Whose Marriage Is It Anyway? An Analysis of the Compatibility of Polygamy with International Human Rights Law

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

Whose Marriage Is It Anyway? An Analysis of the Compatibility of Polygamy with International Human Rights Law

Author Melba Wasunna Kapesa

ISSN: 2521-2613
Affiliations: BA, LLB (UCT); SJD (Monash); Legal Researcher, Supreme Court of Kenya
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 41 – 61

Abstract

This article aims to assess the compatibility of the practice of polygamy with international human rights law. The article begins by briefly exploring the historical context of polygamy including its roots in many religions and cultures and also discusses how the practice has evolved in modern times. The article then gives an overview of the debate surrounding the universality of human rights and cultural relativism and suggests a conciliatory viewpoint. The article discusses the international human rights stance on polygamy and its implications on women’s rights as well as competing human rights which favour consensual polygamous marriages. Finally, the article reviews the international human rights strategy to combat polygamy and argues that it fails to adequately protect women’s rights. It then proposes an alternative framework for the treatment of polygamy which is compatible with international human rights. The article ultimately concludes that although (consensual) polygamy has weaknesses, it nonetheless conforms to the spirit and letter of international human rights instruments and its legal regulation is vital to protect women’s rights.

Revisiting the Principle of the Best Interests of the Child in the Law on Children: Its History, Meaning, Legal Prescriptions and Minimum Operational Standards

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

Revisiting the Principle of the Best Interests of the Child in the Law on Children: Its History, Meaning, Legal Prescriptions and Minimum Operational Standards

Author Elisha Z Ongoya and Ibrahim K Alubala

ISSN: 2521-2613
Affiliations: Advocate of the High Court of Kenya; Partner, Ongoya & Wambola Advocates; Lecturer and Acting Head of Department of Public Law, Kabarak University; Advocate of the High Court of Kenya; Advisor, Child Rights Governance, Save the Children International, Kenya Country Office
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 62 – 82

Abstract

At the centre of the legal regime for the protection and welfare of children are a number of principles. A key principle is one on the best interests of the child. This article interrogates the historical origins of this principle. The article then looks at the same principle as prescribed by international and Kenyan legal instruments and as applied by international and Kenyan juridical institutions.

The Right to Fair Administrative Action in Kenya: Lessons from South Africa’s Experience

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

The Right to Fair Administrative Action in Kenya: Lessons from South Africa’s Experience

Author Oscar Sang

ISSN: 2521-2613
Affiliations: LLB Hons (Moi); Dip (KSL); LLM (Cape Town); Programmes Officer, Moi University Legal Aid Clinic
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 83 – 107

Abstract

Kenya’s administrative law has long been shaped by common law until the enactment of the 2010 Constitution. The Constitution heralds a new constitutional order by incorporating a progressive Bill of Rights that includes, in Article 47, a fundamental right to fair administrative action. The right to fair administrative action is a rather unusual right that arguably has its origins in the South African Constitution. This article seeks to examine the effect of the right to fair administrative action in Kenya in light of the South African experience. The article proposes what should be incorporated into the legislation required to give effect to the right to fair administrative action. The article takes the view that the envisaged Kenyan legislation on fair administrative action could borrow a leaf, with appropriate modifications, from the provisions of South Africa’s Promotion of Administrative Justice Act 3 of 2000.

Integrative Constitutionalisation of International Soft Law: Application of the United Nations Business and Human Rights Framework and its Implication for Business Corporations in Kenya

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

Integrative Constitutionalisation of International Soft Law: Application of the United Nations Business and Human Rights Framework and its Implication for Business Corporations in Kenya

Author Japheth Odhiambo

ISSN: 2521-2613
Affiliations: LLB (Hons) (Nairobi), PGDL (Kenya School of Law), LLM (Nairobi); Advocate of the High Court of Kenya
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 108 – 132

Abstract

This article evaluates the application of international soft law through an approach it terms ‘integrative constitutionalisation’. In this approach, the values and principles raised in soft international law are contextualised and built into the operative architecture of the Kenyan Constitution. The evaluation is undertaken using the United Nations Guiding Principles on Business and Human Rights. The article establishes the link between human rights and business in order to contextualise the place of human rights in business and corporate governance. The article also considers the Kenyan situation in relation to business and human rights and assesses how Kenya has constructively integrated the international soft law on business and human rights into its Constitution. The view of this article is that claims for (international) human rights protection and promotion in the governance and activities of business corporations are legitimate and require to be addressed, properly, at the constitutional plane. One of the findings of the article is that Kenya has integrated the United Nations Business and Human Rights Framework into its 2010 Constitution.

Truth-seeking in Kenya: Assessing the Effectiveness of the Truth, Justice and Reconciliation Commission of Kenya

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

Truth-seeking in Kenya: Assessing the Effectiveness of the Truth, Justice and Reconciliation Commission of Kenya

Authors Evelyne Asaala & Nicole Dicker

ISSN: 2521-2613
Affiliations: LLB (Hons) (University of Nairobi), LLM (University of Pretoria), PhD Candidate (University of the Witwatersrand); Lecturer, School of Law, University of Nairobi; BA LLB (Hons) (University of Sydney), MAAPD (Australian National University), PhD Candidate (University of Sydney)
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 133 – 164

Abstract

This article considers the effectiveness of the Truth, Justice and Reconciliation Commission of Kenya (TJRC). The recent submission of the final report of the TJRC to Kenyan President Uhuru Kenyatta on 21 May 2013 sets up the TJRC as topical and ripe for analysis. The TJRC was established in response to the harrowing two-month period of violence that devastated Kenya in the aftermath of disputed presidential elections in December 2007. Post-election violence resulted in the deaths of over 1,200 Kenyans and left hundreds of thousands displaced; many suffered abductions, illegal detentions, torture and ill-treatment, sexual violence, and property violations. The TJRC was established in order to promote peace, justice, national unity, healing, and reconciliation among the people of Kenya; to respond to the legacy of human rights violations marring Kenya’s development. Yet significant delays, allegations of corruption (including embezzlement of TJRC-designated funds), serious concerns surrounding the character and human rights record of the TJRC Chairperson, Ambassador Bethuel Kiplagat, and dubious political will for and alleged interference with the TJRC process, has diluted the success of the TJRC. Applying criteria for assessing truth commission effectiveness, this article critiques the effectiveness of Kenya’s truth-seeking project, and emphasises the importance of full implementation of the recommendations of the final report of the TJRC.

The Role of Mediation in the Resolution of the South Sudan Crisis

by | Aug 10, 2025 | ANUL, ANUL 2013 I2

The Role of Mediation in the Resolution of the South Sudan Crisis

Authors Priscilla M Musikali and Lois M Musikali

ISSN: 2521-2613
Affiliations: LLM (Can) (Leeds); Senior Lecturer, Africa Nazarene University Law School
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 165 – 200

Abstract

This article is a study of the function of mediation as a dispute resolution mechanism in the attainment of independence in South Sudan. The motivation for this article is an interest in the newly formed State, and a fascination with the manner in which the State was able to transform its situation from conflict to peace. Only a few jurisdictions have been able to secede from their parent states, namely Eritrea from Ethiopia, and the controversial secession of Kosovo from Serbia. This article is therefore a great opportunity to explore how South Sudan, with the help of other actors, was able to secure peace and secession through mediation. It will prove, with accompanying evidence, that without the input of mediation as a conflict resolution mechanism, the birth of South Sudan may not have been possible. It will demonstrate that the Comprehensive Peace Agreement played a central role in securing independence and autonomy through a referendum that expressed the will of the people of South Sudan. It is important to note that any peace process results from conflict and the need for a minority group in a State to be free: hence this article will concentrate at length in analysing the factors that motivated the war, as well as the need for self-determination. It will also explain why the recognition of the new State of South Sudan has not been debated. The use of mediation and peace agreements has been employed in peace processes in jurisdictions such as Cambodia; and this article will distinguish the agreements in South Sudan and Cambodia, to determine if South Sudan is unique and had the benefit of learning from previous peace agreements. It will argue that mediation and peace agreements are successful ways of providing lasting peace, self-determination and independence to oppressed minority groups. Moreover, the function of international law in mediation will be illustrated throughout the article.

The ICTR’s Contribution to the Future of International Criminal Justice and the Fight against Impunity in Africa

by | Aug 9, 2025 | ANUL, ANUL 2013 I1

The ICTR’s Contribution to the Future of International Criminal Justice and the Fight against Impunity in Africa

Author Morris Kiwinda Mbondenyi

ISSN: 2521-2613
Affiliations: LLB (Moi); LLM, LLD (University of South Africa); Senior Lecturer in Law; Head, Africa Nazarene University Law School
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 1 – 35

Abstract

Since its inception in the aftermath of the 1994 Rwanda genocide, the International Criminal Tribunal for Rwanda (ICTR) has made some remarkable positive impact in the course of executing its judicial mandate. With its success in arresting, trying and convicting some of the people who were most responsible for international crimes committed in Rwanda in 1994, the Tribunal is widely acclaimed as one of the most important international justice bodies since Nuremberg. Yet in its almost two decades of operation, the Tribunal has registered both accolades and criticisms in almost equal proportions. This article analyses the contribution of the ICTR in securing the future of international criminal justice and also the fight against impunity in Africa. The article does so against the backdrop of the different options that now seem open for Africa in this regard. The central argument of the article is that the experience of the ICTR has taught Africa and the world at large that ad hoc institutions cannot be solely relied upon to effectively enforce international criminal justice. The continent should therefore unequivocally resolve to challenge impunity and atrocity crimes through the adoption of other approaches that are suitable to effective enforcement of international criminal justice. The article proposes some of those approaches.

The 2010 Constitution and the Application of International Law in Kenya: A Case of Migration to Monism or Regression to Dualism?

by | Aug 9, 2025 | ANUL, ANUL 2013 I1

The 2010 Constitution and the Application of International Law in Kenya: A Case of Migration to Monism or Regression to Dualism?

Authors Tom Kabau and J Osogo Ambani

ISSN: 2521-2613
Affiliations: Senior Lecturer in Law, Africa Nazarene University Law School. PhD (Designated) in Public International Law (University of Hong Kong); LLM (University of Nairobi). Previous Research Fellow, Utrecht University; Lecturer in Law, Moi University School of Law. Doctoral Candidate in Law and LLM (University of Pretoria)
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 36 – 55

Abstract

Articles 2(5) and 2(6) of the Constitution of Kenya, 2010, recognise international law as a valid norm within the legal system. Despite the Constitution establishing a basis for a more progressive application of international norms within the legal system, recent jurisprudence from a superior court of record seems to relegate the role of international legal instruments. This could contribute to an eventual regression of the role of international instruments to a position similar to the dualist approach under the repealed Constitution. The uncertainty and lack of consistency in the emerging jurisprudence on the position of international law within the legal system is aggravated by the fact that there is ambiguity in terms of the hierarchy of legal norms. There is the necessity for a superior position for international law within the legal system due to its more progressive human rights regime. However, the absence of statutory provisions or consistent judicial philosophy that unambiguously provides for the supremacy of international law over conflicting domestic legislation could contribute to the relegation of the role of international law. Given this backdrop, this article addresses the following issues: whether there is a normative and theoretical basis for the application of international law within Kenya’s legal system; whether the emerging jurisprudence with regard to the application of international law in Kenya is worthwhile; and whether there is a hierarchy of norms within the Kenyan legal system and the position of international law in such order.

Locating the Right to Development in Kenya

by | Aug 9, 2025 | ANUL, ANUL 2013 I1

Locating the Right to Development in Kenya

Author Anthony Wambugu Munene

ISSN: 2521-2613
Affiliations: LLB (University of Nairobi), LLM (University of Pretoria); Assistant Director, Kenya School of Law
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 56 – 75

Abstract

Perhaps one of the most critical of all human rights is the right to development. Yet since its emergence in the 1970s and through its evolution it has been the subject of both academic and political controversy. Over the last four decades, the right to development has come to be a fundamental human right with the human person being identified its central subject and beneficiary. With the coming into force of the new Constitution on 27 August 2010, international law became part of the law of Kenya. The Constitution’s expanded Bill of Rights lays down a progressive framework for the realisation of rights and realisation of the full potential of its subjects. Its net effect is to lay a foundation for the realisation of the right to development. This article locates the place of the right to development in Kenya’s new constitutional dispensation.

Fiscal Decentralisation in Kenya and South Africa: A Comparative Analysis

by | Aug 9, 2025 | ANUL, ANUL 2013 I1

Fiscal Decentralisation in Kenya and South Africa: A Comparative Analysis

Author Francis Njihia Kaburu

ISSN: 2521-2613
Affiliations:LLB (Hons) and LLM (Public Finance and Financial Services Law) University of Nairobi; Advocate of the High Court of Kenya; Lecturer at the University of Nairobi, School of Law, Kisumu Campus
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 76 – 106

Abstract

Kenya and South Africa have adopted fiscal decentralisation models in their Constitutions. Though Kenya’s system is at its nascent stages and its implementation is slowly progressing, South Africa has, to a great extent, successfully implemented its system since 1996. South Africa leads the African continent in fiscal decentralisation, and is therefore of significant comparative value while analysing the opportunities and limitations of the Kenyan system. The comparative analysis is based on the pillars of effective fiscal decentralisation. Although both systems adhere to the pillars, South Africa has three spheres of devolution whereas Kenya has two. This article establishes that the Kenyan decentralisation system is weaker in a few respects. First, it devolves minor functions to the County Governments, leaving the bulk of the health and education expenditures under the control of the National Government (NG). Second, it devolves taxation powers to County Governments for taxes which, under the previous local authorities system, have historically been low yield and hard to collect. Third, it insists on National Government guarantees, which may be an incentive for irresponsible borrowing by County Governments. However, the Kenyan system is stronger in two respects. First, it creates an equalisation fund, with decisions on amounts being made by Parliament in consultation with the Commission on Revenue Allocation (CRA). This insulates the system from skewed allocations meant to benefit certain areas over others. Second, the Kenyan system has more implementation supervision institutions, including the CRA, the Constitutional Implementation Commission (CIC) and the Transition Authority (TA). The only such body in South Africa is the Financial and Fiscal Commission (FFC), playing a supervisory role in devolution of fiscal matters.