The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

Authors Joseph Sergon and Prof Albert Mumma

ISSN: 2521-2613
Affiliations: LLB, LLM (University of Nairobi). Justice of the High Court of Kenya and PhD Candidate, University of Nairobi, Kenya; LLB, LLM, PGDip Legal Studies, PhD. Professor, Faculty of Law, University of Nairobi
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 149 – 171
https://doi.org/10.47348/ANULJ/v8/i1a7

Abstract

The constitutional recognition of traditional dispute resolution mechanisms (TDRMs) legitimises them as complementary avenues to access to justice in Kenya. However, the lack of clarity regarding the scope of these mechanisms makes it difficult to integrate them with the formal justice systems. An understanding of how the mechanisms work is critical in addressing this lacuna. Using a case study approach, this Article discusses the typology of TDRMs in Kenya, and the disputes involved based on examples from the Kipsigis community. It also outlines the Kipsigis TDRM procedures in both criminal and civil cases. The article also discusses the issue of jurisdiction, various reporting and trial stages, whether there are any appellate bodies, enforcement of awards, compensation, and whether any cases have been referred to courts and vice versa. The purpose of the study is to lay a basis for the analysis of TDRMs from a natural justice perspective with the Kipsigis community as the point of focus. The study found that the Kipsigis TDRMs are considered effective avenues for access to justice for those who lack the means to access courts. The community finds the TDRMs fair as they listen to the parties in an open forum and community members are welcome to participate, unlike judicial processes, which are typically adversarial. Yet, a question arises whether TDRMs, by their nature, meet the principles of natural justice and the rule of law, particularly the threshold set for the protection of the right to a fair trial and equality. This article examines the extent to which the Kipisgis TDRMs blends with the principles of natural justice or procedural fairness, and the rule of law.

Promoting water infrastructure investment to accelerate access to water in Tanzania: A legal analysis

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

Promoting water infrastructure investment to accelerate access to water in Tanzania: A legal analysis

Author JS Ombella

ISSN: 2521-2613
Affiliations: LLB (Mzumbe University), LLM (UWC) SA. Lecturer at the Faculty of Law, Mzumbe University-Tanzania
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 172 – 198
https://doi.org/10.47348/ANULJ/v8/i1a8

Abstract

Access to water in Tanzania is reportedly low. However, Tanzania is endowed with plenty of water resources both on the surface and underground. Notably, the uneven occurrence and natural distribution of such water resources limit many communities’ access to water. To guarantee access to water, there is a need to invest in the relevant infrastructures for extraction, treatment and supplying of water from water resources-rich areas to water-scarce areas. Investments in such infrastructures require a sound investment climate, finance, and technological expertise, which seem to be lacking in Tanzania and many other African countries. The absence of a robust legal framework that will cater to the promotion of investment in the water sector seems to be a contributory factor on poor infrastructure in the water sector leading to low access to water. This is because the poor legal framework limits private sector involvement and investment in the water sector due to fear of the risks involved, the lack of awareness of such investment opportunity, and the unclear framework of their participation to name but a few challenges. This article reviews the African regional (African Ministerial Council on Water Declarations) initiative on investment in the water sector and relevant domestic laws on water sector investments. The review reveals that Tanzania’s policy and legal framework is desirous to foster private water infrastructure investment. However, there are legal challenges in respect of the absence of water sector-specific investment incentives, inadequate data on the water sector and investment opportunities, limited human resources, narrow scope of domestic resource mobilisation and overlapping mandate of the established institutions, among others. To guarantee improved access to water Tanzanian water sector laws must address these challenges inhibiting the potential of private sector investment.

Insecurity and economic marginalisation in Marsabit County

by | Jun 17, 2021 | ANUL, ANUL 2020 I1

Insecurity and economic marginalisation in Marsabit County

Author Muthoni Nyuguto

ISSN: 2521-2613
Affiliations: TBC
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 199 – 211
https://doi.org/10.47348/ANULJ/v8/i1a9

Abstract

Ten years after the inauguration of the Constitution of Kenya 2010, the communities of Marsabit County are still living on the periphery of society. They remain systemically excluded from the nation’s mainstream social, political, economic, and cultural activities. Communities living within the North Frontier Districts (as it was known then) and within the Counties of Mandera, Wajir, Garissa, Isiolo and Marsabit are still considered ‘hostile tribes’ by the ruling elite since colonialisation and are treated as such. The colonial government enforced this isolation by enacting a series of Ordinances between the years 1901 to 1933 that systemically isolated and marginalised communities from this geographical area. The Ordinances largely criminalised the community’s main economic activity of pastoralism by allowing arbitral seizure and detainment as well as collective punishment for offences of members of the community. This negative and suspicious perception, systemic exclusion by the laws and policies, condensed economic activities limited to pastoralism, political under-representation, poverty, distance and inaccessibility have exacerbated the marginalisation of the communities living within Marsabit to date. Unfortunately, independence did not liberate these communities within the Northern Frontier Districts from systemic exclusion. They were still treated as a ‘special group’ within the context of section 19 of the Kenya Independence Order in Council. This section provides for the modification, qualifications and exceptions of laws and policies to be applied in respect of these communities. The state felt there was a need to subject these communities to screening, profiling, and overregulation in these areas in comparison to the rest of the nation. State institutions were further unable and unwilling to penetrate these areas. The application of different laws to these communities was carried forward during the post-independence where the Presidency was granted the power to govern these communities by decree. Despite the goodwill of the Constitution 2010 to reduce the levels of marginalisation within this county, there is a need to carry out a case study to assess whether the current legal, political, social and economic frameworks have reduced marginalisation within Marsabit which has been for a long time an ungoverned territory.

Conflict and Convergence in the Application of International Humanitarian Law and Human Rights Law in Guantanamo Bay Naval Base

by | Jul 3, 2020 | ANUL, ANUL 2019 I2

Conflict and Convergence in the Application of International Humanitarian Law and Human Rights Law in Guantanamo Bay Naval Base

Author Henry K. Murigi

ISSN: 2521-2613
Affiliations: PhD Student, United States International University-Africa, Advocate of the High Court of Kenya. Senior Prosecution Counsel.
Source: Africa Nazarene University Law Journal, 2019, Volume 7, Issue 2, p. 1 – 20

Abstract

The conduct of war is not prohibited under international law. Often, serious violations of the rights of the individual occur. The consequences of war raise questions as to what the appropriate regime should be to resolve any concern that may arise as the effects of war. On the one hand, violation of human rights is evident during the conduct of war and, therefore, human rights regimes should apply to solve the problem. On the other hand, the essence of humanitarian war is to govern the conduct of war and should be the dominant regime to tackle such issues. The relationship between these two regimes is very controversial and equally topical. It goes to the heart of the war on terror after the events of 11 September 2001. One view is that everything that happens in Guantanamo Bay is a matter of humanitarian law and has nothing to do with human rights law. Another view holds that it is a purely human rights and law enforcement issue, dealing in domestic matters and nothing more. These two perspectives have grown separately and are often seen as conflictual. This article seeks to show that the two areas of law can coexist and that each should benefit from the other and not compete for supremacy.

Demystifying the Myth of Immovability Attached to Immovable Property in Terms of Property Law

by | Jul 3, 2020 | ANUL, ANUL 2019 I2

Demystifying the Myth of Immovability Attached to Immovable Property in Terms of Property Law

Author Solomon O Afolabi

ISSN: 2521-2613
Affiliations: 
Source: Africa Nazarene University Law Journal, 2019, Volume 7, Issue 2, p. 33 – 46

Abstract

The categorisation of property as movable and immovable create, on the one hand, the impression that immovable property is generally fixed in nature and therefore not subject to mobility, and, on the other hand, that movable property can easily be moved from one position or location to another. This water-tight division in relation to the description of property has permeated the general understanding of the definition of immovable property in the context of property law. Scholarly research and judicial activism, particularly in some countries, of which Nigeria is an example, have identified that the application of the English doctrine ‘quic quid plantateur solo, solo cedit’ renders it possible, in appropriate cases, for an otherwise immovable property to change its status to that of movable under the law. In this regard, consideration is required to be given to how rights in immovable property can be transferred. It is posited that the dichotomy between movable and immovable property is no longer necessary for a proper understanding of the word ‘property’ in the legal context and should therefore be eradicated.