Challenges Presented to the Legal Regime by the Emergence of Private Military Contractors

by | Sep 27, 2019 | ANUL, ANUL 2015 I2

Challenges Presented to the Legal Regime by the Emergence of Private Military Contractors

Authors Kenneth Wyne Mutuma

ISSN: 2521-2613
Affiliations: Lecturer, School of Law, University of Nairobi
Source: Africa Nazarene University Law Journal, 2015, Issue 2, p. 1 – 34

Abstract

The past two decades have witnessed the emergence and rapid growth of private military and security contractors (PMSCs). Today, these corporate entities make up a global security industry based on the provision of security services to both state and non-state clientele across the world, whose value is over 100 United States billion dollars. Although their initial rise was intimately associated with post-Cold War factors, and was expected to taper off with the decline of such factors, these speculations have not materialised. Instead, the gap presented by the demand for and supply of security services, especially with the advent of the war on terrorism, has bolstered their growth to the point that the world’s leading military power, the United States of America (USA), has become dependent upon these actors. It is not surprising that their rapid rise has sparked enormous interest regarding their activities. In particular, the services of PMSCs during armed conflict have generated intense debates on how they should be viewed and treated. These debates have intensified as high profile PMSCs have been forced to submit to the scrutiny of the public because of their use of violence in scenarios that amount to gross violations of human rights and humanitarian law. Even far more significant is the underlying question of the nature of the services that the PMSCs carry out in the battlefield, including services that constitute direct participation in hostilities. In addition, there is the question of whether the current legal regime governing armed conflict foresees, and adequately caters for, this peculiarity. International humanitarian law classifies all actors operating in armed conflicts as either combatants or civilians, conferring rights and obligations upon them on the basis of where they fall in this divide. On that basis, this article seeks to ascertain on which side of the dichotomy these actors are classified. It concludes that the majority of PMSC personnel will be considered as civilians, which is a contradiction in view of the reality of their activities. It is on the basis of that reality that the article proceeds to discuss the challenges that arise from the current classification of PMSCs.

Socio-Economic and Cultural Rights under the 2010 Constitution of Kenya: Justiciable or Aspirational?

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

Socio-Economic and Cultural Rights under the 2010 Constitution of Kenya: Justiciable or Aspirational?

Authors Obat Joseph Wasonga, PLO Lumumba

ISSN: 2521-2613
Affiliations: Lawyer at Lumumba & Lumumba Advocates, Nairobi; Director/Chief Executive and Secretary, Kenya School of Law Board
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 118 – 139

Abstract

Economic, social and cultural rights are human legal entitlements relating to the workplace, social security, family life, environment, participation in the cultural life, and access to housing, food, water, health care and education. International human rights instruments are grounded on the fact that particular entities, such as States, have a duty to protect, promote, and fulfil such rights. On that basis, the holders of the rights may correspondingly make claims on the duty-bearers. Therefore, an evaluation of the fulfilment of human rights should examine the extent of the obligation of the dutybearers, as well as the extent of enjoyment of the legal entitlements by the rights holders. This article investigates the theoretical basis for the inclusion of economic, social and cultural rights in the 2010 Constitution. It addresses the question whether the protection of such rights is an indication that the Constitution has a transformative agenda that proceeds beyond the mere guarantee of abstract equality. It also evaluates whether there is a genuine commitment to transform Kenya from a society based on socio-economic deprivation to one that is grounded on equal and equitable distribution of resources. It is in that context that the article examines the issue of justiciability of socio-economic rights under the 2010 Constitution of Kenya.

The Memorandum of Understanding on Double Taxation between Nigeria and Kenya: An Appraisal

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

The Memorandum of Understanding on Double Taxation between Nigeria and Kenya: An Appraisal

Authors MK Adebayo, SM Olokooba

ISSN: 2521-2613
Affiliations: Lecturer and Head, Department of Private and Property Law, Faculty of Law, University of Ilorin; Lecturer, Faculty of Law, University of Ilorin
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 102 – 117

Abstract

It is the practice in most States for income tax to be imposed both on worldwide income derived by residents of the country and on income derived by non-residents generated within the country. The effect of such a system is that income derived by a resident of one State from a source in another country is subjected to tax in both States. This position clearly discourages foreign investment, hence the conclusion of double taxation treaties between States. The focus of this article is, therefore, an appraisal of the memorandum of understanding (MoU) agreement on double-taxation recently entered into by Nigeria and Kenya. It argues that the MoU, if effectively implemented, will boost trade and economic development through increased revenue generation from taxation. The article elucidates on the jurisprudential basis of double taxation treaties by States and then proceeds to undertake a critical analysis of the MoU by Nigeria and Kenya.

Violations of Socio-Economic Rights in Developing States: A Case for the Recognition of the Right to Inheritance in International Human Rights Law

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

Violations of Socio-Economic Rights in Developing States: A Case for the Recognition of the Right to Inheritance in International Human Rights Law

Authors Azizat O Amoloye-Adebayo

ISSN: 2521-2613
Affiliations: Lecturer, Faculty of Law, University of Ilorin; Barrister and Solicitor of the Supreme Court of Nigeria
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 83 – 101

Abstract

This article contributes to the human rights discourse on the protection of economic, social, and cultural rights (ESCR) under international human rights law (IHRL). In a developing State’s context, such as in the case of Nigeria, lack of resource may be cited as an excuse for lack of meaningful protection of ESCR. However, this article postulates the view that some core ESCR may be realised and guaranteed not just by viewing them as obligations for States to expend financial resources to facilitate their protection, but also, and even more importantly, by requiring States to review the root causes of their violations, some of which are merely socio-cultural in nature. The socio-cultural causes of the violations of ESCR may not require utilisation of financial resources. To demonstrate that point, the article examines the issue of how States can reduce ESCR violations through dispossession and dis-entitlement to property under the inheritance legal regime, especially in developing States such as Nigeria.

Legislating Corporate Social Responsibility in Kenya’s Extractive Industry: A Case Study of the Mui Coal Mining Project

by | Sep 27, 2019 | ANUL, ANUL 2015 I1

Legislating Corporate Social Responsibility in Kenya’s Extractive Industry: A Case Study of the Mui Coal Mining Project

Authors Lois M Musikali

ISSN: 2521-2613
Affiliations: None
Source: Africa Nazarene University Law Journal, 2015, Issue 1, p. 65 – 82

Abstract

Corporate governance scholarship, so far, has focused on a rather narrow, finance-dominated, agency theory perspective. This has been the case even in defining corporate social responsibility (CSR). Corporate social responsibility has only been justified where it is considered to be financially beneficial to the company. It is on that basis that this article addresses the question of whether such a paradigm is justifiable when applied to developing countries such as Kenya. The article is a case study of CSR in Kenya’s mining industry that is dominated by multinationals. In particular, it focuses on the treatment of stakeholders in the Mui Coal Mining Project in Kitui County, Kenya.

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.