Protection of internally displaced persons in Kenya under the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of 2012: an appraisal
- Authors: Juma, Laurence
- Date: 2018
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126122 , vital:35851 , https://hdl.handle.net/10520/EJC-107c9cba58
- Description: This article discusses Kenya’s Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of 2012, which is among the very few national legislations globally that addresses the plight of internally displaced persons. While it records the momentous achievement in creating a viable and legally enforceable legislative framework for the protection of IDPs, the article highlights some of the areas that could be improved for the Act to realise its promise. It notes for example the inchoate manner in which institutions are created and the lack of resources. The article while isolating these challenges also suggests numerous ways in which such challenges can be overcome. It underscores the need for harmonised legal regimes, improvement of data collection and proper monitoring programmes, all which can be achieved and strengthened by a supportive political establishment as well as strategic amendments to various provisions of the Act.
- Full Text: false
- Date Issued: 2018
- Authors: Juma, Laurence
- Date: 2018
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126122 , vital:35851 , https://hdl.handle.net/10520/EJC-107c9cba58
- Description: This article discusses Kenya’s Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act of 2012, which is among the very few national legislations globally that addresses the plight of internally displaced persons. While it records the momentous achievement in creating a viable and legally enforceable legislative framework for the protection of IDPs, the article highlights some of the areas that could be improved for the Act to realise its promise. It notes for example the inchoate manner in which institutions are created and the lack of resources. The article while isolating these challenges also suggests numerous ways in which such challenges can be overcome. It underscores the need for harmonised legal regimes, improvement of data collection and proper monitoring programmes, all which can be achieved and strengthened by a supportive political establishment as well as strategic amendments to various provisions of the Act.
- Full Text: false
- Date Issued: 2018
Protection of rights of urban refugees in Kenya: revisiting Kituo Cha Sheria v The Attorney General
- Authors: Juma, Laurence
- Date: 2018
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/125174 , vital:35740 , DOI: 10.25159/2522-6800/3291
- Description: This article discusses the judgment in the landmark case of Kituo Cha Sheria and Others v Attorney General in the light of the emerging rights jurisprudence in the area of refugee rights. It also explores the impact the judgment could have on the articulation of the rights of urban refugees in Kenya. Based on the assumption that Kenya’s 2010 Constitution provides an opportunity for the robust enforcement of rights, the article analyses the key rights and protection imperatives that were at the centre of the dispute. These include the right to dignity, freedom of movement and to work, and also the principle of refoulement. These rights are at the core of the protection agenda for urban refugees.
- Full Text: false
- Date Issued: 2018
- Authors: Juma, Laurence
- Date: 2018
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/125174 , vital:35740 , DOI: 10.25159/2522-6800/3291
- Description: This article discusses the judgment in the landmark case of Kituo Cha Sheria and Others v Attorney General in the light of the emerging rights jurisprudence in the area of refugee rights. It also explores the impact the judgment could have on the articulation of the rights of urban refugees in Kenya. Based on the assumption that Kenya’s 2010 Constitution provides an opportunity for the robust enforcement of rights, the article analyses the key rights and protection imperatives that were at the centre of the dispute. These include the right to dignity, freedom of movement and to work, and also the principle of refoulement. These rights are at the core of the protection agenda for urban refugees.
- Full Text: false
- Date Issued: 2018
The principle of complementarity and hybrid courts: the case of the Special Criminal Court for the Central African Republic
- Juma, Laurence, Chigowe, Lloyd
- Authors: Juma, Laurence , Chigowe, Lloyd
- Date: 2018
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/125219 , vital:35747 , https://hdl.handle.net/10520/EJC-110b0e557f
- Description: This paper seeks to locate the place of hybrid courts in the Rome Statute’s complementarity model using the Central African Republic’s Special Courts as a case study. The introduction of the Special Courts when the International Criminal Court has already intervened in Central African Republic has raised some concern regarding the Special Courts relationship with the International Criminal Court, especially whether it may defeat the complementarity regime established under article 17 of the Rome Statute. This paper seeks to dispel this concern. It argues that the creation of the Special Criminal Court should never be perceived as an indictment to the Rome Statute principle of complementarity, but instead a useful attempt to close the impunity gap that has arisen as a result of the collapse or dysfunctionality of national criminal justice system.
- Full Text: false
- Date Issued: 2018
- Authors: Juma, Laurence , Chigowe, Lloyd
- Date: 2018
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/125219 , vital:35747 , https://hdl.handle.net/10520/EJC-110b0e557f
- Description: This paper seeks to locate the place of hybrid courts in the Rome Statute’s complementarity model using the Central African Republic’s Special Courts as a case study. The introduction of the Special Courts when the International Criminal Court has already intervened in Central African Republic has raised some concern regarding the Special Courts relationship with the International Criminal Court, especially whether it may defeat the complementarity regime established under article 17 of the Rome Statute. This paper seeks to dispel this concern. It argues that the creation of the Special Criminal Court should never be perceived as an indictment to the Rome Statute principle of complementarity, but instead a useful attempt to close the impunity gap that has arisen as a result of the collapse or dysfunctionality of national criminal justice system.
- Full Text: false
- Date Issued: 2018
A dynamic approach to assess the International Criminal Court's performance in the Kenya cases
- Juma, Laurence, Khamala, C A
- Authors: Juma, Laurence , Khamala, C A
- Date: 2017
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/125241 , vital:35749 , https://hdl.handle.net/10520/EJC-e9dcefddf
- Description: Victims of crimes against humanity perpetrated during Kenya’s post-2007 conflicts may feel aggrieved by the International Criminal Court’s discontinuance of all Kenya cases without having found the suspects either culpable or non-culpable. Neither did the suspects benefit from acquittals. Unprecedentedly, Ruto and Sang’s charges were vacated at half-time. Cases against other suspects were withdrawn. Given the circumstances which led to the ICC’s intervention in the Kenyan situation, this paper argues that in lieu of either quantitative or qualitative studies, arguments of various proxy approaches for evaluating judicial performance, are problematic. Neither judicial independence, rule-compliance, community of purpose, nor even institutional design, adequately measure judicial performance. Besides interrogating limitations of using such proxies, the paper appraises the merits of constructing a modified version of the goal-based approach. It will demonstrate that by incorporating both process-oriented as well as strategic constituency models, a more dynamic evaluative methodology can be developed for measuring the ICC’s performance in the Kenya cases.
- Full Text: false
- Date Issued: 2017
- Authors: Juma, Laurence , Khamala, C A
- Date: 2017
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/125241 , vital:35749 , https://hdl.handle.net/10520/EJC-e9dcefddf
- Description: Victims of crimes against humanity perpetrated during Kenya’s post-2007 conflicts may feel aggrieved by the International Criminal Court’s discontinuance of all Kenya cases without having found the suspects either culpable or non-culpable. Neither did the suspects benefit from acquittals. Unprecedentedly, Ruto and Sang’s charges were vacated at half-time. Cases against other suspects were withdrawn. Given the circumstances which led to the ICC’s intervention in the Kenyan situation, this paper argues that in lieu of either quantitative or qualitative studies, arguments of various proxy approaches for evaluating judicial performance, are problematic. Neither judicial independence, rule-compliance, community of purpose, nor even institutional design, adequately measure judicial performance. Besides interrogating limitations of using such proxies, the paper appraises the merits of constructing a modified version of the goal-based approach. It will demonstrate that by incorporating both process-oriented as well as strategic constituency models, a more dynamic evaluative methodology can be developed for measuring the ICC’s performance in the Kenya cases.
- Full Text: false
- Date Issued: 2017
Apprehension of bias and the spectacle of the fair-minded observer: a survey of recent commonwealth and South African decisions on pre-judgment
- Okpaluba, Chuks, Juma, Laurence
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126107 , vital:35850 , http://specjuris.ufh.ac.za/apprehension-bias-and-spectacle-fair-minded-observer-survey-recent-commonwealth-and-south-african
- Description: A perusal of contemporary Commonwealth case law reveals that allegations of bias or apprehension of bias tend to revolve around the pecuniary or other interests of the Judge arising from kinship, previous relationship, or association with party or counsel.1Apparent bias could also be inferred from the judge‘s conduct or utterances, especially, his/her criticisms or cumulative criticisms of a party during proceedings or in adjudication.2In other instances, a judge‘s previous knowledge or association with the case in court, or of an important witness, may disqualify him/her from sitting or passing judgment in the case.3
- Full Text:
- Date Issued: 2014
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126107 , vital:35850 , http://specjuris.ufh.ac.za/apprehension-bias-and-spectacle-fair-minded-observer-survey-recent-commonwealth-and-south-african
- Description: A perusal of contemporary Commonwealth case law reveals that allegations of bias or apprehension of bias tend to revolve around the pecuniary or other interests of the Judge arising from kinship, previous relationship, or association with party or counsel.1Apparent bias could also be inferred from the judge‘s conduct or utterances, especially, his/her criticisms or cumulative criticisms of a party during proceedings or in adjudication.2In other instances, a judge‘s previous knowledge or association with the case in court, or of an important witness, may disqualify him/her from sitting or passing judgment in the case.3
- Full Text:
- Date Issued: 2014
Unclogging the wheels: how the shift from politics to law affects Africa's relationship with the international system
- Authors: Juma, Laurence
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127123 , vital:35958 , https://heinonline.org/HOL/Page?handle=hein.journals/tlcp23amp;div=17amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: Gone are the days when scholars debated whether international law was really law and whether the adjudicatory organs of the international system could effectuate the demands of the international rule of law. 1 This old time debate has, in recent times, given way to temperate and yet decisive acknowledgement of the legal authority of institutions resident within the international system.
- Full Text: false
- Date Issued: 2014
- Authors: Juma, Laurence
- Date: 2014
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127123 , vital:35958 , https://heinonline.org/HOL/Page?handle=hein.journals/tlcp23amp;div=17amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: Gone are the days when scholars debated whether international law was really law and whether the adjudicatory organs of the international system could effectuate the demands of the international rule of law. 1 This old time debate has, in recent times, given way to temperate and yet decisive acknowledgement of the legal authority of institutions resident within the international system.
- Full Text: false
- Date Issued: 2014
An overview of normative frameworks for the protection of development-induced IDPs in Kenya.
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127112 , vital:35957 , https://doi.org/10.1163/17087384-12342016
- Description: Based on the assumption that development induced displacement brings new challenges that the existing protection frameworks may not be aptly suited to deal with, this article analyses how the existing laws have met this challenge and the prospects for further improvement. While its focus is on Kenya, it evaluates the normative quality of protection and standards offered by regional instruments against the existing, as well emerging, parameters for implementation at the domestic level. In this regard, the article examines the propriety of Kenya’s newly promulgated law on internal displacement in providing for protection for the development induced IDPs, the implementation programme that it establishes and its prospects for furthering the vision of the UN Guiding Principles on Internally Displaced and other regional instruments.
- Full Text:
- Date Issued: 2013
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127112 , vital:35957 , https://doi.org/10.1163/17087384-12342016
- Description: Based on the assumption that development induced displacement brings new challenges that the existing protection frameworks may not be aptly suited to deal with, this article analyses how the existing laws have met this challenge and the prospects for further improvement. While its focus is on Kenya, it evaluates the normative quality of protection and standards offered by regional instruments against the existing, as well emerging, parameters for implementation at the domestic level. In this regard, the article examines the propriety of Kenya’s newly promulgated law on internal displacement in providing for protection for the development induced IDPs, the implementation programme that it establishes and its prospects for furthering the vision of the UN Guiding Principles on Internally Displaced and other regional instruments.
- Full Text:
- Date Issued: 2013
Human Rights and Conflict Transformation in Africa
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , book
- Identifier: http://hdl.handle.net/10962/127449 , vital:36012 , ISBN 9789956790418 , http://www.africanbookscollective.com/books/human-rights-and-conflict-transformation-in-africa
- Description: This study maps the interactions between human rights norms and values, on the one hand, and conflict resolution, post–conflict peace-building and reconstruction, on the other. It advances the view both from a theoretical and practical standpoint, that human rights have a role to play throughout the life of any conflict: from the pre-conflict to the post-conflict and reconstruction stages. Identifying entry points for human rights in the pre-conflict stage leading up to the establishment of the rule of law and societal reconstruction after the conflict, this book uses Sierra Leone and Democratic Republic of Congo experiences to illustrate the obstacles, the successes, and the significance of human rights norms to the overall peace agenda in societies afflicted by conflict.
- Full Text: false
- Date Issued: 2013
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , book
- Identifier: http://hdl.handle.net/10962/127449 , vital:36012 , ISBN 9789956790418 , http://www.africanbookscollective.com/books/human-rights-and-conflict-transformation-in-africa
- Description: This study maps the interactions between human rights norms and values, on the one hand, and conflict resolution, post–conflict peace-building and reconstruction, on the other. It advances the view both from a theoretical and practical standpoint, that human rights have a role to play throughout the life of any conflict: from the pre-conflict to the post-conflict and reconstruction stages. Identifying entry points for human rights in the pre-conflict stage leading up to the establishment of the rule of law and societal reconstruction after the conflict, this book uses Sierra Leone and Democratic Republic of Congo experiences to illustrate the obstacles, the successes, and the significance of human rights norms to the overall peace agenda in societies afflicted by conflict.
- Full Text: false
- Date Issued: 2013
Protection of development-induced internally displaced persons under the African Charter: the case of the Endorois community of Northern Kenya
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127100 , vital:35955 , https://heinonline.org./HOL/Page?handle=hein.journals/ciminsfri46amp;div=15amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: The discourse on development-induced displacement has highlighted the enormity of problems faced by communities who are forcefully removed to create room for development projects, while at the same time, exposed the insularity of national and international legal frameworks for their protection. Using the case of Centre for Minority Rights Development (CEMIRIDE) on behalf of the Endorois Community v Kenya (No 276/200), decided by the African Commission on Human and People's Rights in November 2009, this article analyses the support that regional and continental rights enforcement mechanisms could provide to the protection of IDPs, particularly those displaced by development projects.
- Full Text:
- Date Issued: 2013
- Authors: Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127100 , vital:35955 , https://heinonline.org./HOL/Page?handle=hein.journals/ciminsfri46amp;div=15amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: The discourse on development-induced displacement has highlighted the enormity of problems faced by communities who are forcefully removed to create room for development projects, while at the same time, exposed the insularity of national and international legal frameworks for their protection. Using the case of Centre for Minority Rights Development (CEMIRIDE) on behalf of the Endorois Community v Kenya (No 276/200), decided by the African Commission on Human and People's Rights in November 2009, this article analyses the support that regional and continental rights enforcement mechanisms could provide to the protection of IDPs, particularly those displaced by development projects.
- Full Text:
- Date Issued: 2013
The South African Defence Review (2012) and private military/security companies (PMSCs): heralding a shift from prohibition to regulation?
- Juma, Laurence, Tsabora, James
- Authors: Juma, Laurence , Tsabora, James
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126132 , vital:35852 , https://doi.org/10.17159/1727-3781/2013/v16i4a2415
- Description: This article discusses the possibility of South Africa enacting a new law regulating private military/security companies (PMSCs) beyond the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006. It argues that such a possibility arises from the policy direction expressed in the Defence Review of 2012, and the recent developments at the international level, which indicate a shift towards accommodation of PMSCs as legitimate players in the security sector. The article surveys the current state of national and international law relating to PMSCs and illustrates how the emerging shift from prohibition to regulation has affirmed the need for legislative intervention in this field. It concludes that since the future is on the side of regulation and not prohibition, legislation that furthers the policy agenda envisioned by the Defence Review 2012 may be the best tool to unlock the inhibitions of the past and create a viable climate for reframing the debate on domestic law governing private militarism in South Africa.
- Full Text:
- Date Issued: 2013
- Authors: Juma, Laurence , Tsabora, James
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/126132 , vital:35852 , https://doi.org/10.17159/1727-3781/2013/v16i4a2415
- Description: This article discusses the possibility of South Africa enacting a new law regulating private military/security companies (PMSCs) beyond the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act of 2006. It argues that such a possibility arises from the policy direction expressed in the Defence Review of 2012, and the recent developments at the international level, which indicate a shift towards accommodation of PMSCs as legitimate players in the security sector. The article surveys the current state of national and international law relating to PMSCs and illustrates how the emerging shift from prohibition to regulation has affirmed the need for legislative intervention in this field. It concludes that since the future is on the side of regulation and not prohibition, legislation that furthers the policy agenda envisioned by the Defence Review 2012 may be the best tool to unlock the inhibitions of the past and create a viable climate for reframing the debate on domestic law governing private militarism in South Africa.
- Full Text:
- Date Issued: 2013
Waiver of the right to judicial impartiality: comparative analysis of South African and Commonwealth jurisprudence
- Okpaluba, Chuks, Juma, Laurence
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127138 , vital:35960 , https://0-hdl.handle.net.wam.seals.ac.za/10520/EJC153154
- Description: This paper investigates whether judicial independence and impartiality entrenched in written constitutions and recognised by the common law as fundamental requirements of fair administration of justice can be subjected to the private law principles of waiver, estoppel or acquiescence. In an attempt to answer this question, the paper suggests that the starting point should be the interrogation of whether the right alleged to be waived emanates from the constitution or administrative law. At common law, a right can be waived, insofar as the party involved had knowledge of the right and failed to assert it.
- Full Text: false
- Date Issued: 2013
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2013
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127138 , vital:35960 , https://0-hdl.handle.net.wam.seals.ac.za/10520/EJC153154
- Description: This paper investigates whether judicial independence and impartiality entrenched in written constitutions and recognised by the common law as fundamental requirements of fair administration of justice can be subjected to the private law principles of waiver, estoppel or acquiescence. In an attempt to answer this question, the paper suggests that the starting point should be the interrogation of whether the right alleged to be waived emanates from the constitution or administrative law. At common law, a right can be waived, insofar as the party involved had knowledge of the right and failed to assert it.
- Full Text: false
- Date Issued: 2013
Chieftainship succession and gender equality in Lesotho: negotiating the right to equality in a jungle of pluralism
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127067 , vital:35951 , https://heinonline.org/HOL/Page?handle=hein.journals/tjwl22amp;div=11amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: Women constitute about 51% of Lesotho's population 1 and enjoy a higher literacy rate than men. 2 They are also the backbone of a society that for several hundreds of years provided male labor to South Africa's farms and gold mines.3 However, Basotho women are generally excluded from mainstream politics and are discriminated against in almost all spheres of socioeconomic life. This exclusion, marginalization, and discrimination have been largely blamed on patriarchy and entrenched traditional norms, both of which are sustained by a plural legal system that has seemingly remained insular to developments around the globe. 4
- Full Text:
- Date Issued: 2012
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127067 , vital:35951 , https://heinonline.org/HOL/Page?handle=hein.journals/tjwl22amp;div=11amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: Women constitute about 51% of Lesotho's population 1 and enjoy a higher literacy rate than men. 2 They are also the backbone of a society that for several hundreds of years provided male labor to South Africa's farms and gold mines.3 However, Basotho women are generally excluded from mainstream politics and are discriminated against in almost all spheres of socioeconomic life. This exclusion, marginalization, and discrimination have been largely blamed on patriarchy and entrenched traditional norms, both of which are sustained by a plural legal system that has seemingly remained insular to developments around the globe. 4
- Full Text:
- Date Issued: 2012
Human rights and post-conflict peace building in the Democratic Republic of Congo
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128438 , vital:36109 , https://0-hdl.handle.net.wam.seals.ac.za/10520/EJC192855
- Description: This article deals with normative issues that arose in the post-conflict peace-building processes in the Democratic Republic of Congo (DRC). It undertakes an historical review of the major episodes in the DRC peace process and highlights how these episodes yielded to the establishment of the interim government in 2003 and the enactment of the current constitution. It mainly highlights the proprietary consequences of the Lusaka peace Accord, the transformative aspects of the 2005 Constitution and the role that international organs, especially the ICC, have played in consolidating peace in the DRC.
- Full Text: false
- Date Issued: 2012
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128438 , vital:36109 , https://0-hdl.handle.net.wam.seals.ac.za/10520/EJC192855
- Description: This article deals with normative issues that arose in the post-conflict peace-building processes in the Democratic Republic of Congo (DRC). It undertakes an historical review of the major episodes in the DRC peace process and highlights how these episodes yielded to the establishment of the interim government in 2003 and the enactment of the current constitution. It mainly highlights the proprietary consequences of the Lusaka peace Accord, the transformative aspects of the 2005 Constitution and the role that international organs, especially the ICC, have played in consolidating peace in the DRC.
- Full Text: false
- Date Issued: 2012
Judicial intervention in Kenya's constitutional review process
- Juma, Laurence, Okpaluba, Chuks
- Authors: Juma, Laurence , Okpaluba, Chuks
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128412 , vital:36107 , https://heinonline.org/HOL/Page?handle=hein.journals/wasglo11amp;div=13amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: The constitutional reform process in Kenya, which culminated in the promulgation of a new constitution in August 2010, has been a subject of much study and scholarly deliberation.' That it ended on a rather positive note as compared to those in Zambia, Malawi, and even Zimbabwe, is seen by many as proof that Africans could, after all, redesign their constitutional frameworks to weed out moribund structures and entrench systems of democratic governance. But the Kenyan experience also indicates a rather unfortunate trend where constitutions are never allowed to grow or mature with statehood.
- Full Text: false
- Date Issued: 2012
- Authors: Juma, Laurence , Okpaluba, Chuks
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128412 , vital:36107 , https://heinonline.org/HOL/Page?handle=hein.journals/wasglo11amp;div=13amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: The constitutional reform process in Kenya, which culminated in the promulgation of a new constitution in August 2010, has been a subject of much study and scholarly deliberation.' That it ended on a rather positive note as compared to those in Zambia, Malawi, and even Zimbabwe, is seen by many as proof that Africans could, after all, redesign their constitutional frameworks to weed out moribund structures and entrench systems of democratic governance. But the Kenyan experience also indicates a rather unfortunate trend where constitutions are never allowed to grow or mature with statehood.
- Full Text: false
- Date Issued: 2012
Mortgage bonds and the right of access to adequate housing in South Africa: Gundwana v Stoke Development and Others 2011 (3) SA 608 (CC)
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127479 , vital:36015 , https://hdl.handle.net/10520/EJC129329
- Description: This article offers a critique of Gundwana v Stoke Development and Others 2011 (3) SA 608 (CC), a case in which the Constitutional Court of South Africa found it to be unconstitutional for the registrar of a high court to declare immovable properties specially executable when ordering a default judgement, to the extent that such an order "permitted the sale and execution of a home of a person". The Court interpreted the property clause in section 25, access to right to housing in section 26 of the Constitution, as mandating "further judicial oversight" in all cases where execution is levied against residential property. The article raises some of the shortcomings of this interpretive scheme and suggests that constitutional values, when used to curtail or enlarge obligations of parties to a mortgage bond, must take into account the general rights and duties which the parties assumed at the signing of the agreement; the circumstances of each of the parties at the time of execution and ascertained through a careful evaluation based on a clearly articulated set of principles, and the nature of constitutional rights themselves. The article argues that, whereas there may be circumstances in which a debtor may need protection, rather than impose a blanket abrogation of procedures allowing for expedient disposal of uncontested claims, the court should instead have considered the establishment of further procedural safeguards.
- Full Text: false
- Date Issued: 2012
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127479 , vital:36015 , https://hdl.handle.net/10520/EJC129329
- Description: This article offers a critique of Gundwana v Stoke Development and Others 2011 (3) SA 608 (CC), a case in which the Constitutional Court of South Africa found it to be unconstitutional for the registrar of a high court to declare immovable properties specially executable when ordering a default judgement, to the extent that such an order "permitted the sale and execution of a home of a person". The Court interpreted the property clause in section 25, access to right to housing in section 26 of the Constitution, as mandating "further judicial oversight" in all cases where execution is levied against residential property. The article raises some of the shortcomings of this interpretive scheme and suggests that constitutional values, when used to curtail or enlarge obligations of parties to a mortgage bond, must take into account the general rights and duties which the parties assumed at the signing of the agreement; the circumstances of each of the parties at the time of execution and ascertained through a careful evaluation based on a clearly articulated set of principles, and the nature of constitutional rights themselves. The article argues that, whereas there may be circumstances in which a debtor may need protection, rather than impose a blanket abrogation of procedures allowing for expedient disposal of uncontested claims, the court should instead have considered the establishment of further procedural safeguards.
- Full Text: false
- Date Issued: 2012
Normative and institutional approaches to the protection of property rights of IDPs in Kenya's Rift Valley Province
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127464 , vital:36014 , https://doi.org/10.3366/ajicl.2012.0033
- Description: The post-election violence of 2008 which displaced about 600,000 people in six out of the eight provinces of Kenya1 has brought the plight of the internally displaced persons (IDPs) to the forefront of the national debate on politics and law. Transcending this debate is the sobering reality that inasmuch as the events of 2008 were catastrophic, they were a mere replay of the ethnically engineered political violence that Kenyans have had to endure before and after every major election since 1990.2
- Full Text: false
- Date Issued: 2012
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/127464 , vital:36014 , https://doi.org/10.3366/ajicl.2012.0033
- Description: The post-election violence of 2008 which displaced about 600,000 people in six out of the eight provinces of Kenya1 has brought the plight of the internally displaced persons (IDPs) to the forefront of the national debate on politics and law. Transcending this debate is the sobering reality that inasmuch as the events of 2008 were catastrophic, they were a mere replay of the ethnically engineered political violence that Kenyans have had to endure before and after every major election since 1990.2
- Full Text: false
- Date Issued: 2012
Nothing but a mass of debris: urban evictions and the right of access to adequate housing in Kenya
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128425 , vital:36108 , http://www.scielo.org.za/scielo.php?script=sci_arttextamp;pid=S1996-20962012000200008amp;lng=enamp;nrm=iso
- Description: The article explores the opportunities that the new constitutional dispensation in Kenya has created for the protection against unlawful eviction of poor populations living in urban centres. It analyses the content of the right to accessible and adequate housing as provided for in article 43 of the Constitution of Kenya and articulated in various international instruments, and traces how this provision has been applied in the eviction cases that the Kenyan courts have decided. From this analysis, the article suggests that the new constitutional dispensation has opened up possibilities for rights enforcement that the courts as well as administrative organs should take advantage of. It also makes tangible suggestions on how to improve rights litigation in this regard, such as affirming the rights of access to courts and seeking further judicial oversight prior to any eviction and the promulgation of enabling legislation.
- Full Text:
- Date Issued: 2012
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128425 , vital:36108 , http://www.scielo.org.za/scielo.php?script=sci_arttextamp;pid=S1996-20962012000200008amp;lng=enamp;nrm=iso
- Description: The article explores the opportunities that the new constitutional dispensation in Kenya has created for the protection against unlawful eviction of poor populations living in urban centres. It analyses the content of the right to accessible and adequate housing as provided for in article 43 of the Constitution of Kenya and articulated in various international instruments, and traces how this provision has been applied in the eviction cases that the Kenyan courts have decided. From this analysis, the article suggests that the new constitutional dispensation has opened up possibilities for rights enforcement that the courts as well as administrative organs should take advantage of. It also makes tangible suggestions on how to improve rights litigation in this regard, such as affirming the rights of access to courts and seeking further judicial oversight prior to any eviction and the promulgation of enabling legislation.
- Full Text:
- Date Issued: 2012
The narrative of vulnerability and deprivation in protection regimes for the internally displaced persons (IDPs) in Africa: an appraisal of the Kampala Convention
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128448 , vital:36110 , https://heinonline.org/HOL/Page?handle=hein.journals/laacydev16amp;div=14amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: Prior to the 1990s, the phenomenon of internal displacement did not attract much attention from the international community. Most states, suspicious of the external interests in what they considered to be a purely internal matter were not keen to expose difficulties or suffering of their displaced citizens. And insistence on protection of the internally displaced by international organisations was seen as an affront to sovereignty.
- Full Text: false
- Date Issued: 2012
- Authors: Juma, Laurence
- Date: 2012
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128448 , vital:36110 , https://heinonline.org/HOL/Page?handle=hein.journals/laacydev16amp;div=14amp;g_sent=1amp;casa_token=amp;collection=journals
- Description: Prior to the 1990s, the phenomenon of internal displacement did not attract much attention from the international community. Most states, suspicious of the external interests in what they considered to be a purely internal matter were not keen to expose difficulties or suffering of their displaced citizens. And insistence on protection of the internally displaced by international organisations was seen as an affront to sovereignty.
- Full Text: false
- Date Issued: 2012
Going against the tide: seeking regulations for private military/security companies in a globalized world
- Authors: Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128822 , vital:36163 , https://hdl.handle.net/10520/EJC85398
- Description: This article discusses the role of privatization of security in Africa, but its focus is on private military and security companies (PMSCs). The article proceeds on the basis that there is need for effective regulatory frameworks for PMSCs that operate in conflict zones of Africa. Thus, it begins by appraising the existing normative standards at the international, regional and domestic level that apply to these companies, and thereafter, identifies their shortcomings in light of the prevailing security conditions within the continent. The article then posits broad theoretical imperatives for designing a more effective regulatory framework for PMSCs and concludes by proposing the establishment an overarching continental regime constructed on the basis of the suggested imperatives.
- Full Text: false
- Date Issued: 2011
- Authors: Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/128822 , vital:36163 , https://hdl.handle.net/10520/EJC85398
- Description: This article discusses the role of privatization of security in Africa, but its focus is on private military and security companies (PMSCs). The article proceeds on the basis that there is need for effective regulatory frameworks for PMSCs that operate in conflict zones of Africa. Thus, it begins by appraising the existing normative standards at the international, regional and domestic level that apply to these companies, and thereafter, identifies their shortcomings in light of the prevailing security conditions within the continent. The article then posits broad theoretical imperatives for designing a more effective regulatory framework for PMSCs and concludes by proposing the establishment an overarching continental regime constructed on the basis of the suggested imperatives.
- Full Text: false
- Date Issued: 2011
Pecuniary interests and the rule against adjudicative bias: the automatic disqualification or objective reasonable approach?
- Okpaluba, Chuks, Juma, Laurence
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129093 , vital:36217 , https://hdl.handle.net/10520/EJC122974
- Description: This article deals with the issue of bias arising from pecuniary interest of a judge. Essentially, it asks the question: when does the pecuniary interest of a judge diminish his/her ability to apply his/her mind impartially to the dispute before him/her. To answer this question, the article undertakes a synthesis of the various rules and tests applied across Commonwealth jurisdictions and then compares them with the South African approach as outlined in two recent cases, namely Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) and Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA). Broadly, the article discusses the key aspects of the automatic disqualification approach preferred by the English courts, the Canadian objective reasonable approach and the realistic possibility approach recently adopted by the Australian courts. The article concludes that the South African approach that places emphasis on the objective reasonable test, complemented by the realistic possibility approach, may be most suitable, given the nature of complaints so far dealt with by the courts and the full propriety of the injunction in section 34 of the Constitution.
- Full Text: false
- Date Issued: 2011
- Authors: Okpaluba, Chuks , Juma, Laurence
- Date: 2011
- Language: English
- Type: text , article
- Identifier: http://hdl.handle.net/10962/129093 , vital:36217 , https://hdl.handle.net/10520/EJC122974
- Description: This article deals with the issue of bias arising from pecuniary interest of a judge. Essentially, it asks the question: when does the pecuniary interest of a judge diminish his/her ability to apply his/her mind impartially to the dispute before him/her. To answer this question, the article undertakes a synthesis of the various rules and tests applied across Commonwealth jurisdictions and then compares them with the South African approach as outlined in two recent cases, namely Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) and Ndimeni v Meeg Bank Ltd (Bank of Transkei) 2011 (1) SA 560 (SCA). Broadly, the article discusses the key aspects of the automatic disqualification approach preferred by the English courts, the Canadian objective reasonable approach and the realistic possibility approach recently adopted by the Australian courts. The article concludes that the South African approach that places emphasis on the objective reasonable test, complemented by the realistic possibility approach, may be most suitable, given the nature of complaints so far dealt with by the courts and the full propriety of the injunction in section 34 of the Constitution.
- Full Text: false
- Date Issued: 2011