Socio-Economic and Cultural Rights under the 2010 Constitution of Kenya: Justiciable or Aspirational?

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

Socio-Economic and Cultural Rights under the 2010 Constitution of Kenya: Justiciable or Aspirational?

Authors Obat Joseph Wasonga, PLO Lumumba

ISSN: 2521-2613
Affiliations: Lawyer at Lumumba & Lumumba Advocates, Nairobi; Director/Chief Executive and Secretary, Kenya School of Law Board
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 118 – 139

Abstract

Economic, social and cultural rights are human legal entitlements relating to the workplace, social security, family life, environment, participation in the cultural life, and access to housing, food, water, health care and education. International human rights instruments are grounded on the fact that particular entities, such as States, have a duty to protect, promote, and fulfil such rights. On that basis, the holders of the rights may correspondingly make claims on the duty-bearers. Therefore, an evaluation of the fulfilment of human rights should examine the extent of the obligation of the dutybearers, as well as the extent of enjoyment of the legal entitlements by the rights holders. This article investigates the theoretical basis for the inclusion of economic, social and cultural rights in the 2010 Constitution. It addresses the question whether the protection of such rights is an indication that the Constitution has a transformative agenda that proceeds beyond the mere guarantee of abstract equality. It also evaluates whether there is a genuine commitment to transform Kenya from a society based on socio-economic deprivation to one that is grounded on equal and equitable distribution of resources. It is in that context that the article examines the issue of justiciability of socio-economic rights under the 2010 Constitution of Kenya.

The Memorandum of Understanding on Double Taxation between Nigeria and Kenya: An Appraisal

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

The Memorandum of Understanding on Double Taxation between Nigeria and Kenya: An Appraisal

Authors MK Adebayo, SM Olokooba

ISSN: 2521-2613
Affiliations: Lecturer and Head, Department of Private and Property Law, Faculty of Law, University of Ilorin; Lecturer, Faculty of Law, University of Ilorin
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 102 – 117

Abstract

It is the practice in most States for income tax to be imposed both on worldwide income derived by residents of the country and on income derived by non-residents generated within the country. The effect of such a system is that income derived by a resident of one State from a source in another country is subjected to tax in both States. This position clearly discourages foreign investment, hence the conclusion of double taxation treaties between States. The focus of this article is, therefore, an appraisal of the memorandum of understanding (MoU) agreement on double-taxation recently entered into by Nigeria and Kenya. It argues that the MoU, if effectively implemented, will boost trade and economic development through increased revenue generation from taxation. The article elucidates on the jurisprudential basis of double taxation treaties by States and then proceeds to undertake a critical analysis of the MoU by Nigeria and Kenya.

Violations of Socio-Economic Rights in Developing States: A Case for the Recognition of the Right to Inheritance in International Human Rights Law

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

Violations of Socio-Economic Rights in Developing States: A Case for the Recognition of the Right to Inheritance in International Human Rights Law

Authors Azizat O Amoloye-Adebayo

ISSN: 2521-2613
Affiliations: Lecturer, Faculty of Law, University of Ilorin; Barrister and Solicitor of the Supreme Court of Nigeria
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 83 – 101

Abstract

This article contributes to the human rights discourse on the protection of economic, social, and cultural rights (ESCR) under international human rights law (IHRL). In a developing State’s context, such as in the case of Nigeria, lack of resource may be cited as an excuse for lack of meaningful protection of ESCR. However, this article postulates the view that some core ESCR may be realised and guaranteed not just by viewing them as obligations for States to expend financial resources to facilitate their protection, but also, and even more importantly, by requiring States to review the root causes of their violations, some of which are merely socio-cultural in nature. The socio-cultural causes of the violations of ESCR may not require utilisation of financial resources. To demonstrate that point, the article examines the issue of how States can reduce ESCR violations through dispossession and dis-entitlement to property under the inheritance legal regime, especially in developing States such as Nigeria.

Legislating Corporate Social Responsibility in Kenya’s Extractive Industry: A Case Study of the Mui Coal Mining Project

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

Legislating Corporate Social Responsibility in Kenya’s Extractive Industry: A Case Study of the Mui Coal Mining Project

Authors Lois M Musikali

ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 65 – 82

Abstract

Corporate governance scholarship, so far, has focused on a rather narrow, finance-dominated, agency theory perspective. This has been the case even in defining corporate social responsibility (CSR). Corporate social responsibility has only been justified where it is considered to be financially beneficial to the company. It is on that basis that this article addresses the question of whether such a paradigm is justifiable when applied to developing countries such as Kenya. The article is a case study of CSR in Kenya’s mining industry that is dominated by multinationals. In particular, it focuses on the treatment of stakeholders in the Mui Coal Mining Project in Kitui County, Kenya.

The Legality of the Appellate Division and the Human Rights Jurisdiction of the East African Court of Justice of the East African Community

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

The Legality of the Appellate Division and the Human Rights Jurisdiction of the East African Court of Justice of the East African Community

Authors Kennedy Gastorn

ISSN: 2521-2613
Affiliations: Associate Professor, University of Dar es Salaam School of Law; Advocate of the High Court of Tanzania and Postdoctoral Fulbright Visiting Research Scholar, Buffalo Law School, State University of New
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 41 – 64

Abstract

This article challenges the legality of the East African Court of Justice (EACJ) Appellate Division on the account of the recent decision of the EACJ First Instance Division, in which the 2006 amendment to the Treaty Establishing the East African Community (the Treaty) was impugned as having been made without adequate consultation, hence in infringement of the Treaty provisions. It argues that since the EACJ concluded that the amendment constituted an infringement of the Treaty, and recommended that the changes be revisited at the earliest opportunity upon reviewing the Treaty, the legality of the Court’s Appellate Division, which incidentally is a product of the amendments, is questionable. [The East African Centre for Trade Policy and Law v The Secretary General of the East African Community, EACJ Reference No 9 of 2012 (First Instance Division).] The article reviews the existing mandate of the EACJ on human rights and discusses the constitutional doctrine of basic structure as applicable to the Treaty, particularly on the inviolability of provisions on human rights in the Treaty. Additionally, the article argues that provisions on human rights do not constitute the basic structure in the Treaty. Furthermore, it discusses the legality of the recent decision by the Council of Ministers to engage judges on a full-time basis as sitting judges in Arusha while the court is not yet fully operational. This decision violates Article 140(4) of the Treaty, which allows sitting judges only when the EACJ is fully operational. It is submitted that the EACJ will be fully operational when it is given ‘such other original, appellate, human rights and other jurisdictions’, in terms of Article 27(2) of the Treaty, and not in its current form.

The Right to Life in International Law: Emanation of a Unitary Concept in Comparative Adjudicatory Practice

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

The Right to Life in International Law: Emanation of a Unitary Concept in Comparative Adjudicatory Practice

Authors Brian Sang YK

ISSN: 2521-2613
Affiliations: Doctoral Candidate, Faculty of Law, University of Cape Town
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 1 – 40

Abstract

Terrorist threats have become an increasingly common and disturbing feature of contemporary life in Africa and elsewhere. Governments have typically resorted to using lethal force in their respective law enforcement efforts to thwart terrorist activities, which has an implication on the right to life. This raises the question whether, despite differences in legal, political and geographic contexts, it is possible to identify a common approach to the right to life and permissible limitations thereof. It is the thesis of this article that despite the dissimilarity of expression in various international and regional human rights treaties, there has since emerged a unitary concept of the right to life in international law. The article begins by briefly highlighting the complementarity between the primacy of the right to life and its capacity for justifiable restriction, albeit in limited conditions. It then discusses, in turn, notions of arbitrary and unlawful deprivation of life, analysing the respective Treaty texts and how they have been interpreted in practice. Following a comparative review of adjudicatory practice pertinent to the right to life, the article demonstrates that the legal elements of arbitrariness and unlawfulness regarding the deprivation of life are either essentially the same, or that there is little significant difference between them. Accordingly, the article makes the case for the emanation of a unitary notion of justifiable deprivation of life. It concludes by summarising and further elaborating the legal standards for justifiable killing, which can be instructive for law enforcement officials in their respective counter-terrorist operations.