Papers by Dr. Miyawa Maxwel
Social Science Research Network, Aug 31, 2018
TWAIL critique of ICC
SSRN Electronic Journal, 2019
The question of African approaches in international law and the related aspect of African concept... more The question of African approaches in international law and the related aspect of African conception of human rights is a familiar minefield of contestation animated by two basic concerns: the role, if any, that Africa played in the making; or whether indeed Africa shaped and continue to shape the normative character of international human rights law. Underlying these ideological polarities is the contestation as to whether pre-colonial Africa had concepts of rights. The dynamic of African approaches to human rights law is therefore intellectually problematic for it challenges and discounts the dominant (Western/ liberal) theoretical and philosophical bases on which the universal human rights regime is articulated and understood. Addressing these diametrically opposed normative claims and standpoints is beyond the scope of this article, neither am I intent on even the most modest attempt to mediate them. I however endeavour to address some three important and related questions. The first issue, by brief introduction, is to highlight the reason for the chasm between liberalism, the dominant frame within which rights are conceptualized, and the contending African conceptual paradigm. I then ask what the intellectual and normative African compass has been in the arena of international human rights law, from the perspective of academic writers. This second question seeks to glean whether African approaches have evolved a clear core creed in terms of which we can define the approach, in comparison, for instance, to TWAIL epistemic traditions that we are all too familiar with. I focus on these new set of questions, the essence of which is to retrieve and collate, from the rich tapestry of literature, what the African human rights fingerprints may be in the realm of international law. I argue that there exists a veritable African human rights fingerprint (borne out of African cultural and traditional conceptions of: life, humanity, individuality, community, responsibility and other social values) that emphasizes communal conception of rights and venerates the notion of individual duties. Subsequently, I define the fingerprints in terms of a core creed. I then use this salient feature to critique Western/liberal understanding of rights, particularly its capture by, and failure to regulate transnational corporate triumphalism and the associated violations that the neoliberal development blueprint continue to unleash on the African people.
SSRN Electronic Journal, 2016
SSRN Electronic Journal, 2020
In this brief, I examine the contemporary institutional, normative and structural contexts of the... more In this brief, I examine the contemporary institutional, normative and structural contexts of the criminal justice system (CJS) in Kenya, but only as relates to what informs the DPP’s decision to charge or not to charge. The Decision To Charge, 2019 is a policy document by the ODPP and was launched on 30th July 2020. It constitutes the emerging trend of norm generation (if not over-proliferation) by the ODPP in the criminal justice enterprise. The ODPP, notably, has proliferated a number of policy documents since the creation of that office following the promulgation of the Constitution of Kenya 2010. Among others, the DTC has crystallized into a norm of practice within the ODPP replacing its predecessor, the National Prosecution Guidelines.
SSRN Electronic Journal, 2020
This dissertation investigates how development justice can be realized through an international a... more This dissertation investigates how development justice can be realized through an international accountability praxis that is grounded on the core principles of the United Nations Declaration on the Right to Development, one that recognizes the imperative of direct and distinct accountability of the World Bank and the IMF for their development practices. Empirically, amid the intensification of human rights deprivations and mounting development injustices in the Global South, the dominant development praxis has been typified by the marked absence of direct and distinct accountability of international financial institutions. The normative frameworks of international accountability in the realm of development are institutionally weak and assume a statist outlook, delegitimizing any attempt to locate the causes of inegalitarian development outcomes in the character of the global development policy system. And yet, the global policy system has a significantly determinative, manipulating and subordinating character on the national development outcomes. This dissertation discerns that through legal doctrines and traditions that it constructs and reconstructs, international law tends to sanction, rationalize and legitimize accountability avoidance, disconnection, and obstruction, particularly when international financial institutions are the objects of censure in development policymaking and practice. It is this quality and architecture that render the functionalities of extant accountability regimes unsuitable and ill-adapted to aid the securement of the kind of development justice foreseen by the right to development norm. Simply, contemporary regimes cannot assure the protection of people in the Global South against harms causally linked to the
The current mechanisms for the appointment of judges and magistrates in Kenya are set out in the ... more The current mechanisms for the appointment of judges and magistrates in Kenya are set out in the Constitution adopted in a referendum in August 2010.2 In the process that led to the adoption of the Constitution, a great deal of thought was given to the status and role of the judiciary. The Constitution did more than try to establish an honest and competent judiciary. It aims to set up an entirely new system of governance based on fundamental values and principles.
While the emphasis here is on the process governing the appointment of superior court judges — the focus of this book — this chapter situates this issue in the context of Kenya’s constitutional history. During many years of dictatorial rule, the judiciary had been stripped of its independence, with judges appointed or dismissed effectively by the President and the Attorney-General. Corruption was rampant, leading also to incompetence. Major reform of the judiciary was one objective of constitutional change, and of later developments.
The chapter makes a few comparative observations on the situation in two of Kenya’s neighbours, Tanzania and Uganda. Uganda adopted a new Constitution in 1995, though there have been some amendments. Tanzania’s constitutional process seems to have stalled, despite a draft having been prepared.
Mainstream legal scholarship has paid much attention to clarifying the meaning of the right to de... more Mainstream legal scholarship has paid much attention to clarifying the meaning of the right to development by placing a great deal of scrutiny primarily on obligations of states to the neglect of non-state actors, as if states are the only integral players in the global economy necessary for realizing the right to development. This entrepreneurship steered clear of assessing viability of the right's founding vision of redressing institutional imbalances and unfairness of the global economic order. If the discourse took a global order reform trajectory, it would have injected thoughts on how accountability of international economic institutions and transnational corporations can be formulated in a way that bridges the disjuncture between human rights and economic globalization. This article argues that contemporary accountability practices underpinned by the state responsibility doctrine are ill-conceived and inadequate because they overplay the role of the state. Yet, the state is subordinated to the vested interests of unaccountable global capital which seed the global economy with numerous incidences of rights violations. Thus, the article recommends an expanded notion of accountability (answerability, responsibility, sanctions) detached from a state-centric conception of accountability, and which bears the potential of resolving the non-state actor accountability deficit in international law.
Drafts by Dr. Miyawa Maxwel
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Papers by Dr. Miyawa Maxwel
While the emphasis here is on the process governing the appointment of superior court judges — the focus of this book — this chapter situates this issue in the context of Kenya’s constitutional history. During many years of dictatorial rule, the judiciary had been stripped of its independence, with judges appointed or dismissed effectively by the President and the Attorney-General. Corruption was rampant, leading also to incompetence. Major reform of the judiciary was one objective of constitutional change, and of later developments.
The chapter makes a few comparative observations on the situation in two of Kenya’s neighbours, Tanzania and Uganda. Uganda adopted a new Constitution in 1995, though there have been some amendments. Tanzania’s constitutional process seems to have stalled, despite a draft having been prepared.
Drafts by Dr. Miyawa Maxwel
While the emphasis here is on the process governing the appointment of superior court judges — the focus of this book — this chapter situates this issue in the context of Kenya’s constitutional history. During many years of dictatorial rule, the judiciary had been stripped of its independence, with judges appointed or dismissed effectively by the President and the Attorney-General. Corruption was rampant, leading also to incompetence. Major reform of the judiciary was one objective of constitutional change, and of later developments.
The chapter makes a few comparative observations on the situation in two of Kenya’s neighbours, Tanzania and Uganda. Uganda adopted a new Constitution in 1995, though there have been some amendments. Tanzania’s constitutional process seems to have stalled, despite a draft having been prepared.