recognized by a number of countries world-wide due to an increase in the instances of discriminatory pay scales for the same type of work1. Article.23 (2) of the Universal Declaration of Human Rights, 1948 debars all types of distinctions and classifications and clearly asserts that ‘everyone without any discrimination has the right to equal pay for equal work’. Similarly, Art.7 of the International Covenant on Economic, Social and Cultural Rights, Art.15 of the African Charter on Human and Peoples’ Rights, the International Labour Organisation Declaration on Fundamental Principles and Rights at Work, Art.11 of the Convention on the Elimination of All Forms of Discrimination against Women, S.59 of the Hungarian Labour Code, Clause 2 of S.111 of Czechoslovak Code, S.67 of the Bulgarian Code, S.40 of the Code of German Democratic Republic, Para 2 of S.33 of the Rumanian Code, Art.2 of the Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, etc., are other best international instruments that uphold the doctrine of equal pay for equal work. However, even after six decades of independence and with the existence of the international instruments that promote the principle of equal pay for equal work, and more importantly with the world’s biggest Constitution, India still lacks a comprehensive and transparent wage policy for men and women in all the sectors of the economy2. In this paper, a detailed analysis of various constitutional and legal provisions including judicial pronouncements relating to the doctrine of ‘equal pay for equal work’ shall be undertaken. For proper perception, this paper is divided into five parts. The first part is an introductory part while the second part deals with the constitutional and legal provisions in existence in India relating to the doctrine. The third segment explains the applicability of the doctrine while the fourth part deals with the burden of proof of the doctrine. The last part is reserved for conclusions arrived at from the study.
Jurisdiction of Administrative Tribunals in Settlement of Disputes Over Service Matters: A Factual Analysis
(International Journal of Legal Studies and Research, 2014-03) Ratemo, Tom Junior
The persons employed in government institutions are generally considered the most privileged and trouble free in the society. But as a matter of fact, government employees face diverse problems in their places of work just as others do. As individual employees, they may have certain grievances, complaints regarding their service matters against the government. All such problems, conflicts, grievances etc. need to be looked into expeditiously and with justice, objectivity and fair play in order to ensure smooth running of government services and/or promote socio-economic development of the State. The Government of India has thus set up appropriate institutional structures in the form of Administrative Tribunals not only to function as the final appellate authority in respect of government orders inflicting major penalties of dismissal, removal from service and reduction in rank of government servants, but also to save the courts from an avalanche of writ petitions and appeals in service matters. This paper explores a number of issues pertaining to the merits and demerits, status, jurisdiction and procedure of the Administrative Tribunals in settlement of disputes over service matters.
A Legal Perspective of Carbon Rights and Benefit Sharing under REDD+: A Conceptual Framework and Examples from Cambodia and Kenya
(CCLR, 2015-01) Chapman, Sophie; Wilder, Martijn; Millar, Ilona; Dibley, Arjuna; Yeang, Donal; Heffernan, Joe; Sherchan, Kirtiman; Maguire, Rowena; Kago, Caroline Wanjiku; Kamunde-Aquino, Nelly; Kiguatha, Leah; Idun, Yvonne Nana Afua; Doshi, Mona; Engbring, Gretchen; Dooley, Elizabeth
This article discusses two key issues in REDD+ design and implementation at the national level – carbon rights, and benefit sharing. Both carbon rights and benefit sharing can be understood as new legal concepts (although they build on existing law), and as legal concepts they offer a framework for addressing related areas of REDD+ policy. Many countries are currently considering how to manage carbon rights and benefit sharing issues, including Cambodia and Kenya. Both of these countries host existing forest carbon projects and are also in the process of designing national REDD+ programmes. This article uses a conceptual framework for carbon rights and benefit sharing derived from legal analysis to consider the cases of both Cambodia and Kenya, and also includes a general discussion of the challenges countries might encounter when considering how to manage carbon rights and benefit sharing in the context of REDD+ implementation.
Technology Transfer for Climate Change Mitigation: A Perspective from Kenya
(The African Journal of Information and Communication (AJIC), 2016) Mwaura, Caroline
The impact of climate change continues to be experienced worldwide. Treaties such as the UN Framework Convention on Climate Change (UNFCCC) of 1992 and the UNFCCC Paris Agreement of 2015 demonstrate the value that UN Member States attach to reaching consensus on climate change mitigation steps. In this thematic report, the author looks at the issue of climate change mitigation technology transfer (TT) from a Kenyan perspective, specifically with reference to Kenya’s National Climate Change Action Plan (NCCAP), and to provisions in Kenya’s patent law that are relevant to TT licensing agreements between foreign and Kenyan entities.
Striking the Right Balance Between the Interests of the Foreign Investors and the Host State – A Case Study of the Tanzania-Germany BIT 50 Years After Its Conclusion
(Edinburgh University Press, 2017) Milej, Tomasz P.
Human Rights Protection by International Courts – What Role for the East African Court of Justice?
(Edinburgh University Press, 2018) Milej, Tomasz P.
The present article argues that the East African Court of Justice (EACJ), although originally not conceived as a human rights body, has a role to play as a protector of human rights in the East African region. It underlines the contribution the EACJ could make in spelling out jurisprudential standards for human rights protection in the specific regional context and suggests enhancing judicial dialogue between the EACJ and increasingly assertive national courts of the East African Community Partner States. Drawing upon the existing jurisprudence of the EACJ, the article also discusses the treaty basis for the Court's human rights jurisdiction, the standard of review, the various doctrines the Court uses, the Court's accessibility, the time limits for individual references, the burden of proof and the nature of the EACJ's judgments.
Evaluation of the Demeaning Face of COVID-19 on Labour Relations: a New Challenge for Kenya’s Burgeoning Democracy
(Italian Labour Law e-Journal, 2020) Junior, Ratemo Tom
On March 11th 2020, the World Health Organization was forced to declare the novel coronavirus disease a global pandemic after a surge in reported cases of the disease outside China. The disease has adversely affected, inter alia, the economy and healthcare system in several countries including Kenya. To eradicate the pandemic, the Kenyan Government introduced numerous measures designed to control the infection rate which, inter alia, included closing of non-essential businesses and learning centers, restriction of people movements between 7.00pm and 5.00am and implementation of social distancing rules. These measures have compelled several public and private business entities to either shut or scale down their level of operations in order to remain afloat amid the pandemic. The existing Kenyan labour laws neither incorporate provisions on crisis response nor address the issue of employee safety while working from home. This article therefore seeks to delineate the legal implications of the disease on labour relations in Kenya. Besides, a discussion on the shortcomings of the existing labour laws in safeguarding employers and employees’ rights to i.e., health, safety, leave and termination amid the pandemic is undertaken. It finally proposes measures to be undertaken to fix the loopholes in such laws.
Intensifying Legal Protection against Human Rights Violations in the Covid-19 Era: A Case Study of Kenya, Uganda and Tanzania
(Juta and Company (Pty) Ltd, 2020) Ratemo, Junior Tom
The coronavirus pandemic has, since its outbreak in late 2019, not only caused a global health care crisis but has also had a negative impact on the exercise of social, economic, cultural and political rights. Vulnerable and marginalised groups in Kenya, Uganda and Tanzania are among the worst affected. To respond to the crisis, the three East African countries imposed several measures aimed at curtailing the spread of the disease, which included a mandatory 14 days of self-quarantine for persons arriving from abroad; the closure of borders, religious and educational institutions; the suspension of international and domestic flights; the suspension of public court proceedings and gatherings; the imposition of a dusk to dawn curfew; and the restriction of people's movement in certain areas. All these measures in one way or another affect the exercise of fundamental human rights. In the past few months, the number of reported cases of human rights violations has been escalating. This article seeks to highlight the three states' practice of avoiding the 'naming, shaming and prosecuting' of perpetrators of human rights violations during the coronavirus pandemic. It also exposes instances of human rights violations in Kenya, Uganda and Tanzania during the pandemic. In addition, the paper proposes measures to be undertaken to intensify legal protection against human rights violations during the coronavirus pandemic. Finally, the paper explores the elusive option of making the top state officials legally accountable for individual human rights violations.
International Public Policy, Corruption and Investor to State Arbitration
(ElectronicPublications.org, 2020) Kago, Caroline; Milej, Tomasz; Mwaki, Fidel; Mwangi, Saweria
Taking three arbitral awards as case studies: World Duty Free Company v. Kenya, Cortec Mining v. Kenya and Vladislav Kim & 11 Others v. Uzbekistan, the present paper addresses the issue of protection by International Arbitral Tribunals of investors who obtained contracts or licenses by fraud. While in both Kenyan cases, the Arbitral Tribunals deny such protection, in the Kim case the several objections against the Tribunal’s jurisdiction are rejected, as the Tribunal does not see it as established that fraudulent behaviour actually took place. There is no question that the international law condemns corrupt acts, the consequences it attaches to the same are far less certain. And the bribes are not only given but also taken or even extorted. Accordingly, the tribunals must resolve a clash of principles. On the one hand, the investor whose hands are tainted with corruption should not be allowed to obtain protection by the Tribunal. But on the other hand, also the State should not benefit from the corrupt acts of its agents. This tension is examined through the lens of multilateral and bilateral treaty frameworks, in particular, the ‘in accordance with’ clauses in the Bilateral Investment Treaties, customary international law and the general principles of law. The paper posits a need for a fair apportionment of responsibility for the corrupt acts to each party, arguing that it is better achieved while deciding the case on the merits than rejecting it as inadmissible.
African and European Legal Regimes for Intra-Continental Migration: Towards an Afro- European Integration Scheme
(Routledge, 2020-05) Milej, Tomasz
The chapter analyses the legal instruments regulating migration within Africa and within the EU, their historical evolution, the contents of the free movement of people guarantees and the methods of their implementation. On this basis, it advocates for an Afro-European integration scheme which would break with the prevailing identity narratives stigmatising migrants. Borrowing from the best practices in Africa and EU, such a scheme - unlike the current Cotonou regime - should adapt a rule-based approach linking migration with trade, conferring individual rights enforceable in a court of law and encompassing lower-skilled and higher-skilled workers.
Adding Value for Avocados Grown in Kenya through Geographical Indications: a Legal Perspective
(Oxford University, 2021) Mwaura, Caroline
Avocado production in Kenya serves both subsistence and commercial needs. Recent years have seen increased consumption of the fruit both in and outside Kenya. In fact, avocados are Kenya’s most exported fruits.1 Kenya is Africa’s top avocado exporter.2 It is the world’s third largest producer of avocados.3 Avocados are a well-known food item (they are added to meals such as githeri and feature in sandwiches and salads) that is also used in the cosmetic industry. The fruit’s high fat composition has been associated with health benefits. In 2020, high export figures for Kenya’s avocados have been reported4 , even as it has emerged that just ten per cent of the country’s avocado produce is exported.5 Although this study did not find information about the distribution of the remaining ninety per cent of the produce, local consumption and losses likely account for the remainder or part thereof. The relatively low export percentage is a source of concern for various reasons. Among them is the reduced earning potential for farmers. This is because, in addition to local sales, exporting the produce earns foreign exchange which— in turn—boosts revenue for farmers. It also expands the market available for produce, thus assisting in managing the risk that is inherent in relying solely on the domestic market. Smallholder farmers currently dominate avocado production in Kenya.6 This article will highlight the issues that this situation has generated. Among them is the investment capacity by farmers to enhance value in the crop. An important input in production for commercial purposes is the marketing of a product. In turn, marketing is primarily driven by a product’s identity and identifier(s), including a product’s name and reputation in an industry. It is on this basis that this article explores the possible role that geographical indications could have in enhancing revenue generation for avocado farmers in Kenya
The Right to Privacy under the Constitution of Kenya and the Criminalisation of Consensual Sex between Same-Sex Adults
(AFRICAN HUMAN RIGHTS LAW JOURNAL, 2021) Koske, Nicole Treyson
This article argues that the provisions of the Kenyan Penal Code (sections 162 and 165) criminalising consensual sex between partners of the same sex limit the right to privacy enshrined in article 31 of the Constitution of Kenya of 2010. This limitation is not justifiable according to the Bill of Rights limitation clause in article 24 of the Constitution. Article 45(2) of the Constitution, which provides for a right to ‘marry a person of the opposite sex’, also does not justify this limitation. Embracing the idea of an open and democratic society, the Constitution precludes the state from imposing upon the individual moral choices, provided that those choices do not harm others. Therefore, the decision whether or not consensual sex is moral must be left to the individual concerned. By refusing to declare sections 162 and 165 unconstitutional in 2019, the High Court of Kenya misinterpreted the Constitution and consequently failed in its mandate to uphold the right to privacy of homosexual persons in Kenya.
Reclaiming African Agency: the Right to Regulate, the Investor-State Dispute Settlement and the “Africanisation” of International Investment Law
(The Hague: TMC Asser Press, 2021-05) Milej, Tomasz
The paper explores the idea of “Africanisation” of the International Investment Law based on some recent instruments adopted by African States: The Pan-African Investment Code (PAIC), the Economic Community of West African States Common Investment Code (ECOWIC), the Southern African Development Community Protocol on Finance and Investment (SADC FIP) Annex 1 and the Morocco-Nigeria BIT. Taking the Right to Regulate as a starting point, it traces the historical power imbalances, bias of the existing instruments towards large investors, flaws of the ISDS system and the regulatory chill. Putting the analysed instruments in the perspective of global trends, the paper outlines three dimensions of Africanisation: the reform of the substance of investors’ guarantees, their interpretation and enforcement, and – most importantly – the restoration of African agency.

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