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.

Corruption Menace in Kenya: Are Legislations and Policies the Answer to Internationalised Corruption?

by | Sep 27, 2019 | ANUL, ANUL 2016 I2

Corruption Menace in Kenya: Are Legislations and Policies the Answer to Internationalised Corruption?

Authors Joshua Kiptoo

ISSN: 2521-2613
Affiliations: Tutorial fellow at the University of Nairobi and a practising advocate of the High Court of Kenya
Source: Africa Nazarene University Law Journal, 2016, Issue 2, p. 104 – 125

Abstract

Corruption in Kenya is a menace that permeates every aspect of society and has proven difficult to eradicate. The Kenyan graft has been broadly classified into petty corruption, grand corruption and looting or political corruption. The latter two present the biggest threat to the country’s stability due to its debilitating negative effect. This has led to concerted efforts towards dealing with corruption, majorly through positive law in the form of statutory instruments. However, this paper posits that such an approach has largely been unsuccessful due to lack of executive action and political will. This paper seeks to define the corruption menace through the structural invisible concept, with a view to recommending practical solutions to address it. Corruption is a form of structural invisible violence, pitting the elite or ruling class against the majority poor. This paper defines how the small powerful elite control instruments of power and use them to perpetuate grand corruption and looting. This, therefore, explains the lack of political will to combat the vice as the political elite circumvent existing positive law on graft. The country has mostly relied on positive law to combat graft but to not much success. Through the structural invisible violence concept, the executive arm of the state uses its power to continue perpetuating corruption. Executive inaction in the fight against graft typifies deliberate lack of political will as the individual members benefit at the expense of the citizenry. This paper posits that the war on graft can only be successful through consistent executive action to inject the much-needed political will. A case study of China and Georgia offers evidence that executive action drives the graft in a more successful way.

Adequacy or Otherwise of the Implementation of International Aircraft Security Laws in Nigeria

by | Sep 27, 2019 | ANUL, ANUL 2016 I2

Adequacy or Otherwise of the Implementation of International Aircraft Security Laws in Nigeria

Authors Ismail Adua Mustapha

ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2016, Issue 2, p. 84 – 103

Abstract

Aircraft is the safest and fastest of all the means of transportation. It easily links the world together via movement of passengers from one country to another. While these characteristic are being improved upon to satisfy the passengers, the security aspect of aircraft is under serious threat especially in the last and present 21st century. This is due to the fact that many aircrafts had been victims of threat from various forms of unlawful interferences, such as hijacking and destruction of aircraft among others, from the external sources. Be that as it may, most countries of the world have adopted both international and national aviation security laws and Regulations to secure aircraft from various forms of these interferences. The paper therefore explores how aircrafts are being secured against unlawful interference in Nigeria through the implementation of aviation security law in the country. Are the protection and security adequate? The paper is qualitative in nature as it gathers information from the Aviation Security Providers in Nigerian Airports as well as review of Nigeria primary and secondary sources of Aviation security Law. It was found that, even though Nigeria is lucky not to have experienced so much catastrophes of unlawful interference, the security aspect of aircraft is inadequate.

Adversarial System in the Family Court: Making a Case for Court-mandated Mediation

by | Sep 27, 2019 | ANUL, ANUL 2016 I2

Adversarial System in the Family Court: Making a Case for Court-mandated Mediation

Authors Rodgers Otieno Odhiambo

ISSN: 2521-2613
Affiliations: Advocate of the High Court of Kenya. Law Lecturer, African Nazarene University, Kenya
Source: Africa Nazarene University Law Journal, 2016, Issue 2, p. 63 – 83

Abstract

The purpose of this article is to analyse whether the adversarial system in the Family Court is capable of delivering justice to the people who come to that court. It does that by identifying key issues within the family justice system. It continues with an analysis of the role of the family court and lawyers in administering justice. The article argues that the adversarial nature of the traditional legal pathway fails to adequately address family disputes and therefore leads to a miscarriage of justice. It then continues to make a case for court-mandated mediation within the family justice system. The main conclusion reached is that the family court as it is currently structured is ill-equipped to deal with complex family issues, and that it is time court-mandated mediation is introduced as mediation to deliver justice expeditiously.

Eurocentric Influence and Misconception of the Islamic and Customary Criminal Justice System in Nigeria

by | Sep 27, 2019 | ANUL, ANUL 2016 I2

Eurocentric Influence and Misconception of the Islamic and Customary Criminal Justice System in Nigeria

Authors Yusuf Ibrahim Arowosaiye

ISSN: 2521-2613
Affiliations: Lecturer, Department of Public Law, Faculty of Law, University of Ilorin
Source: Africa Nazarene University Law Journal, 2016, Issue 2, p. 36 – 62

Abstract

A common feature of the concept of crime in the traditional African society, Nigeria inclusive, is that conducts or acts that are being regarded as unlawful are largely not codified, but deeply ingrained in the people. This excludes communities in Northern Nigeria where Islamic law and jurisprudence was once fully in operation. The idea that all crimes are wrong against the state without reference to the victim of crime is a criminological conception of modern thought. Despite the perceived primitive nature of customary criminal justice system, its cardinal objective remains the maintenance of peaceful socio-economic, cultural cum political orderliness in society. Thus, in the pre-colonial Nigerian traditional society, compromise, restitution and compensation were commonly employed as mechanism of criminal justice administration. Upon the conquest of African territories, attempts were made by the imperial powers to supplant peoples’ cultural practices, religion and by extension the traditional administration of justice. The justification for this Eurocentric supercilious jurisprudential perception of African customary criminal justice system is the pervasive or erroneous view that customary law generally lacks the fundamental rudiment for an effective criminal justice system. This paper investigates the nature and features of the Nigerian customary criminal justice system and interrogates the imperial position and the rhetoric that customary criminal justice is generally unwritten and largely uncertain and sometimes barbaric as against the doctrine of natural justice, equity and good conscience. This study concludes that customary criminal justice, which was unfortunately abolished under the relevant provisions of the Nigerian law, is still relevant and adaptable in every circumstance without losing its peculiar characteristics despite the Eurocentric influence in its abolishment, which was borne out of jurisprudential misconception.