Application of the Kenyan Bill of Rights: Legal Insights from Comparative Constitutional Law and Jurisprudence

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

Application of the Kenyan Bill of Rights: Legal Insights from Comparative Constitutional Law and Jurisprudence

Author Brian Sang YK

ISSN: 2521-2613
Affiliations: LLB (MU), LLM (UCT), PhD (Can) (UCT), Faculty of Law, University of Cape Town
Source: Africa Nazarene University Law Journal, 2014, Issue 1, p. 1 – 40

Abstract

Unlike any of its legal antecedents, the Constitution of Kenya, 2010, foregrounds the Bill of Rights, its repository of all fundamental rights and freedoms, and expressly provides that its content applies to all law and binds all State organs and all persons. The logical implication of this is that, since fundamental rights in the Bill of Rights bind State actors and non-State actors, they consequentially are also enforceable against both classes of actors. But, there is a better and more nuanced view: that, while fundamental rights in the Bill of Rights are, in general, enforceable against the State, the nature of a right and the correlative duty imposed by it may limit such enforceability against private persons, albeit in line with the Constitution. And yet, despite the Constitution’s clarity of purpose in this respect, lately the High Court of Kenya has rendered conflicting rulings in constitutional matters wherein the vexed issue of application arose. This article contends that, the legal position adopted by some learned judges that constitutional rights are not enforceable against natural or juristic persons is as misconceived as it is unsupported by a holistic construction of the Constitution. Rather, it advocates the maximal enforceability of fundamental rights subject only to the lawful strictures of the limitation clause as enshrined in the Kenyan Bill of Rights. Accordingly, the article analyses comparative constitutional law and jurisprudence on the application of fundamental rights in the private sphere with a view to gleaning some instructive legal insights that can inform the development of Kenya’s nascent constitutional law doctrine.

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.