DOCSLIB.ORG

Kenya: Justice Sector and the Rule of Law V List of Boxes

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Kenya: Justice Sector and the Rule of Law V List of Boxes Kenya Justice Sector and the Rule of Law Patricia Kameri Mbote and Migai Akech A review by AfriMAP and the Open Society Initiative for Eastern Africa March 2011 2011 Open Society Foundations This publication is available as a pdf on the Open Society Foundations website or the AfriMAP website under a Creative Commons licence that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. Published by: The Open Society Initiative for Eastern Africa ISBN: 978-1-920489-18-2 For further information, please contact: AfriMAP PO Box 678 Wits, 2050 Johannesburg South Africa www.afrimap.org [email protected] Open Society Initiative for Eastern Africa PO Box 2193 00202, Nairobi Kenya www.osiea.org Design and lay-out by COMPRESS.dsl | www.compressdsl.com Contents List of boxes vi Acknowledgements vii Preface viii Part I Kenya Justice Sector and the Rule of Law Discussion Paper 1 Introduction 3 1 Consolidating the legal and institutional framework to advance rule of law principles 5 2 Promoting mechanisms that guarantee greater independence of judges 7 3 Breaking a long tradition of government disrespect for the rule of law 9 4 Transforming a largely unfair criminal justice system 11 5 Enhancing mechanisms for a broader access to justice 15 6 Ensuring national accountability of external funding in the justice sector 16 7 Conclusion 18 Part II Kenya Justice Sector and the Rule of Law Main Report 19 1 Justice and the rule of law ideal: Theory and practice 21 A.The rule of law ideal 22 2 Legal and institutional framework 27 A. Compliance with international (human rights) obligations 27 B. The constitution and international human rights standards 33 C. The structure of the court system 42 D. Law reform 45 E. Recommendations 52 3 Government respect for the rule of law 54 A. The executive and respect for the rule of law 55 B. Parliament and respect for the rule of law 69 C. Recommendations 73 4 Management of the justice system 74 A. Strategic planning 74 B. Financial management 79 C. Court administration 81 D. Access to information about the law and the courts 92 E. Recommendations 97 5 Independence of judges and lawyers 99 A. Judges 99 B. Lawyers 114 C. Recommendations 118 6 Criminal justice 119 A. Protection from crime 119 B. The politics of policing 125 C. The Attorney General and prosecutions 137 D. Non-state action against crime 140 E. Fair trial 142 F. Appropriate remedies and sentencing 144 G. Prisons 150 H. Recommendations 155 7 Access to justice 156 A. Knowledge of rights 156 B. Physical access 157 C. Financial access 158 D. Right to appear: Jurisdictional restrictions 164 E. Reasonable delay 169 F. Mechanisms to assert rights outside the court system 169 G. Traditional and other non-state justice systems 174 H. Recommendations 176 8 The role of development partners 178 A. An overview of development assistance to the justice sector 178 B. Transparency and accountability in development assistance 180 C. The procurement regime of the GJLOS Reform Programme 187 D. Human rights and development assistance 189 E. Recommendations 189 References 190 KENYA: JUSTICE SECTOR AND THE RULE OF LAW v List of boxes Enactment and implementation of the Sexual Offences Act 50 The Grand Regency Hotel scandal 57 The Kisya Investments case 62 Getting information from the judiciary 97 The radical surgery of the judiciary 110 Peter Nganya v. Credit Bank Ltd 166 vi KENYA: JUSTICE SECTOR AND THE RULE OF LAW Acknowledgements The preparation and completion of this report has been made possible by the collaborative efforts of a number of people and organisations to whom we owe our most sincere gratitude. Firstly, we would like to thank a number of researchers who assisted in putting together different parts of the report: Sarah Kinyanjui for her immense contribution to the criminal justice chapter; Kamau Mubuu for his great job in the preparation of the research instruments and in the the analysis of the survey data; Steadman (now Synovate) for assistance with the administration of the survey questionnaire; Nkatha Kabira, Evelyne Asaala and Wilson Kamande for their research assistance at different stages in the preparation of the research report; and Pauline Nyamweya and Kithure Kindiki for their participation in the initial stages of the research. Secondly, we would like to thank the judiciary, particularly the Honourable Chief Justice Evans Gicheru, for allowing us to engage with judicial officers in the execution of the project. The High Court Registrar, Lydia Achode, also deserves our gratitude for her assistance in linking us with the judiciary and facilitating our meetings with judicial officers. Thirdly, the staff of the Open Society Initiative for Eastern Africa (OSIEA) and the broader Open Society Initiative family for engaging with us in intense discussions on the project, their general support and superb logistical arrangements throughout the preparation of the report. Mugambi Kiai, Binaifer Nowrojee, Pascale Kambale, Ozias Tungwarara, Juliana Osodo and Mary Gathegu deserve special mention here. Fourthly, we are also indebted to OSIEA for providing the financial resources necessary to carry out this research. Finally, and not least importantly, for their generous sharing, we are grateful to all the representatives we interviewed from Kenya’s development partners, civil society organisations, the judiciary, prisons and police. We also thank those who attended the validation workshops for their comments which greatly enriched the report. KENYA: JUSTICE SECTOR AND THE RULE OF LAW vii Preface This report assesses Kenya’s justice sector with a view to pointing out ways in which it promotes the attainment of the rule of law ideal. It is carried out in the context of growing interest in issues of good governance, democracy, human rights and the rule of law in African countries and has been prepared for the Open Society Initiative for Eastern Africa (OSIEA) and the Open Society Foundations’ Africa Governance Monitoring and Advocacy Project (AfriMAP). Established in 2004 by the African foundations of the Open Society Foundations, AfriMAP has been monitoring the compliance of African states with the new commitments undertaken by the African Union since 2000 in the field of good governance, democracy, human rights and the rule of law. The report evaluates Kenya’s respect for international standards in relation to the justice sector and the rule of law. The overall objective of the report is to assess the efficacy, accountability, responsiveness and legitimacy of the justice sector in Kenya and suggest policy and legislative interventions. In particular, the report: • Assesses whether, and the extent to which, Kenya is in compliance with its international human rights obligations, including the extent of incorporation of international human rights standards into national law; • Reviews the historical evolution of the justice sector; • Reviews the practice of constitutionalism and the rule of law in Kenya, with a view to identifying shortcomings and suggesting possible solutions; • Reviews the efficacy, accountability and responsiveness of the administrative/ institutional framework for the administration of justice; • Assesses the adequacy of established frameworks in facilitating the independence, efficacy and accountability of the justice sector; • Assesses the technical capacity of actors in the justice sector; • Reviews the effectiveness, accessibility and accountability of the criminal justice system; • Establishes whether, and the extent to which, Kenyans have access to justice (physical, financial, normative and procedural); • Reviews the role of development partners in the justice sector; and • Suggests policy and legal interventions that would enhance the efficacy, accountability, responsiveness and legitimacy of the justice sector. viii KENYA: JUSTICE SECTOR AND THE RULE OF LAW The report proceeds from the premise that the attainment of the rule of law in Kenya is integral to the realisation of Vision 2030, a policy blueprint which was launched in June 2008. This policy spells out Kenya’s development aspirations in the next 20 years and specifically seeks to transform the country from a developing to a medium-income economy by the year 2030. The second pillar of this vision, the social pillar, seeks to create and build a just, cohesive society, with equitable social development, in a clean and secure environment. The political pillar also has implications for the realisation of the rule of law by aiming for ‘a democratic political system that nurtures issue-based politics, the rule of law, and … all the rights and freedoms of every individual in society’. The justice sector in Kenya has been going through major changes. The different arms of the sector have been the subject of intense interrogation and there are concrete proposals for reform of the legal and institutional framework supporting the rule of law, the justice system, the executive, the legislature, the criminal justice system and the Bar. Most notably, this research was carried out at a time when the confidence in these institutions had ebbed and after the disputed presidential poll in 2007 in which, according to the Commission of Inquriy into the Post-Election Violence (October 2008), an estimated 1 300 people were killed and 350 000 displaced. There were also gross human rights violations including physical and sexual molestation, rape and restrictions on the freedoms of movement during the two months of sporadic but violent inter- ethnic fighting pitting the Party of National Unity (PNU) and the Orange Democratic Movement (ODM) supporters against each other. The violence ended with the signing of the Agreement on the Principles of Partnership of the Coalition Government by Mwai Kibaki and Raila Odinga on 28 February 2008. This led to the establishment of a coalition government whereby Odinga of the ODM became prime minister as Kibaki of the PNU retained the presidency.
Load more

Recommended publications
  • United States Canada
    Comparative Table of the Supreme Courts of the United States and Canada United States Canada Foundations Model State judiciaries vs. independent and Unitary model (single hierarchy) where parallel federal judiciary provinces appoint the lowest court in the province and the federal government appoints judges to all higher courts “The judicial Power of the United “Parliament of Canada may … provide for the States, shall be vested in one Constitution, Maintenance, and Organization of Constitutional supreme Court” Constitution of the a General Court of Appeal for Canada” Authority United States, Art. III, s. 1 Constitution Act, 1867, ss. 101 mandatory: “the judicial Power of optional: “Parliament of Canada may … provide the United States, shall be vested in for … a General Court of Appeal for Canada” (CA Creation and one supreme Court” Art III. s. 1 1867, s. 101; first Supreme Court Act in 1875, Retention of the (inferior courts are discretionary) after debate; not constitutionally entrenched by Supreme Court quasi-constitutional convention constitutionally entrenched Previous higher appeals to the Judicial Committee of the Privy judicial Council were abolished in 1949 authority Enabling Judiciary Act Supreme Court Act, R.S.C. 1985, c. S-26 Legislation “all Cases, in Law and Equity, arising “a General Court of Appeal for Canada” confers under this Constitution” Art III, s. 2 plenary and ultimate authority “the Laws of the United States and Treaties made … under their Authority” Art III, s. 2 “Ambassadors, other public Ministers and Consuls” (orig. jur.) Jurisdiction of Art III, s. 2 Supreme Court “all Cases of admiralty and maritime Jurisdiction” Art III, s.
    [Show full text]
  • Political Parties and Party Systems in Kenya
    A Service of Leibniz-Informationszentrum econstor Wirtschaft Leibniz Information Centre Make Your Publications Visible. zbw for Economics Elischer, Sebastian Working Paper Ethnic Coalitions of Convenience and Commitment: Political Parties and Party Systems in Kenya GIGA Working Papers, No. 68 Provided in Cooperation with: GIGA German Institute of Global and Area Studies Suggested Citation: Elischer, Sebastian (2008) : Ethnic Coalitions of Convenience and Commitment: Political Parties and Party Systems in Kenya, GIGA Working Papers, No. 68, German Institute of Global and Area Studies (GIGA), Hamburg This Version is available at: http://hdl.handle.net/10419/47826 Standard-Nutzungsbedingungen: Terms of use: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Documents in EconStor may be saved and copied for your Zwecken und zum Privatgebrauch gespeichert und kopiert werden. personal and scholarly purposes. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle You are not to copy documents for public or commercial Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich purposes, to exhibit the documents publicly, to make them machen, vertreiben oder anderweitig nutzen. publicly available on the internet, or to distribute or otherwise use the documents in public. Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, If the documents have been made available under an Open gelten abweichend von diesen Nutzungsbedingungen die in der dort
    [Show full text]
  • 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.
    [Show full text]
  • Kenya Election History 1963-2013
    KENYA ELECTION HISTORY 1963-2013 1963 Kenya Election History 1963 1963: THE PRE-INDEPENDENCE ELECTIONS These were the last elections in pre-independent Kenya and the key players were two political parties, KANU and KADU. KADU drew its support from smaller, less urbanized communities hence advocated majimboism (regionalism) as a means of protecting them. KANU had been forced to accept KADU’s proposal to incorporate a majimbo system of government after being pressured by the British government. Though KANU agreed to majimbo, it vowed to undo it after gaining political power. The majimbo constitution that was introduced in 1962 provided for a two-chamber national legislature consisting of an upper (Senate) and lower (House of Representative). The Campaign KADU allied with the African People’s Party (APP) in the campaign. KANU and APP agreed not to field candidates in seats where the other stood a better chance. The Voting Elections were marked by high voter turnout and were held in three phases. They were widely boycotted in the North Eastern Province. Violence was reported in various parts of the country; four were killed in Isiolo, teargas used in Nyanza and Nakuru, clashes between supporters in Machakos, Mombasa, Nairobi and Kitale. In the House of Representative KANU won 66 seats out of 112 and gained working majority from 4 independents and 3 from NPUA, KADU took 47 seats and APP won 8. In the Senate KANU won 19 out 38 seats while KADU won 16 seats, APP won 2 and NPUA only 1. REFERENCE: NATIONAL ELECTIONS DATA BOOK By Institute for Education in Democracy (published in 1997).
    [Show full text]
  • The Appointment, Tenure and Removal of Judges Under Commonwealth
    The The Appointment, Tenure and Removal of Judges under Commonwealth Principles Appoin An independent, impartial and competent judiciary is essential to the rule tmen of law. This study considers the legal frameworks used to achieve this and examines trends in the 53 member states of the Commonwealth. It asks: t, Te ! who should appoint judges and by what process? nur The Appointment, Tenure ! what should be the duration of judicial tenure and how should judges’ remuneration be determined? e and and Removal of Judges ! what grounds justify the removal of a judge and who should carry out the necessary investigation and inquiries? Re mo under Commonwealth The study notes the increasing use of independent judicial appointment va commissions; the preference for permanent rather than fixed-term judicial l of Principles appointments; the fuller articulation of procedural safeguards necessary Judge to inquiries into judicial misconduct; and many other developments with implications for strengthening the rule of law. s A Compendium and Analysis under These findings form the basis for recommendations on best practice in giving effect to the Commonwealth Latimer House Principles (2003), the leading of Best Practice Commonwealth statement on the responsibilities and interactions of the three Co mmon main branches of government. we This research was commissioned by the Commonwealth Secretariat, and undertaken and alth produced independently by the Bingham Centre for the Rule of Law. The Centre is part of the British Institute of International and
    [Show full text]
  • Kdi School Working Paper Series Kdi School Working Paper Series
    KDI SCHOOL WORKING PAPER SERIES KDI SCHOOL WORKING PAPER SERIES Electoral Security and Legislator Attention: Evidence from the Kenyan National Assembly Debates, 2008-2017. Inbok Rhee KDI School of Public Policy and Management December, 2019 Working Paper 19-18 This paper can be downloaded without charge at: KDI School of Public Policy and Management Working Paper Series Index: http://www.kdischool.ac.kr/new/eng/faculty/working.jsp The Social Science Network Electronic Paper Collection: http://ssrn.com/abstract=3507428 * We are grateful to the KDI School of Public Policy and Management for providing financial support. Electoral Security and Legislator Attention: Evidence from the Kenyan National Assembly Debates, 2008-2017. Abstract How do African legislators divide their attention between the demands of their local constituency and their responsibilities in national parliament? Majority of studies portrays African legislators as mere rubber-stamping constituency servants. I show instead significant variation in legislator attention. Building on the literature on the electoral origins of legislator behavior, I argue that electoral pressure faced by individual legislators heavily conditions their decisions about how to allocate effort between local and national priorities. Using a novel dataset of more than 56,000 speeches made by over 400 unique legislators in the Kenyan National Assembly from 2008 to 2017, I develop speech-based measures of local versus national attention. I show that Kenyan legislators in less competitive constituencies speak more in national parliament, suggesting a greater commitment to national policymaking. Moreover, when I disaggregate data by type of speech, I find that electorally vulnerable legislators engage in locally oriented speeches, whereas those with security speak more about national topics.
    [Show full text]
  • Post Election Evaluation Draft Report
    THE POST ELECTION EVALUATION DRAFT REPORT FOR THE AUGUST 8, 2017 GENERAL ELECTION AND OCTOBER 26, 2017 FRESH PRESIDENTIAL ELECTION Independent Electoral and Boundaries Commission Your vote Your future Vision “A credible electoral management body committed to strengthening democracy in Kenya’’ Mission “To conduct free and fair elections and to institutionalize a sustainable electoral process” ii @ Copyright IEBC Kenya, 2018 The Independent Electoral and Boundaries Commission asserts right of recognition as author of the original material. The source should be attributed as Independent Electoral and Boundaries Commission Post-Election Evaluation Report For the 2017 General Election and the Fresh Presidential Election, 2018. Produced by: The Independent Electoral and Boundaries Commission Web address: PEE Report.iebc.or.ke/2018 IEBC website: www.iebc.or.ke Feedback and enquiries: Feedback and enquiries on this report is welcome and should be directed to the contact officer. Contact officer: Chief Executive Officer, Anniversary Towers, 6th Floor, University Way. P.O. Box 4545371 – 00100, Nairobi, Kenya Telephone: +254 20 – 2877000 Email: [email protected] Twitter: @iebckenya Facebook: Facebook.com/iebckenya iii TABLE OF CONTENTS List of figures ..................................................................................................................... x ACRONYMS AND ABBREVIATIONS ................................................................................. xi EXECUTIVE SUMMARY ....................................................................................................
    [Show full text]
  • The Kenyan Crisis: How And
    The Kenyan Crisis: Post December 2007 Elections Renu Modi Seema Shekhawat Working Paper No: 1 Centre for African Studies Area Studies Building Behind Marathi Bhasha Bhavan University of Mumbai Vidyanagari, Santacruz (E) Mumbai: 400 098. E-mail: [email protected] [email protected] 1 Contents Acronyms 03 Resume 04 Introduction 05 The Background 05 The Kibaki Administration 08 The Governance Crisis 11 December 2007 Elections 13 Repercussions 18 Deep Rooted Reasons 19 Authoritarian ‘Democratic’ Structures 20 Unrestrained Powers of the President 20 Lack of Space for the Opposition 21 Popular Disillusionment 21 Political Violence 22 The Ethnicity Factor 23 The Economic Factor 24 Colonial Legacy 26 Conclusion 28 Endnotes and References 29 Tables Table 1: 27 December 2002 Election 07 Table 2: November 21, 2005 Constitutional Referendum 11 Table 3: Composition of the 10th Parliament 14 2 Acronyms ICG International Crisis Group IMF International Monetary Fund KANU Kenya African National Union NARC National Rainbow Coalition ODM Orange Democratic Movement ODM-K Orange Democratic Movement-Kenya 3 Resume Renu Modi Renu Modi is a lecturer and Director of the Department of African Studies, University of Mumbai. She is a political scientist and graduated from the Lady Shree Ram College for Women, Delhi University. She received her PhD. from the Centre for African Studies, School of International Studies, Jawaharlal Nehru University, New Delhi. Her research interests include issues of development- displacement and livelihood reconstitution at resettlement sites and contemporary political, economic and social issues from a gendered perspective in the Afro- Asian context. Seema Shekhawat Seema Shekhawat holds a doctoral degree in Political Science from the University of Jammu, India.
    [Show full text]
  • 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.
    [Show full text]
  • Curriculum Vitae
    CURRICULUM VITAE The Hon. Lady Justice Effie Owuor Judge of Appeal (Retired) LLB Honours, University of East Africa, Dar-Es-Salaam P.O. Box 54392-00200 Telephone 254-20-2700257 Fax 254-20-4450252 Email:[email protected] Special Awards National Recognition, EBS (Elder of Burning Spear) Recognized by the UN Secretary General as an Advocator, Campaigner and Supporter of all Children in the World in the UNICEF’S Millennium State of the World’s Children Report . September 2005 1 Profile Born on 21st September, 1943 in Kakamega, Western Province of Kenya. A graduate of the University of East Africa, Dar-Es-Salaam with Bachelor of Laws degree. Has undertaken various professional and judicial seminars on law reform, women’s rights and criminal law. A distinguished career in the Attorney General’s chambers and Judiciary spanning over a period of 33 years. Rising through the ranks from a Resident Magistrate to a Judge of the Court of Appeal. The first lady to be appointed as a Puisne Judge and Judge of the Court of Appeal in the Republic of Kenya. A self-motivated retired Judge of Appeal with a wide range of experience in family, women, children, marital and succession law and has undertaken several consultancies leading to legislations in the aforementioned areas of law. Able to work on own initiative and in collaboration with technical teams from various professions. Proven leadership skills involving managing, developing and motivating teams to achieve their objectives. Dedicated to maintaining high quality standards and achieving set targets. Key public positions held: - Commissioner of Kenya Law Reform Commission - Founding Member and Chairperson of the Kenya Women’s Judges Association, past patron of the association.
    [Show full text]
  • 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.
    [Show full text]
  • Who Owns the Land? Blood and Soil Issues in the Kenyan Rift Valley
    WHO OWNS THE LAND? BLOOD AND SOIL ISSUES IN THE KENYAN RIFT VALLEY PART 1: The passion with which millions of citizens valued their presidential vote in the stolen 2007 presidential elections can be reflected in scenes of the bloody post-election clashes today that engulfed Rift Valley, Nyanza, Coast, Nairobi, Western and to a less extent in other parts of the country. Nakuru was the latest epicenter of inter ethnic murders. The violent reactions to rigged elections may reflect the pain of deep and historically rooted injustices some of which predate Kenya’s independence in 1963. They are in fact motivated and exacerbated by landlessness, joblessness, and poverty believed to be heavily contributed towards by the prevailing political status quo that has dominated Kenya since independence. This is a system that has continuously perpetrated, in successive fashion, socio- economic injustices that have been seamlessly transferred from one power regime to the next. The Land issue With a fast growing population in Kenya, limited resources including land and jobs, have severely been put in extreme pressure. Responsive political operatives cognizant of this reality have appreciated the importance of incorporating progressive policies that seek to aggressively address poverty, landlessness, unequal distribution of resources and unemployment, as a matter of priority (in their party manifestoes) if any social stability is to be maintained in Kenya. Without doubt, the opposition party ODM sold an attractive campaign package that sought to address historic land injustices, unemployment, inequitable resource sharing and poverty through a radical constitutional transformation, under the framework of the people-tailored Bomas Constitution Draft.
    [Show full text]