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an eventual regression of the role of international instruments to a position similar to the dualist approach under the repealed Constitution.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.

The concept of dominance through the lens of Babelegi and Dis-Chem [Discussion of Competition Commission v Babelegi Workwear Overall Manufacturers and Industrial Suppliers CC CR003Apr20 and Competition Commission v Dis-Chem Pharmacies CR008Apr20]

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

The concept of dominance through the lens of Babelegi and Dis-Chem [Discussion of Competition Commission v Babelegi Workwear Overall Manufacturers and Industrial Suppliers CC CR003Apr20 and Competition Commission v Dis-Chem Pharmacies CR008Apr20]

Author: Phumudzo S Munyai

ISSN: 1996-2193
Affiliations: LLB LLM LLD
Source: Stellenbosch Law Review, Volume 35 Issue 3, 2024, p. 257-272
https://doi.org/10.47348/SLR/2024/i3a3

Abstract

This contribution provides an analysis of two landmark decisions of the Competition Tribunal in Competition Commission and Babelegi Workwear Overall Manufacturers and Industrial Suppliers CC CR003Apr20 and Competition Commission and Dis-Chem Pharmacies CR008Apr20. Arising from broadly similar sets of facts, and producing almost identical responses from the competition authorities, the decisions are significant for South Africa competition law, not only as the first to be considered under section 8(1)(a) of the Competition Act 89 of 1998 but also due to a range of novel issues arising from the cases and findings of the Competition Tribunal. While the judgments, which were handed down a few years ago, remain sensations in many competition law lecturing halls across the country, they have to date elicited a disappointing rate of return in terms of legal academic commentary and debate. This contribution provides an overview of the two decisions, focusing particularly on the Tribunal’s decision to avoid defining the relevant markets for purposes of establishing dominance, but concluding nevertheless that the two firms were dominant and ultimately that they had abused their dominance by charging excessive prices in violation of section 8(1)(a) of the Competition Act.

Situated in time and space [Discussion of Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA)]

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

Situated in time and space [Discussion of Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA)]

Author: Lindani Mhlanga

ISSN: 1996-2193
Affiliations: BA LLB LLM LLD
Source: Stellenbosch Law Review, Volume 35 Issue 3, 2024, p. 273-288
https://doi.org/10.47348/SLR/2024/i3a4

Abstract

This contribution draws inspiration from a recently published book chapter, “The Trans-Temporality of Land Ownership in South Africa” by GE Kamdem Kamga and I de Villiers, which I have had the pleasure of reading and responding to in its formative stages. The chapter critically examines the evolving concept of land ownership within the suburbs of Bloemfontein, South Africa, particularly through the lens of time. Drawing from interviews conducted in the Cape Stands area, the chapter reveals how residents assert land ownership based not only on conventional legal instruments, such as title deeds, but also on non-traditional grounds like inheritance and longterm occupation. This exploration highlights the dual role of time in both entrenching inequality and offering a pathway to remedy it. The chapter juxtaposes conventional formal and informal understandings of land ownership, arguing that the passage of time has blurred the lines between this distinction, making it increasingly irrelevant in the eyes of those in possession. Building on this thesis, this contribution investigates whether the passage of time has, indeed, created the necessary space to reframe our understanding of land ownership, with the potential to address longstanding structural inequalities in South Africa. Using the landmark case of Gongqose v Minister of Agriculture, Forestry and Fisheries 2018 5 SA 104 (SCA) as a focal point, the contribution explores the viability of this temporal space in facilitating transformative outcomes. It critically examines whether time has passed without any significant changes in traditional patterns of land ownership or whether there has been meaningful progress in creating opportunities to rethink and restructure land ownership in a more equitable and just manner.

An examination of decolonisation and Africanisation in the legal context

by | Aug 3, 2025 | SLR, SLR V35 I3

An examination of decolonisation and Africanisation in the legal context

Author: Fanelesibonge Craig Mabaso

ISSN: 1996-2193
Affiliations: LLB LLM PhD
Source: Stellenbosch Law Review, Volume 35 Issue 3, 2024, p. 289-298
https://doi.org/10.47348/SLR/2023/i3a5

Abstract

#Feesmustfall and #Rhodesmustfall were student-led movements that stimulated a necessary discussion of decolonisation, Africanisation and a reimagined post-colonial South Africa. While other academic fields have engaged in rigorous research on decolonisation and Africanisation, there has been very little research on decolonisation and Africanisation from a legal perspective. This contribution focuses on the decolonisation and Africanisation of the law in particular because the law is a sociopolitical construct that regulates all spheres of a person’s life, as well as the relationships that people have with each other and with the state. It is these spaces that were colonised, the law along with physical violence being the primary instrument of colonisation. With this in mind, any discussion of decolonisation necessitates a discussion of decolonising the law. The contribution will also examine the notion of Africanisation and its relationship to decolonisation.