RP-Department of Public Law

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    Implementation of the East African Community Common Market Protocol in Kenya: Case of Free Movement of Advocates
    (RJI, 2023) Magwilu, Hansen Omido
    This study examined the application of the East African Community Common Market Protocol in Kenya with particular attention to the freedom of advocates. It looked at the broad principles and objectives of the East African Community with regard to the free movement of people and labor, as well as the domestication of the East African Community Common Market Protocol provisions with regard to the free movement of labor in Kenya and the current policy frameworks for the practice of law in Kenya by legal personnel from regional East African Community members. The theoretical framework described liberal institutionalism, protectionism, and realism in addition to how these concepts apply to Kenya's adoption and execution of the East African Community Common Market Protocol. Mixed data collection techniques were used in the study. As is clear from chapter 3, the researcher specifically recruited at least 10 respondents from each of the study's target regions who were closely concerned with the topic. In this study, a case study research design was used. The results showed that the EAC Partner States do, in fact, want to achieve further integration. It is however significant to note that, the free movement of foreign advocates into Kenya in particular is currently fraught with difficulties. States being egocentric in nature, the idea of liberal institutionalism becomes a concept that states are shy to fully embrace. Skilled labor migration fills in any gaps in the labor market, and second, labor migration increases cross-border synergies among Partner States and have a large positive ripple impact on reducing poverty in the region. Therefore, it's crucial to consider regional integration in East Africa as a need rather than a choice. Kenya should push to have a fully functioning East African Law Society. Noting that the institution is meant to unite the advocates under the East African Community, it should also be used to confirm the eligibility of any advocate from any East African Community member state. The Law Society of Kenya, not the Attorney General's office, should have the authority to grant foreign advocates permission to practice law in Kenya. This is due to the fact that all attorneys, including those working for the Office of the Attorney General, are members of the Law Society of Kenya, not the other way around. In this manner, the protocol's implementation will no longer be influenced by national politics. However, the Kenyan Law Society and the Attorney General should work together to hold each other accountable and should both hold seats in the East African Law Society.
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    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.
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    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.
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    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.
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    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.
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    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.
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    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
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    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.
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    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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    Demeaning Face of Politics and Bureaucracy in Labour Movement in Kenya: A Quest for an Effective Labour Law
    (NOVUM JUS, 2022-03) Ratemo, Tom Junior
    The Constitution of Kenya, 2010, the Labour Relations Act, 2007, and the Employment Act, 2007, along with several other labour statutes, are designed to facilitate the establishment of employeremployee unions that play a significant role in safeguarding the social, political, and economic rights/interests of their registered members. Employers and employees generally need a conducive environment to perform their daily duties. Of late, however, continuous interference from political and state machineries in the running of union activities has proved to be a bedrock for regular internal disputes between the management and employees of various institutions in the country. For instance, the Kenya National Union of Teachers has accused, on several occasions, the Teachers Service Commission and politicians of sabotaging the affairs of the union. This paper, therefore, aims to evaluate the constitutional and legal framework regulating the establishment and registration of trade unions in Kenya. Besides, with the aid of judicial pronouncements, it analyses the impact of politics and bureaucracy in exercising the right to freedom of association, an essential element in the survival of trade unions in Kenya. Finally, the paper proposes measures to counter the threat posed by external parties in running trade union activities.
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    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.
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    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.
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    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.
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    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.
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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.
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    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.