7 Records out of 22207 Records

Conceptualisation and operationalisation of the right to a fair trial in criminal justice in Kenya

Author: Ouma, Jack Busalile Mwimali

Awarding University: University of Birmingham, England

Level : PhD

Year: 2013

Holding Libraries: ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; Institute of Commonwealth Studies Library ;

Subject Terms: Criminal justice ; Trials ; Constitutions ; Criminal law ; Judicial process ;

Abstract:

This thesis explores issues concerning the conceptualisation and operationalisation of the right to a fair trial in the Kenyan criminal justice system. In particular, it looks at how and why there have been many difficulties with the implementation of this universal set of values that have been recognised since the adoption of the formal legal system in Kenya, and which have been enshrined in the Constitution since independence. It addresses a number of overarching questions. First, it identifies the factors that hindered the full realisation of the right to a fair trial. Secondly, it enquires into whether the shortcomings of the recently repealed Constitution in that regard have been fully addressed by the new Constitution adopted in 2010. Thirdly, it identifies and analyse the impact of factors outside the formal law which may have affected the practical operation of certain core elements of the right to a fair trial. Finally, in light of the above, it explores a number of approaches that might be used to address these other factors so as to help achieve at least a better, enforcement of fair trial rights in the country.

Rethinking the practice of representative democracy : a case for increased public involvement in the law-making process in Kenya

Author: Sitienei, James Kiplagat

Awarding University: University of Nairobi, Kenya

Level : LLM

Year: 2012

Holding Libraries: University of Nairobi Jomo Kenyatta Memorial Library ;

Subject Terms: Political representation/Democracy/Judicial process/Legislation/Kenya Constitution 2010/Constitutions/Kenya National Assembly Standing Orders/Public opinion/ ;

Abstract:

Every democracy ought to have a mechanism through which the public participate in the management of public affairs, including the law-making process. Sovereignty, including that of Parliament, belongs to the people but owing to the impracticability of every citizen participating in the legislative process; their representatives in Parljament represent their views. Kenya, a representative democracy has adopted this model. However, the 2010 Constitution of Kenya introduces aspects of participatory democracy by requiring that the public be involved in, among others, the legislative process. These provisions are yet to be fully implemented since a framework to facilitate public participation has not been put in place. The practice prior to the new constitutional dispensation still obtains, although some attempts have been made to allow the participation of the public. That said, various pieces of legislation have been passed without public input. The lobbying preceding such legislation has invariably put Members of Parliament in a dilemma between serving their own interests and those of the electorate. The concept of public participation is not entirely new; international instruments recognise the right to participate in public affairs, while some countries have put in place mechanisms for public participation in the law-making process and in some instances, the court has nullified legislation passed without the requisite participation of the public. Although the Kenyan Parliament has been strengthened over the years, it has not been responsive to public view. This paper evaluates the existing mechanisms for public participation by examining the Constitution, Standing Orders of the National Assembly and the practices in place for public involvement in the legislative process. The evaluation is based on an analysis of print and electronic material and on the basis of data generated. This paper identifies the existing avenues for public participation and recommends measures to give effect to constitutional provisions on public participation in the law-making process.

The effects of statutory justice approaches on traditional conflict management mechanisms : the case of Borana Community in Upper Eastern Kenya between 1963-2011

Author: Lakicha, Yusuf Ali

Awarding University: University of Nairobi, Kenya

Level : MA

Year: 2012

Holding Libraries: University of Nairobi Jomo Kenyatta Memorial Library ;

Subject Terms: Judicial process ; Customary law ; Conflict resolution ; Alternative dispute resolution ; Boran (African people) ; Pastoralists ; North Eastern Kenya ;

Abstract:

Northern Kenya is an arid part of Kenya, inhabited by the pastoralists who traverse the vast region on seasonal migrations as they seek sufficient pasture and water for their livestock. The harsh weather conditions and the shrinking range resources base has made pastoralists inhabitants of the region go through severe hardships in their survival manoeuvres to protect their lives and that of their livestock from the threats of the drought. This survival manoeuvers has occasionally resulted in conflicts among the communities. The conflicts of late have had numerous casualties, due to proliferation of small arms and weapons from the neighbouring unstable countries like Somalia. Due to the regions marginalization most state institutions are not adequately equipped, staffed or facilitated to handle their respective service delivery to the people. In particular the judiciary is among the least developed state institutions in the region. The courts only exist at district headquarters and are poorly staffed, with cases of one magistrate being shared by two or more districts being common. Hence the judiciary has little effect as deterrence to the perpetrators of conflict. The study sought to establish historical and contemporary factors that has contributed to conflicts among the pastoral communities in North Eastern Kenya and assess how these communities realise justice under customary laws and evaluate the effectiveness of this traditional justice system and how it should be formally included in the national policy to provide for a legal pluralism to ease pressure on the formal justice system and enhance access to justice. This study against all this odds facing the Northern Kenya region shows how the indigenous Borana community has alleviated these conflicts over the range resources through their institutions of range resources conflict management. These institutions which have checks and balances and defined division of roles have been preserved by the community and are active to this day. This is what has made their pastoralism livelihood viable and feasible despite the numerous challenges. The study further demonstrates how the justice regimes of the indigenous community appeals to their socio- political organization and demographic dynamics. Their justice system is restorative and seeks at all times to restore and repair the broken victim, offender and community relationships. The formal justice systems on the other hand is seen as alien to their value systems and does not take into account how the local pastoralist's communities understand and define crime and resolve disputes or conflicts. The study uses the restorative justice theory which builds reconciliation and reintegration and restoration of offender back into the society as opposed to the formal justice system which is retributive, punitive and aimes to make offenders suffer as much as the victim if not more. This study demonstrates analytically the socio-political and socio-legal aspects that characterize the customary and formal justice institutions and shows the existence of tension between them that needs to be addressed through a legal framework that accommodates the two in one that is legal pluralism. This is to allow the effective operations of customary justice systems without fear of contradicting the formal systems, and to have the customary restorative justice systems decisions of conflict resolutions and range resources management as binding upon the state.

Relationship between the International Criminal Court and Truth Commission : the case of Transitional Justice in post conflict Kenya

Author: Lukwo, Damaris C

Awarding University: University of Nairobi, Kenya

Level : MA

Year: 2012

Holding Libraries: University of Nairobi Jomo Kenyatta Memorial Library ;

Subject Terms: Conflicts ; Post election violence ; International Criminal Court ; Truth Justice and Reconciliation Commission ; Justice ; Judicial process ;

Abstract:

This thesis examines the relationship between the International Criminal Court and Truth Justice and Reconciliation Commission with a specific focus on transitional justice in post conflict Kenya. The first chapter set lays down the background of the study. The second chapter explains the concept of transitional justice and examines its relevance in post conflict states. It looks at the different elements of a comprehensive transitional justice policy among them criminal prosecutions, truth commissions, reparations and reconciliation. It finally proposes that the different transitional justice mechanisms should work together. The third chapter looks at the post conflict situation in Kenya analyzing the history of the conflict. The objective of this chapter is to give the reader an understanding of the conflict in Kenya thus necessitating transitional justice in Kenya. This chapter is concluded with the introduction of the idea of conflict transformation. Chapter four makes an analysis of the International Criminal Court and Truth Justice and Reconciliation Commission in the context of Post Conflict Kenya. It further determines and analyzes the scope of crimes for the two processes and how they complement each other. The final chapter concludes that truth commissions and the international court are two sides of the same coin in the sense that they plays a complementary role to each other.

Child sexual abuse : challenges of prosecuting child sex offenders in Nairobi

Author: Bunusu, Benson Shamala

Awarding University: University of Nairobi, Kenya

Level : MA

Year: 2011

Holding Libraries: University of Nairobi Jomo Kenyatta Memorial Library ;

Subject Terms: Nairobi, Kenya ; Child abuse and neglect ; Sex offenders ; Pedophilia ; Judicial process ;

Abstract:

Prosecution of child sex offenders is one way of putting in practice provisions that are contained in the Sexual Offences Act. The Sexual Offences Act has excellent provisions that could be utilized to protect children from sexual violence, however if the challenges of prosecutionSare not addressed, the provisions in this Act remain just good laws. The study recognized that despite having very good laws as contained in Sexual Offences Act, deterrence is yet to be reached as witnessed by an upsurge in child sexual abuse cases reported every day. The main objective of the study was to examine the major challenges encountered while prosecuting child sex offenders in Nairobi with the view of finding solutions to those challenges. It also aimed at identifying some of the difficulties experienced by sexually abused children while going through the legal system and analyzed the inter-linkages of various stakeholders when handling these cases. Since there are several players involved in handling child sexual abuse cases, the study used a heterogeneous sample of 45 respondents that was purposively selected to give key information to the topic under study. In-depth interviews and questionnaires were the two main data collection tools used. The study yielded qualitative data as the respondents shared their personal experiences. There are several challenges that need senous attention if justice for sexually abused children is to be realized. There is need for a concerted effort by all players in this field to ensure that sexually abused children receive comprehensive services in a sensitive manner. The difficulties children experience result from the way they are handled after the abuse more than the abuse itself. Several recommendations have been made on the basis of these findings. The government and other agencies involved in children matters need to see to it that there is a unified protocol of handling child sex abuse cases among all the concerned parties. Some of the recommendations need to be effected immediately as a matter of urgency.

The ultra vires rule on its death-bed : the rule of law as the basis of judicial review in Kenya

Author: Kaluma, Peter Opondo

Awarding University: University of Nairobi, Kenya

Level : LLM

Year: 2008

Holding Libraries: University of Nairobi Law Campus Library ;

Subject Terms: Judicial process/Law ;

Abstract:

ABSTRACT NOT AVAILABLE

The Kenya sugar industry and WTO requirements : challenges,problems and prospects

Author: Lubulellah, Anthony Milimu

Awarding University: University of Nairobi, Kenya

Level : LLM

Year: 2007

Holding Libraries: University of Nairobi Law Campus Library ;

Subject Terms: International trade ; Judicial process ; World Trade Organisation ; Sugar industry ;

Abstract:

As many developing countries, Kenya has problems associated with its participation in the in history and have seen efforts made to address the same through policy and legal measures at international law and domestically within Kenya. The emergence of a system of preferences in international trade was one such effort to address problems and challenges of developing states . kenya, which because of administrative and economic policy weaknesses are not able to participate in international trade on a reciprocal basis as contemplated by the WTO legal regime. This study is therefore meant to inform on the juridical status of Kenya's international trade obligations under the WTO legal regime against the background of the problems and challenges presented to Kenya with specific focus on international trade in sugar. It is recognized that the WTO escape clauses which allow developing countries a leeway from the difficulties presented by the said system that is centered on the principles of non-discrimination and reciprocity. The challenge for Kenya lies its inability to take full benefit of SDT in a meaningful way consistent with its development objectives and aspirations and in conformity with WTO tenets .: Until Kenya overcomes its structural, administrative and economic difficulties, the WTO system is questioned more on the basis of its perceived inequity and its onerous impact on Kenya than its legal content The impact of a legal system, it is submitted, cannot be examined effectively outside In words rules, not being value neutral, must be contextually evaluated to discern their actual objectives and impacts in socio-economic and political terms. It is not for a moment herein suggested that trade can or should be conducted on the basis of unilateral actions of sovereign states. The dangers of operating outside a system of rules are clear from the state of international trade in the pre-Second World War period when unregulated inter-state competition culminated in beggar thy neighbour policies that eventually led to an economic depression'. Although it is ultimately suggested that Kenya's international sugar trade can benefit more through embracing reciprocity and competition than through unilateral preferences or safeguards, the timing of market liberalization is critical meaning Kenya should be allowed time to adjust to the demands of liberalized international sugar trade. A social economic impact examination of Kenya's sugar industry players leads to the conclusion that there is an inexorable connection between local economies in the sugar cane growing areas and the international sugar trade regimes. Liberalization of international sugar trade and the attendant difficulties faced by Kenya in particular in taking advantage of escape arrangements within the WTO are central to this study which also offers recommendations to address the challenges. The withdrawal of Kenya's membership of the WTO under Article XV of the WTO agreement is not considered as a viable option. The conclusion is reached that there exists a case for the strengthening of SDT mechanism within the WTO, and Kenya should find comfort and solutions to any challenges and problems that it may face within The WTO system.