Article 165 (3) (d) of the Constitution of Kenya 2010 gives the High Court the power of constitut... more Article 165 (3) (d) of the Constitution of Kenya 2010 gives the High Court the power of constitutional interpretation and to uphold constitutional supremacy by declaring void any law that is inconsistent with the Constitution or invalid any act or omission contravening it. Within the current Kenyan context, judicial review of legislative action has become the common practice. The courts are constantly drawn into the realm of legislative matters at the national and devolved levels of government established under the Constitution. However, the High Court’s role is limited to interpretation only and it cannot compel Parliament to modify the legislative action contravening the Constitution. Conversely, where the Legislature disagrees with the Court’s assessment of what the constitutional norms require it cannot substitute the Court’s interpretation with its own. The courts are subsequently tasked with the delicate prospect of balancing the legal and political constraints that underlie a...
This article argues that formal institutions have always mattered in African politics. It contend... more This article argues that formal institutions have always mattered in African politics. It contends that because the legal-rational domain in Africa is characterized by broad swaths of discretionary power, law is an important instrument in political contests. These broad grants of formal power facilitate informal and unaccountable governance. The article calls upon students of African politics to pay closer attention to the nature and use of formal law, and legal processes, in African politics. Further, it sees a need for empirical studies of the interplay between formal and informal institutions in African politics. It suggests that there is a need to democratize legal processes with a view to empowering the citizenry to participate effectively in, and hold to account, the use of law in political contests. This task of democratization, the article suggests, can be facilitated by administrative-law reforms.
SUMMARY Sexual violence is a human rights violation and is addressed under a growing number of in... more SUMMARY Sexual violence is a human rights violation and is addressed under a growing number of international agreements including the 1993 Declaration on the Elimination of Violence against Women, among others. This article uses the due diligence standard, as elaborated on by the UN Special Rapporteur on Violence against Women, to interrogate Kenya's domestic accountability efforts with regard to sexual violence in the 2007/2008 post-election violence. It finds that Kenya suffered from a number of structural and systemic shortcomings that resulted in its failure to meet its obligation to prevent, investigate, prosecute and compensate for such acts of sexual violence perpetrated by both state and non-state actors. Key among them are a lack of well-coordinated multi-sectoral approaches to address sexual violence; human capacity gaps in the provision of medico-legal services to survivors; and systemic failures in the investigation and prosecution of sexual violence cases. The artic...
About U4 U4 is a team of anti-corruption advisers working to share research and evidence to help ... more About U4 U4 is a team of anti-corruption advisers working to share research and evidence to help international development actors get sustainable results. The work involves dialogue, publications, online training, workshops, helpdesk, and innovation. U4 is a permanent centre at the Chr. Michelsen Institute (CMI) in Norway. CMI is a nonprofit, multidisciplinary research institute with social scientists specialising in development studies.
The member states of the Organisation of African Unity (OAU) established the African Union (AU) i... more The member states of the Organisation of African Unity (OAU) established the African Union (AU) in 2001, following recognition that Africa needed a more effective institution that could maintain peace and security. In particular,the 1994 genocide in Rwanda demonstrated to the continent that it needed to enhance its ability to act before conflicts became unmanageable and destructive.The AU consequently established an institutional framework for the prevention, management, and resolution of conflicts. This institutional framework consistsof two parallel frameworks, namely the African Peace and Security Architecture (APSA).
This article engages in an empirical review of sentencing in Kenya. It argues that huge dispariti... more This article engages in an empirical review of sentencing in Kenya. It argues that huge disparities exist in sentencing thus undermining public confidence and the realization of the goals of the system. The development of comprehensive sentencing guidelines is recommended as a panacea to the unwarranted discrepancies in sentencing. It is argued that sentencing guidelines are not intended to impede judicial discretion but rather to provide a framework within which the discretion would be exercised.
Article 165 (3) (d) of the Constitution of Kenya 2010 gives the High Court the power of constitut... more Article 165 (3) (d) of the Constitution of Kenya 2010 gives the High Court the power of constitutional interpretation and to uphold constitutional supremacy by declaring void any law that is inconsistent with the Constitution or invalid any act or omission contravening it. Within the current Kenyan context, judicial review of legislative action has become the common practice. The courts are constantly drawn into the realm of legislative matters at the national and devolved levels of government established under the Constitution. However, the High Court’s role is limited to interpretation only and it cannot compel Parliament to modify the legislative action contravening the Constitution. Conversely, where the Legislature disagrees with the Court’s assessment of what the constitutional norms require it cannot substitute the Court’s interpretation with its own. The courts are subsequently tasked with the delicate prospect of balancing the legal and political constraints that underlie a...
This article argues that formal institutions have always mattered in African politics. It contend... more This article argues that formal institutions have always mattered in African politics. It contends that because the legal-rational domain in Africa is characterized by broad swaths of discretionary power, law is an important instrument in political contests. These broad grants of formal power facilitate informal and unaccountable governance. The article calls upon students of African politics to pay closer attention to the nature and use of formal law, and legal processes, in African politics. Further, it sees a need for empirical studies of the interplay between formal and informal institutions in African politics. It suggests that there is a need to democratize legal processes with a view to empowering the citizenry to participate effectively in, and hold to account, the use of law in political contests. This task of democratization, the article suggests, can be facilitated by administrative-law reforms.
SUMMARY Sexual violence is a human rights violation and is addressed under a growing number of in... more SUMMARY Sexual violence is a human rights violation and is addressed under a growing number of international agreements including the 1993 Declaration on the Elimination of Violence against Women, among others. This article uses the due diligence standard, as elaborated on by the UN Special Rapporteur on Violence against Women, to interrogate Kenya's domestic accountability efforts with regard to sexual violence in the 2007/2008 post-election violence. It finds that Kenya suffered from a number of structural and systemic shortcomings that resulted in its failure to meet its obligation to prevent, investigate, prosecute and compensate for such acts of sexual violence perpetrated by both state and non-state actors. Key among them are a lack of well-coordinated multi-sectoral approaches to address sexual violence; human capacity gaps in the provision of medico-legal services to survivors; and systemic failures in the investigation and prosecution of sexual violence cases. The artic...
About U4 U4 is a team of anti-corruption advisers working to share research and evidence to help ... more About U4 U4 is a team of anti-corruption advisers working to share research and evidence to help international development actors get sustainable results. The work involves dialogue, publications, online training, workshops, helpdesk, and innovation. U4 is a permanent centre at the Chr. Michelsen Institute (CMI) in Norway. CMI is a nonprofit, multidisciplinary research institute with social scientists specialising in development studies.
The member states of the Organisation of African Unity (OAU) established the African Union (AU) i... more The member states of the Organisation of African Unity (OAU) established the African Union (AU) in 2001, following recognition that Africa needed a more effective institution that could maintain peace and security. In particular,the 1994 genocide in Rwanda demonstrated to the continent that it needed to enhance its ability to act before conflicts became unmanageable and destructive.The AU consequently established an institutional framework for the prevention, management, and resolution of conflicts. This institutional framework consistsof two parallel frameworks, namely the African Peace and Security Architecture (APSA).
This article engages in an empirical review of sentencing in Kenya. It argues that huge dispariti... more This article engages in an empirical review of sentencing in Kenya. It argues that huge disparities exist in sentencing thus undermining public confidence and the realization of the goals of the system. The development of comprehensive sentencing guidelines is recommended as a panacea to the unwarranted discrepancies in sentencing. It is argued that sentencing guidelines are not intended to impede judicial discretion but rather to provide a framework within which the discretion would be exercised.
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