Alternative Justice Systems Baseline Policy, 2020
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Working Document for the Constitution of Kenya Review Commission on the Kadhi's Courts, Chief Kadhi and Kadhis
WORKING DOCUMENT FOR THE CONSTITUTION OF KENYA REVIEW COMMISSION ON THE KADHI'S COURTS, CHIEF KADHI AND KADHIS By Ahmed Issack Hassan, Commissioner, CKRC. ([email protected]) (www.ahmedissackhassan.com) The Commission’s Mandate The Constitution of Kenya Review Act provides that the objects and purposes of the constitutional review is to secure provisions therein, inter alia respecting ethnic and regional diversity including the right of communities to organize and participate in cultural activities and the expression of their identities and establishing a democratic government that respects human rights - (Section 3(e) & (b). Further, under Section 5(b) of the Act, the organs of the review shall ensure that the review process accommodates the diversity of the Kenyan people including socio-economic status, race, ethnicity, gender, religious faith, age, occupation, learning, persons with disability and the disadvantaged. The Commission is also mandated to seek views on and make recommendation to the judiciary and the legal systems of Kenya. Chapter 5 of the Constitution of Kenya guarantees the protection of the fundamental rights and freedoms of every person. Section 78 guarantees the freedom of thought, religion and conscience and Section 82 prohibits discrimination of any person on account of inter alia his or her religious beliefs. The Current Status of the Kadhi’s Courts, Chief Kadhi and Kadhis The Kadhi's Court, Chief Kadhi and Kadhis are Constitutional offices established under Section 66 of the Constitution of Kenya. A Kadhi is strictly speaking a judicial officer, judge or magistrate presiding over an Islamic Court, called the Kadhi's Court, where Islamic law or Sharia is applied and subject to the jurisdiction of the Court all the parties who appear before the Court are those that profess the Muslim/ Islamic faith. -
Reflections from Kenya's 2010 Transformative Constitution
Developing Progressive African Jurisprudence: Reflections from Kenya’s 2010 Transformative Constitution 2017 LAMECK GOMA ANNUAL LECTURE Lusaka, Zambia, July 27, 2017 Willy Mutunga1 Preliminary Remarks Chair of SAIPAR Members of the Institute I thank the Southern African Institute for Policy and Research (SAIPAR) for inviting me to give the PROFESSOR LAMECK GOMA ANNUAL LECTURE 2017. The late Professor Goma was a great scholar, the first Zambian Vice-Chancellor of the University of Zambia. He was also a great researcher and a patriotic public servant. 1 Dr. Willy Mutunga is the former Chief Justice of the Republic of Kenya and the President of the Supreme Court of Kenya. A major part of my remarks are taken from a speech I gave to Judges and guests of the Kenyan Judiciary on the occasion of the launching the Judiciary Transformation Framework on May 31, 2012. That speech has been published in the Socialist Lawyer: Magazine of the Haldane Society of Socialist Lawyers. Number 65. 2013,20. The journey of my thoughts since then and now reflected in this Lecture owes a great debt of intellectual, ideological and political gratitude to the following mentors and friends: Professors Jill Ghai, Yash Ghai, Sylvia Tamale, Joel Ngugi, James Gathii, Joe Oloka-Onyango, Issa Shivji, Makau Mutua, Obiora Okafor, Yash Tandon, David Bilchitz, Albie Sachs, Duncan Okello, Roger Van Zwanenberg, and Shermit Lamba. My Law Clerks at the Supreme of Kenya, namely, Atieno Odhiambo, Sam Ngure and Maxwell Miyawa helped with research. The theme of this Lecture is drawn -
PROF BEN SIHANYA, JSD (STANFORD) CURRICULUM VITAE, 1/3/2021, Monday
PROF BEN SIHANYA, JSD (STANFORD) CURRICULUM VITAE, 1/3/2021, Monday © Prof Ben Sihanya, JSD & JSM (Stanford), LLM (Warwick), LLB (Nairobi), PGD Law (KSL) IP and Constitutional Professor, Public Interest Advocate and Mentor Constitutional Democracy, ©, TM, IP, Education Law, Public Interest Lawyering Commissioner for Oaths, Notary Public, Patent Agent, Author, Public Intellectual & Poet University of Nairobi Law School & Prof Ben Sihanya Advocates & Sihanya Mentoring & Innovative Lawyering Author: IP and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development (2016; 2020); IP and Innovation Law in Kenya and Africa: Cases and Materials (forthcoming 2021); Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vols. 1, 2 & 3 (due 2021) [email protected]; [email protected]; url: www.sihanyaprofadvs.co.ke; www.innovativelawyering.com Nairobi; Revised 3/2/2021; 12/2/2021; 1/3/2021 1 PROF BEN SIHANYA, JSD (STANFORD) CURRICULUM VITAE 1989 to Monday, March 1, 2021 Prof Ben Sihanya, JSD & JSM (Stanford), LLM (Warwick), LLB (Nairobi), PGD Law (KSL) IP and Constitutional Professor, Public Interest Advocate and Mentor Constitutional Democracy, ©, TM, IP, Education Law, Public Interest Lawyering Commissioner for Oaths, Notary Public, Patent Agent, Author, Public Intellectual & Poet University of Nairobi Law School & Prof Ben Sihanya Advocates & Sihanya Mentoring & Innovative Lawyering Author: IP and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable -
Statement by the Kenyan Section of The
STATEMENT BY THE KENYAN SECTION OF THE INTERNATIONAL COMMISSION OF JURISTS (ICJ KENYA) AT THE 68TH ORDINARY SESSION OF THE AFRICAN COMMISSION OF HUMAN AND PEOPLES RIGHTS (ACHPR) To the Chairperson of the African Commission of Human and People's Rights (ACHPR), Hon. Solomon Ayele Dersso; Honourable Chairperson, honourable commissioners, state delegates, representatives of National Human Rights Institutions, members of civil society organisations and distinguished participants. About ICJ Kenya ICJ Kenya is a non-governmental, non-profit and member-based organisation that works towards promoting human rights, democratic governance, justice, and the rule of law in Africa. ICJ Kenya has observer status with the African Commission on Human and Peoples' rights under number 118. Introduction This statement is submitted for the period of 2020/2021. It relates to the status of human rights in Kenya, focusing on Equality and inclusion, Security sector, Economic governance, Constitutional implementation and reforms, Judicial strengthening, Criminal justice and Public Sector Accountability. ICJ Kenya is alarmed by the high incidents of human rights violations emanating from the approach to the global Covid-19 pandemic. In Kenya, the public health crisis spiralled into an economic, political, social and legal crisis. Since 2020, the Government of Kenya and State agencies have issued seven (7) executive orders, published seven (7) gazette notices, and issued 14 guidelines, directives, and regulations in response to the Covid 19 pandemic1. The implementation of some of the orders and regulations has gone unchecked and have resulted in human rights violations. Alarmed by the disproportionate impact of these restrictions on human rights, resulting in adverse consequences on people’s livelihoods and well-being, ICJ Kenya hereby submits the statement below as a follow up to the resolutions set out in the 67th Ordinary Session of the African Commission session. -
Political Patronage on the Operationalisation of Public Procurement Law in Kenya
POLITICAL PATRONAGE ON THE OPERATIONALISATION OF PUBLIC PROCUREMENT LAW IN KENYA NJUGUNA HUMPHREY KIMANI REG. NO. G80/83401/2012 A Thesis Submitted in Fulfillment of the Requirements for the Award of Degree of Doctor of Philosophy in Law of the University of Nairobi 2017 ii DECLARATION This thesis is my original work and has not been presented for a degree in any other university. Njuguna Humphrey Kimani Signature................................ Date ................................... This thesis has been submitted for examination with our approval as University Supervisors. 1. Prof. (Justice) James Otieno Odek Signature................................ Associate Professor of Law (UoN) Date:...................................... 2. Prof. Paul Musili Wambua Signature:............................ Associate Professor of Law (UoN) Date:....................................... 3. Dr. Attiya Waris Signature:............................... Senior Lecturer of Law (UoN) Date:....................................... iii DEDICATION To my loving parents, the late Mzee Henry Njuguna, popularly known as Sir Henry and my mother Esther Wanjiru Njuguna; I share this work with both of you for always encouraging me to achieve my goals and for having unwavering confidence in my abilities even during challenging times. You provided infinite compassion and support from which I drew the values of a life-long respect for education. To my dear wife, Nancy Njuguna, our loving children: Njuguna, Kamau and Wanjiru, I thank you for your love, support and patience during the entire process of this study. And to the people of Kenya, who for years have stood for a just society of men and women; those who have risked their lives in fighting for reforms, and to those who continue to advocate for good governance, integrity, transparency and accountability, this study hails you for your selflessness and dedication. -
Supreme Court Act
LAWS OF KENYA SUPREME COURT ACT NO. 7 OF 2011 Revised Edition 2017 [2011] Published by the National Council for Law Reporting with the Authority of the Attorney-General www.kenyalaw.org [Rev. 2017] No. 7 of 2011 Supreme Court NO. 7 OF 2011 SUPREME COURT ACT ARRANGEMENT OF SECTIONS PART I – PRELIMINARY Section 1. Short title. 2. Interpretation. 3. Object of the Act. PART II – ADMINISTRATION OF THE SUPREME COURT 4. Vacancy not to affect jurisdiction. 5. Order of precedence of judges of the Supreme Court. 6. Presiding judge. 7. Procedure if judges absent. 8. Manner of arriving at decisions. 9. Registrar of the Supreme Court. 10. Functions of the Registrar. 11. Revision of decisions of the Registrar. PART III – JURISDICTION OF THE SUPREME COURT 12. Determination of disputes arising out of presidential elections. 13. Advisory role. 14. Special jurisdiction. PART IV – APPEALS TO THE SUPREME COURT 15. Appeals to be by leave. 16. Criteria for leave to appeal. 17. Direct appeals only in exceptional circumstances. 18. Reasons for refusal of leave to appeal. 19. Extent of appellate jurisdiction of the Supreme Court. PART V – GENERAL 20. Appeals to proceed by fresh hearing. 21. General powers. 22. Power to remit proceedings. 23. Exercise of powers of the Court. 24. Interlocutory orders and directions by the Court. 25. Judgment of the Court. 26. Delivery of judgment. 27. Decisions of the Court may be enforced by the High Court. 28. Contempt of Court. 29. Seal of the Supreme Court. 30. Representation before the Supreme Court. 31. Rules. 3 [Rev. 2017] No. -
14Th September, 2017 TO; the Secretary Judicial Service
14th September, 2017 TO; The Secretary Judicial Service Commission Supreme Court Building NAIROBI Dear Madam, RE: PETITION AGAINST JUSTICE DAVID MARAGA Chief Justice & President of Supreme Court A. COMPLAINTS & FACTS THEREOF 1.0 Violation of Regulation 12 of The Judicial Code of Conduct & Ethics The Chief Justice has invited, encouraged and permitted entry into the core of the Judiciary by Non-Governmental Organizations (NGOs) who are known protagonists of the President and Deputy President and who propagated the prosecution of the President and Deputy President at the International Criminal Court (ICC). These elements have now captured the Judiciary with the intent of procuring a regime change through judicial radicalism. The Chief Justice has, inter alia; a) Invited, facilitated and supported the embedding of technical support and financing by the International Development Law Organization (IDLO) to entities within the Judiciary including the Judicial Training Institute, National Council for Administration of Justice and Judicial Election Committee, with full knowledge that the IDLO organization is associated with the known anti-government partisan protagonists, including Makau Mutua who is a Board Member thereof; with full knowledge that the entity collaborates with local non-state actors that participated in prosecuting the President and Deputy President at the I.C.C; with full knowledge that the entity is further associated with local non-governmental organizations and individuals who petitioned against the election of the President -
Muslim Relations in the Politics of Nationalism and Secession in Kenya
1 MUSLIM RELATIONS IN THE POLITICS OF NATIONALISM AND SECESSION IN KENYA Hassan J. Ndzovu Moi University, Kenya PAS Working Papers Number 18 ISSN Print 1949-0283 ISSN Online 1949-0291 Edited by Charles Stewart, Emeritus Professor University of Illinois, Urbana-Champaign Program of African Studies Northwestern University 620 Library Place Evanston, Illinois 60208-4110 U.S.A 2 Abstract Within Kenya’s political scene, racial and ethnic identities play a crucial role in creating division in Muslims’ political engagement. Since independence, the racial and ethnic antagonism among them has weakened a united Muslim’ voice whenever political issues concerning the community arose. As Kenya was preparing for independence, a section of Muslims (Arab Muslims) living at the coast agitated to secede from the rest of Kenya. This demand for secession led to a hostile relationship between the Arab Muslims and other non-Arab Muslim leaders in the country. One effect of this political development is the lasting impact it had on post-independence Muslim politics. The events set a pattern for mistrust between the Arab Muslims and non-Arab Muslims in Kenya. This absence of unity has influenced the way the political elites in Kenya perceive the Muslim community in general. Politicians in Kenya are known to have capitalized on the disunity among Muslims to prevent any united political front from the community. As a result the Muslim community has felt politically marginalized. It is this perceived marginalization which Kenyan Muslims are presently striving to overcome. 3 Introduction In this article, I would like to bring forward the argument that within Kenya’s political scene, racial and ethnic identities play a crucial role in creating division in Muslims’ political engagement. -
Tackling the Dangerous Drift
TACKLING THE DANGEROUS DRIFT ASSESSMENT OF CRIME AND VIOLENCE IN TANZANIA & RECOMMENDATIONS FOR VIOLENCE PREVENTION AND REDUCTION June 2013 Open Society Foundations Crime and Violence Prevention Initiative (OSF CVPI) & Open Society Initiative for Eastern Africa (OSIEA) Prepared by Lainie Reisman, Kennedy Mkutu, Samwel Lyimo, and Monica Moshi with support from the Tanzanian Police Force (TPF) TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................................................................... 2 ACRONYMS ............................................................................................................................................................... 8 1. INTRODUCTION AND METHODOLOGY ................................................................................................... 11 BACKGROUND ON CVPI AND OSIEA ...................................................................................................................... 11 JUSTIFICATION FOR TANZANIA ............................................................................................................................... 11 ASSESSMENT PURPOSES/OBJECTIVES .................................................................................................................... 12 METHODOLOGY ........................................................................................................................................................ 12 2. BACKGROUND AND CONTEXT ................................................................................................................. -
Governance Assessment Kenya 2016.Pdf
GOVERNANCE ASSESSMENT KENYA: JANUARY 2013 – JULY 2016 Kenya: Governance Assessment GOVERNANCE ASSESSMENT Kenya: January 2013 – July 2016 Roland Ebole and Morris Odhiambo1 1 Introduction This report focuses on politically significant developments in Kenya from 2013, when the country held its first general elections under the 2010 constitution. The constitution is considered to have markedly enhanced protection of basic rights, significantly constrained executive power, and provides limited devolution of powers across 47 newly created county governments.2 In 2013, Kenya held its first general election under the 2010 constitution. Kenyans cast their votes for president, national and county-level representatives, female representatives to the National Assembly, and governors. With 50.5% of the vote, Uhuru Kenyatta of the National Alliance (TNA), backed by the Jubilee Alliance, won the presidency. His opponent, Raila Odinga of the Orange Democratic Movement (ODM), backed by the Coalition for Reforms and Democracy (CORD), was second with 43.7%. The election of governors and local assemblies strengthened the position of county governments. Female representatives to the National Assembly were elected in all 47 counties3 while 16 more were nominated to the Senate.4 Following the vote, CORD and a civil society organization (CSO) challenged the outcome of the presidential election at the Supreme Court,5 which had only 14 days to consider their petition under the constitution.6 Moreover, the pay scale for members of parliament set by the Salaries and Remuneration Commission was rejected by legislators, forcing the SRC to approve higher salaries.7 Implementation of the constitution and additional reforms continued, including the vetting of police officers by the National Police Service Commission (NPSC) and scrutiny of judges and magistrates by the Judges and Magistrates Vetting Board (JMVB). -
Judging the Judges: Who Are the Supreme Court Justices?
By Apollo Mboya If there is a jurisdiction that the Justices of the Supreme Court of Kenya curse is the court’s exclusive original jurisdiction to hear and determine presidential election petitions. It is both legal and political but politics reign supreme. In a highly divided country, the court will be doomed whichever way it rules. Former Chief Justice Dr. Willy Mutunga, conscious of the impact of “political jurisdiction” on the courts, expressed his frustrations in a public forum that courts ought not handle election disputes but instead politicians should “deal with their own shit” elsewhere. In his dissenting opinion in Bush v. Gore, Justice Stevens, underscoring CJ Mutunga’s thinking sympathized with the Supreme Court of the United States and indeed the judiciary following the highly disputed 2001 election dispute between George Bush and Al Gore opining as follows: Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. Although SCOTUS does not have exclusive jurisdiction on presidential election dispute as Kenya’s, Bush v. Gore has been the court’s sore thumb that is thought to have led to a “court generated president”. Erwin Chemerinsky in his book The Case Against the Supreme Court notes: Bush v. Gore obviously cost the Supreme Court in terms of credibility. More than forty-nine million people who voted for Al Gore, and likely almost all of them regard the Court’s decision as a partisan ruling by a Republican majority [judges] in favour of the Republican candidate. -
The Impact of Kenya's Legal and Institutional Frameworks on Media Freedom 2014
The impact of Kenya's legal and institutional frameworks on media freedom 2014 ARTICLE 19 ARTICLE 19 EASTERN AFRICA Free Word Centre ACS Plaza 60 Farringdon Road 2nd floor London Lenana Road EC1R 3GA P O BOX 2653,00100 United Kingdom Nairobi T: +44 20 7324 2500 Kenya F: +44 20 7490 0566 +254 (20) 3862230/2 E: [email protected] F: +254 (20) 3862231 W: www.article19.org E: [email protected] Tw: @article19org Fb: facebook.com/article19org ISBN: 978-1-906586-94-2 © ARTICLE 19, 2014 This publication was produced with support from the Kenya Media Programme - HIVOs. Contract Reference RO EA project 1005986. The publication does not represent the opinion of Kenya Media Programme or HIVOS. This report was written by Othieno Nyanjom, a consultant for ARTICLE 19. Dr Othieno Nyanjom is an independent researcher and holds a Doctor of Philosophy degree from the School of Social Sciences and Cultural Studies, University of Sussex. His research interests include but are not limited to governance and human rights issues. He has in the past conducted research on the impact of political ownership of print and electronic media on media content in Kenya. This work is provided under the Creative Commons Attribution-Non-Commercial-ShareAlike 2.5 licence. You are free to copy, distribute and display this work and to make derivative works, except for the images which are specifically licensed from other organisations, provided you: 1. give credit to ARTICLE 19 2. do not use this work for commercial purposes 3. distribute any works derived from this publication under a licence identical to this one.