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.

The Interface between the New and the Previous Land Laws in Kenya: Is there a Philosophical Shift?

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

The Interface between the New and the Previous Land Laws in Kenya: Is there a Philosophical Shift?

Authors Tom Ojienda and Mathews Okoth

ISSN: 2521-2613
Affiliations:LLB (University of Nairobi), LLM (King’s College), LLD (UNISA), Associate Professor of Law, Moi University School of Law; Advocate of the High Court of Kenya; LLB (Hons) (Moi University), Dip Law (Kenya School of Law), MBA Candidate (Edinburgh Business School); Advocate of the High Court of Kenya.
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 107 – 121

Abstract

The Constitution of Kenya 2010 sought to redress the perennial problems associated with land access, use and management in Kenya. Consequently, Parliament has enacted statutes to operationalise Chapter Five of the Constitution dealing with land and the environment. The Land Act, for example, allows for conversion of public land to private land with the approval of either the National Assembly or County Assembly. However, the circumstances for granting the approval are not circumscribed with certainty, thus susceptible to abuse. Again, although the Constitution provides that the maximum period in which non-citizens can hold land in Kenya is 99 years, the Land Act fails to specify whether the period runs from when existing titles held by non-citizens were granted, or from the date of promulgation of the Constitution. The truncation of leaseholds that are for periods longer than 99 years will no doubt present myriad property rights claims, and a framework ought to have been laid out on how to redress such peculiar claims. In light of the foregoing, this article evaluates the interface between the new and previous land laws in Kenya with a view to establishing whether the latter are a philosophical shift from the former. The article seeks to achieve this objective principally by analysing the extent to which the new land laws address the issues that informed land reform in the first place.

The Prosecutor v Thomas Lubanga Dyilo: Emerging Jurisprudence on the Principles of Reparations for Victims of International Crimes

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

The Prosecutor v Thomas Lubanga Dyilo: Emerging Jurisprudence on the Principles of Reparations for Victims of International Crimes

Author Colbert Ojiambo

ISSN: 2521-2613
Affiliations: LLM (International Trade and Investment in Africa) University of Pretoria, LLB (Honours) University of Nairobi; Lecturer in Law at the Africa Nazarene University; Advocate of the High Court of Kenya
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 122 – 129

Abstract

None

Remote commissioning—Signing an affidavit in the “virtual presence” of the commissioner of oaths

by | Aug 4, 2025 | SLR, SLR V35 I3

Remote commissioning—Signing an affidavit in the “virtual presence” of the commissioner of oaths

Author: Ciresh Singh

ISSN: 1996-2193
Affiliations: LLB LLM PhD
Source: Stellenbosch Law Review, Volume 35 Issue 3, 2024, p. 221-237
https://doi.org/10.47348/SLR/2024/i3a1

Abstract

Advances in technology since the turn of the millennium have resulted in technology being infused into all spheres of life. Most, if not all, human functions can now be performed with the use of technology. The law has not been immune to the influence of technology and legislation has been implemented, both abroad and domestically, to encourage the use of technology in law and commerce. Within the South African context, the use of technology was significantly accelerated during the Covid-19 pandemic. Despite the pandemic’s lockdown restrictions, technology allowed courts to conduct trials and other court applications virtually by making use of video conferencing. Technology also allowed contracts and agreements to be signed electronically, and notices and applications to be delivered or served via the use of electronic delivery mechanisms such as e-mail. Currently, there is some uncertainty as to whether a court affidavit can be signed and commissioned virtually. Section 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, read with regulation 3(1) of the Regulations Governing the Administration of an Oath or Affirmation of 1972, provides that an affidavit must be signed in the presence of a Commissioner of Oaths. While some courts have adopted a broad interpretation of section 10, and allowed affidavits to be signed and commissioned remotely in the “virtual presence” of the Commissioner of Oaths, other courts have not taken such a modern approach. Given that the Justices of the Peace and Commissioners of Oaths Act was promulgated over 60 years ago, the time may have come to amend it to allow for the remote signing and commissioning of court affidavits.

The rights of transgender children in South Africa to gender-affirming care in the form of puberty blockers

by | Aug 4, 2025 | SLR, SLR V35 I3

The rights of transgender children in South Africa to gender-affirming care in the form of puberty blockers

Author: Sophy Baird

ISSN: 1996-2193
Affiliations: LLB LLM
Source: Stellenbosch Law Review, Volume 35 Issue 3, 2024, p. 238-256
https://doi.org/10.47348/SLR/2024/i3a2

Abstract

The provision of gender-affirming care to transgender children has sparked significant discourse within medical, ethical, and legal realms. This contribution examines the evolving conceptualisations of children’s autonomy and decision-making capacity within the context of paediatric health care, with particular attention devoted to the unique challenges posed by gender dysphoria. It also investigates the legal landscape surrounding the rights of transgender children to access gender-affirming care. This contribution advocates for a rights-based approach that prioritises the autonomy and well-being of transgender children in the provision of gender-affirming care, while also acknowledging the complexities and ethical dilemmas inherent in navigating this terrain.