Gains and Losses: The Impact of the Beijing Declaration and Platform for Action on the Legal Status of Kenyan Women

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

Gains and Losses: The Impact of the Beijing Declaration and Platform for Action on the Legal Status of Kenyan Women

Author Nancy Baraza and Karen Koech

ISSN: 2521-2613
Affiliations: LLB, LLM, LLD. Senior lecturer at the School of Law, University of Nairobi; Student at the school of law, University of Nairobi 
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 86 – 110
https://doi.org/10.47348/ANULJ/v8/i1a4

Abstract

The Beijing Declaration and Platform for Action (BDPFA) or ‘the Platform for Action’ (PFA) of 1995 is the landmark blueprint on how the globe intends to achieve a solution to the never-ending debate regarding equality of the sexes. In 1995, women globally gathered at the Chinese capital, Beijing, for the monumental Fourth World Conference on Women. They agreed on the BDPFA, through which they forged an elaborate path towards gender equality and women’s empowerment. From the first wave of feminism in the nineteenth century to the current #MeToo movement, it is apparent that the realisation of gender equality is a marathon and not a sprint. The 2015 Report of the United Nations (UN) Secretary-General on the 20-year review and appraisal of the implementation of the BDPFA irrefutably brings this reality to light. The PFA has seen significant reforms in both laws and regulations in many states aimed at attaining gender equality over the years. However, these reforms do not match the magnitude of the efforts put into the fight to achieve equality; the world is still lagging. In Kenya, there has been a remarkable shift in the laws and regulations providing for gender equality and non-discrimination after the BDPFA. The dawn of the current genderresponsive constitutional dispensation has seen the enactment of several statutes that specifically address issues that have historically perpetuated patriarchy and disempowered women in Kenya. In attempting to implement these laws, the country has unveiled the roots of gender discrimination and highlighted the dangers of disregarding other nuances of this form of inequality such as economic, social, legal, and cultural factors and the intersectional nature of gender imparity. The impact of the BDPFA on the legal status of women in Kenya is evident; the implementation, however, has presented a few challenges as a result of the distinctive difficulties encountered by Kenyan women and the existing Kenyan legal system.

An appraisal of HIV and Aids (Anti-Discrimination) Act, 2014 and the tide of employment discrimination in Nigeria

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

An appraisal of HIV and Aids (Anti-Discrimination) Act, 2014 and the tide of employment discrimination in Nigeria

Author David Tarh-Akong Eyongndi

ISSN: 2521-2613
Affiliations: LLB (Hons) UNICAL, LLM (Ibadan) BL. Lecturer, College of Law, Bowen University, Iwo, Osun State, Nigeria
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 111 – 127
https://doi.org/10.47348/ANULJ/v8/i1a5

Abstract

Subjecting employees or applicants to a medical test to determine whether they are fit for employment and so pre-empt any liability that the employer may suffer owing to the unfitness of the employer has become a prevalent practice. However, a trend has developed in terms of which employers subject employees to medical tests to use the outcome as a reason to discriminate against them and terminate their employment. Testing positive for HIV/AIDS is one such outcome where the status of the employee, despite their right to be free from discrimination, has been used to terminate their employment. This is the plight that persons living with HIV/AIDS (PLW HIV/AIDS) must suffer at the hands of employers as they were being discriminated against based on their health status even though it did not affect their ability to discharge their duties. This situation led to discontentment which developed into serious pressure to protect PLW HIV/AIDS. To address the phenomenon, the legislature enacted the HIV and AIDS (Anti-Discrimination) Act 2014. This article adopts the desk-based methodology in appraising the provisions of the Anti-Discrimination Act to determine the extent to which the Act has dealt with the quagmire of employment discrimination against PLW HIV/AIDS in Nigeria. It also considers the challenges confronting the implementation of the Act. The Anti-Discrimination Act has criminalised termination of employment on account of the HIV/AIDS status of an employee and prohibits other forms of discrimination sequel to the status. The article concludes by making vital recommendations on how to implement the Act in a way that strikes a balance between curbing discrimination while promoting the employer’s business.

Reforming the UNSC by the African Union proposal to address inequality: The limitations

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

Reforming the UNSC by the African Union proposal to address inequality: The limitations

Author Tatenda Leopold Chakanyuka

ISSN: 2521-2613
Affiliations: PhD Candidate in International Law, Institute of International Law, Wuhan University School of Law, Wuhan, China
Source: Africa Nazarene University Law Journal, 2020, Volume 8, Issue 1, p. 128 – 148
https://doi.org/10.47348/ANULJ/v8/i1a6

Abstract

The United Nations Security Council (UNSC) has been accused of serving the interests of the victors of World War II rather than the collective interests of the current world. Countries, regions, and academics have all called for UNSC reform. The African Union (AU) argues that the current arrangements of the Council do not reflect the broad membership of the United Nations (UN) and ‘equitable geographical distribution’ provided for under the Charter of the United Nations and calls for equitable representation and involvement as per its proposal. Though the African position enjoys the support of most African countries, some African countries have described it as becoming unreasonable and obstructionist to the reform process. Despite, many scholars and countries questioning the practicality and prospects of the AU position gaining universal acceptance, the AU has not stopped calling for reforms by their position. Based on the realities of Article 108 and the responses the African proposal has received, it is time to compromise, but the compromise must be mutual. Currently, the African position does not seem to have the support of either the P5 or the majority of the other UN members. There is a need to devise a new plan that can get the support of the majority. Since Africa is the only region highly underrepresented in the UNSC, representation for Africa is long overdue. This article concludes that for the African position to gain the support of the other countries, including that of the P5, Africa must compromise but the compromise must be reciprocal. Africa can propose two permanent members with one veto power which will increase the veto holders to six.

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.