Justifying Maasai Land Claims in Kenya through Statutory Law, Common Law and International Law

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

Justifying Maasai Land Claims in Kenya through Statutory Law, Common Law and International Law

Authors Dennis M Ndambo

ISSN: 2521-2613
Affiliations: Law lecturer at the School of Law at the Jomo Kenyatta University of Agriculture and Technology in Kenya
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 84 – 115

Abstract

This paper addresses one of the most widely acknowledged, but highly contested historical injustices, namely the dispossession of the Maasai community of their land. The Maasai community lost a significant amount of land to European settlers during the colonial period and, after independence, the African government perpetuated the capitalist economy that was antagonistic to the Maasai way of life. As a result, the Maasai presently perceive themselves to be a marginalised community.[fn1] This article uses the Maasai community as a case study and provides justification for the community’s claim for restitution of their ancestral land. It is suggested that restitution of Maasai land can be accomplished in various ways. First, it is possible to justify restitution of Maasai ancestral land by enacting legislation for this purpose. A comparison is made between Kenyan legislation and legislation passed, for the same purpose, in other jurisdictions of the world. Secondly, the Maasai community could claim restitution of their land through the doctrine of aboriginal title. This claim is predicated on the historical presence of the Maasai and other indigenous Kenyan communities on lands prior to establishment of colonial and post-colonial states.[fn2] Two foundations for the doctrine of aboriginal title, common law and international law, are presented. footnote 1: David J Campbell ‘Land as Ours, Land as Mine: Economic, Political & Ecological Marginalization in Kajiado District’ in Thomas Spear & Richard D Waller (eds) Being Maasai: Ethnicity & Identity in East Africa (James Currey Publishers 1993) 258—272; Lotte Hughes ‘Malice in Maasailand: The Historical Roots of Current Political Struggles’ (2005) 104(415) African Affairs 207—224; Dorothy L Hodgson Being Maasai, Becoming Indigenous: Postcolonial Politics in a Neoliberal World (Indiana University Press 2011). footnote 2: Meitamei Olol Dapash, Mary Poole & Kaitlin Noss ‘Historical Injustice at Mau Narok: A Century of Maasai Land Rights’ May 2010. Paper available at accessed on 1 April 2017.

The Legality of Taxing ‘Part-Time’ Employees in Kenya at a Flat Rate of 30%

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

The Legality of Taxing ‘Part-Time’ Employees in Kenya at a Flat Rate of 30%

Authors Wilfred N Konosi, Fred M Ratemo, Fred O Nyagaka

ISSN: 2521-2613
Affiliations: Kisii University, Kenya; None; None
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 58 – 83

Abstract

Taxes are an important aspect of the national economy and a vital source of public finance. The Kenyan Government has, through legislation, imposed various taxes and levies on its citizens and residents, including income tax, value-added tax, customs duty and excise duty. The Kenya Revenue Authority administers the various tax laws in Kenya and collects taxes on behalf of the national government. Regarding the taxation of employment income, Kenya’s Income Tax Act, Chapter 470 of the Laws of Kenya, does not distinguish between employees who work full-time and those who work part-time. In most cases employers categorise employees as being part-time for their own convenience. This categorisation has tax implications for the affected employees. The tax implication, as a result of the differentiation between full-time and part-time employees, is that part-time employees pay more tax on their earnings when compared to their full-time counterparts. The usual practice for the assessment and collection of income tax in Kenya is that employers withhold income tax on the earnings of part-time employees at a flat rate of 30% and remit the same to the Kenya Revenue Authority. This mode of taxation is based on a directive by the Kenya Revenue Authority which has no constitutional or statutory basis. This is not only illegal, but also discriminatory as it denies part-time employees the right to equal remuneration for equal work. This practice is in conflict with the constitutional prescription that Kenya’s public finance system shall promote an equitable society where the burdens of taxation are distributed fairly and the costs and benefits of the utilisation of resources and public borrowing are shared equitably between present and future generations.

Legal Protection of the Environment from Negative Impacts of Extractive Operations in Tanzania

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

Legal Protection of the Environment from Negative Impacts of Extractive Operations in Tanzania

Authors Elifuraha Laltaika

ISSN: 2521-2613
Affiliations: Law Lecturer and Director of Research and Publications at Tumaini University Makumira (Arusha, Tanzania)
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 38 – 57

Abstract

This article provides analysis of the extent to which the legal, policy and institutional framework of Tanzania protects the environment against the negative impacts of extractive operations financed by foreign direct investment. Environmental impact assessment, policy coherence, institutional co-ordination, enforcement of decisions, access to information, recourse mechanism and stakeholder representation are used as guiding tools for analysis, where applicable or appropriate. Extractive operations cannot be conducted without causing some degree of environmental destruction. This article promotes the view that policy and legislative measures cannot be sole antidotes for the environmental and social challenges being faced in the extractive sector. Robust legal and policy frameworks, combined with good governance adherence, including human rights observance, can be catalytic in attaining sustainable economic growth.

Political Economy of Exploitation of Mineral Resources in Post-Colonial Tanzania Mainland (1961-2009): Pertinent Lessons

by | Sep 26, 2019 | ANUL, ANUL 2017 I1

Political Economy of Exploitation of Mineral Resources in Post-Colonial Tanzania Mainland (1961-2009): Pertinent Lessons

Authors Adelardus Kilangi

ISSN: 2521-2613
Affiliations: Director for the Centre for Mineral and Petroleum Law of St Augustine University of Tanzania
Source: Africa Nazarene University Law Journal, 2017, Issue 1, p. 1 – 37

Abstract

This paper addresses the challenges that the mining sector in Tanzania Mainland has faced in the post-colonial period. Generally, the sector has been confronted by dissatisfaction and unhappiness amongst the people of Tanzania regarding the way in which the country’s mineral resources have been and continue to be exploited. The primary contention is that benefits from the mining sector are not visible and that the sector appears to be more beneficial for foreign investors than for local ones. Bearing this in mind and using a political economy approach, this article raises important questions regarding where the management of the mineral sector went wrong in the post-colonial period, ascertaining pertinent lessons that Tanzania has learnt. The findings and conclusion of this article assert that the country erred when it abandoned certain fundamental principles of state policy which govern the exploitation of natural resources. This indicates that in the post-colonial period, Tanzania lacked a clear vision regarding its mineral resources. The country also embraced incorrect insights regarding investment decisions which affected the nature and availability of capital for exploitation of mineral resources.

The Institution of Woman-to-Woman Marriage in Kenya: Navigating between Culture and Human Rights

by | Sep 21, 2019 | ANUL, ANUL 2018 I2

The Institution of Woman-to-Woman Marriage in Kenya: Navigating between Culture and Human Rights

Authors Hon. Dr. Nancy Baraza

ISSN: 2521-2613
Affiliations: Chairperson of the Department of Public Law, School of Law, University of Nairobi
Source: Africa Nazarene University Law Journal, 2018, Issue 2, p. 71 – 91

Abstract

This article examines the woman-to-woman marriage institution in Kenya, and its benefits to the women involved and the society at large, vis-à-vis the human rights of women as guaranteed under international law and the Constitution of Kenya. The article argues that woman-to-woman marriage offers practical benefits to women and the larger society, although there is a need to ensure that the practice does not violate the rights of the women involved. The article notes that the institution is entrenched and the failure to promote it would be challenging and problematic. Instead, there is a need to ensure that constitutional protection of the practice and protection of the human rights of women are balanced.

The Influence of Intergovernmental and Multinational Initiatives on the Preservation of Mine-host Communities’ Culture: A Reflection on Selected Initiatives

by | Sep 21, 2019 | ANUL, ANUL 2018 I2

The Influence of Intergovernmental and Multinational Initiatives on the Preservation of Mine-host Communities’ Culture: A Reflection on Selected Initiatives

Authors Ombella JS

ISSN: 2521-2613
Affiliations: Lecturer at the Faculty of Law, Mzumbe University; Advocate of the High Court
Source: Africa Nazarene University Law Journal, 2018, Issue 2, p. 47 – 70

Abstract

The right to enjoy and participate in cultural life is one of the fundamental human rights recognised at international, regional and sub-regional levels. States are required to respect, protect and fulfil this right, and provide remedies in cases where it is infringed. To achieve this obligation, necessary measures such as legislative measures have to be in place. Such measures are aimed at preserving indigenous peoples’ cultures from potential threats caused by large-scale development projects such as mining, owing to the principle of permanent sovereignty over natural resources. Under this principle, states enjoy the right to regulate access to and use of natural resources within their borders. Consequently, mining activities which threaten the continued cultural practices and lifestyles of communities within the vicinity of the mining project could be dealt with under such laws. Notably, most developing countries’ legal frameworks do not fully guarantee human rights nor do they effectively regulate mining to avoid violations of these rights. In this paper it is argued that multinational companies and intergovernmental initiatives, despite being voluntary in nature, seem to be the gap-filler to ensure that mine-host communities’ cultural lives are not impacted by the presence of mining projects in countries whose legal framework is below the internationally recognised standard for human rights.