kenyan legal issue no. 15

KL: Issue No. 15 – March 2015

i

Real Kenya, Real Issues

Just before we all become stereotypic (not out of our own wish but internal ignorance and religiously believing of

what leaders can say about National Security, Refugees and Audio Visual context displayed by most media

platforms) – be pleased to attain invaluable knowledge from one Mr. Quincy Kiptoo as he discusses The

Principle of Non-Refoulement. Herein, there other articles rich of knowledge: Kenyan Legal proffers you the

rostrum.

Kenyan Legal is in Partnership with:


i


The subsidiaries of Kenyan Legal

a. Kenya Journal of Law and Justice

b. Kenya Students’ Legal Aid and Awareness Programme

c. Reviewer Feedback Programme

d. Kenya Legal Inspire Programme

Independent persons run the aforementioned branches of Kenyan Legal. In the event one

wishes to have a glance at the merit of the subsidiaries, please visit:

www.kenyanlegal.com


ii


Editor’s Note

When a baby learns to crawl and then walks, a parent and even those bona fide friends will always be

happy. One cannot understand what actually amuses these people. Sometimes it can be that the

child is not incapacitated physically, may be they are competing with other parents child(ren) or they

are happy they are progressing to a certain stage.

Kenyan Legal Magazine is climbing the flight of stairs with ease – I do not know what my

colleagues, competitors, friends or anybody who is concerned about this Magazine does have in

mind, just like a parent to a child, we all have different views towards this progress. Therefore, under

my comfortable but involving position as the Senior Editor of Kenyan Legal I challenge you as the

reader and your friends by asking: why should Kenya be celebrating 52 years of independence yet we

cannot understand the laws of our country? Why are we still crawling, crying and holding on our

leaders’ skirts and trousers like children who are being left by their parents for a long trip.

I challenge us to accept that the time for celebrating our independence ended and if we are to

continue to celebrate it, we should celebrate by making the Government Accountable. By walking

away from the ethnical lines of thought when addressing matters that, hold high gravity.

Even when a child discovers s/he can crawl, the child is still curious to anchor on something and

stand – thereon, s/he may walk. Let us try to break the chains of tribalism; we have not felt the

value of breaking off tribalism – as curious like a child, we can do it.

I laud the authors of the articles or research papers provided in the Kenyan Legal Issue No. 15 of

March 2015 – I hope you as the reader will gain something from the papers.

Regards, Stacy J. Jayo [email protected] Senior Editor, Kenyan Legal Magazine


iii


Composition of Kenyan Legal

Performance Auditors: Mr. Michael Opondo & Ms. Linda Wangui

Managerial Department

Chair Person: Ms. Joyce Muthoni – [email protected]

Vice Chair Person: Ms. Nazneen Basha – [email protected]

Editorial Department

Senior Editor: Ms. Stacy Jayo – [email protected]

Assistant Editor: Ms. Jane Muhia – [email protected]

Associate Editors: Mr. Quincy Kiptoo - [email protected]

Ms. June Kyenze – [email protected]

Mr. Samuel Onyango – [email protected]

Content and Layout

Mr. Duncan Ombo – [email protected]

Communications Department

Communications Director: Mr. Aira Godfrey – [email protected]

Communications Co-Directors: Ms. Valerie Akumu – [email protected]

Ms. Beryl Naliaka – [email protected]

Mr. Peter Mungóma – [email protected]


iv


Table of Contents

Title Page

The Subsidiaries of Kenyan Legal i

Editor’s Note ii

Composition of Kenyan Legal iii

Table of Content iv

Articles:

Security Council Consideration of a Complainant by Iraq, 8th June 1981 1

Anti-ICC Movement Ill Advised; The Kenyan Perspective 6

The New Security Laws of Kenya 8

Jurisdiction of International Law 13

A Choice 17

Principle of Non-Refoulement 19

Rescuing Article 26 of The Constitution Of Kenya 2010 23


1


Security Council Consideration of a Complaint by Iraq, 8 June 1981

Franklin M. Murianki

Email: [email protected]

(The author is a Peace and Conflict analyst, He is a Political Liaison with an International

Organization. Has a Masters in Peace and Conflict from the United Nations University for Peace in

Costa Rica)

FACTS

In 1981, IAF fighter pilots flying F-15s and F-16s under instruction, from IDF command, carried

out a successful an operation against the Osiraq nuclear reactor located in Iraq in the so called

“Operation Babylon”. This may have killed Iraq’s nuclear capabilities in the short term.

This act of intervention raised a furor in the international community and jurists alike challenging

the legality of the aforementioned attack. Whether the attack constituted a destabilization in the

global order of peace and security was up for deliberation at the United Nations Security Council.

Consequently, UNSCR Procedures were undertaken according to the usual diplomatic protocol.

RELEVANT LAWS

The legality of this attack is governed by in international law in particular UN Charter and the norms

of international conduct. The prohibition on the use of military force is a valid customary

international law norm and it is enshrined in the United Nations Charter.Article 2, paragraph 4, of

the Charter of the United Nations provides that “All Members shall refrain in their international

relations from the threat or use of force against the territorial integrity or political independence of

any state, or in any other manner inconsistent with the Purposes of the United Nations.”1

Article 51 states that “Nothing in the present Charter shall impair the inherent right of individual or

collective self-defense if an armed attack occurs against a Member of the United Nations, until the

Security Council has taken measures necessary to maintain international peace and security.

Measures taken by Members in the exercise of this right of self-defense shall be immediately

reported to the Security Council and shall not in any way affect the authority and responsibility of

the Security Council under the present Charter to take at any time such action as it deems necessary

in order to maintain or restore international peace and security.2”

1 United Nations Resolutions. Series 1, Resolutions Adopted by the General Assembly (KZ5006.2.D56). This twenty-four volume set includes all

resolutions of the General Assembly from 1946 to 1986.Retrived from .http://www.un.org/en/documents/charter/chapter1.shtml on 3/5/2010. 2 Ibid……


2


These two articles of customary international law expressly limit the use of force in international

relations of states. The exception being in Article 51 that applies in the case of self-defense and here

to be legal, the force exercised must be strictly limited to self-defense. These rules are binding as

they are generally accepted rules or opinion juris.

Under article 51 a victim of an armed attack may use force to defend itself, and others may join to

use force in collective self-defense of the victim pending Security Council deliberation. Therefore an

armed attack is a prerequisite for self-defense under this dictum. However, different interpretations

arise on whether an armed attack is to occur first or whether a pre-emptive strike can be considered

necessary because of an imminent attack and the urgency of self-defense. In the Caroline Case3: The

right of self-defense is upheld by the International Court of Justice as there was imminence of attack

and urgency of self-defense.

Legal Reasoning of Parties:

Israel:

The state of Israel has the elementary duty to protect its citizens. It was exercising its inherent and

natural right to self-defense as understood in general international law and well within the meaning

of Article 51.The Israel representative while quoting international law scholars quizzed whether a

state should allow its assailant to deliver its first and final blow and whether a state should wait until

it is too late before it may defend itself.

The Israel government intimates it planned the attack only when they learned of the completion of

the Osiraq reactor was a month ahead. They argue the attack was undertaken on Sunday late in the

day hence the workers, technicians and diplomats would not be on the site albeit a few. They

considered other reactors in Iraq and it was not feasible because the reactors were operational and

would realize substantial amounts of radiation if attacked. Israel considered it took all relevant

precautions.

Tunisia

Tunisia argues that according to the Definition of aggression in General Assembly resolution

3314(XXIX) annex: bombardment of the armed nation of a state against the territory of another

State, regardless of a declaration of war, constitutes an act of aggression. The representative declared

that Israel considerations are not founded on generally accepted international rules based on

principle and law.

3 British forces crossed the Niagara River, therefore entering the United States, and preemptively attacked a U.S. vessel allegedly aiding

insurrectionist movements in Canada.


3


UK

Armed attack in such circumstances cannot be justified. It constitutes grave breach of international

law. The government argued that Iraq had signed the NPT and accepted IAEA safeguards while

Israel had not. It was an unprovoked attack to be condemned and that manufacture of energy

through nuclear sources is not totally abhorrent. The argument of self-defense made by Israel was

not sound as there was no armed attack on its soil to warrant self-defense. Also there was no instant

or overwhelming necessity for self-defense. Violation of Iraq sovereignty.

USA

U.S opposes IAEA resolution that is referred in the UNSC resolution. Israel actions violated the UN

Charter only to the extent that Israel did not exhaust peaceful means for the resolution of the

dispute.US reservations do not hinder it from its determination to Israel security commitments and

determination to work with all Governments if the region.

IRAQ

The UN charter prohibits the use of force except in self-defense. The Charter obliges members to

submit to the Council any dispute dangerous to international peace. If an armed attack is imminent

in the strict doctrine of Carolina then it could bring the case within Article 51.

United Nations Security Council Position

The Security Council resolution adopted the following resolutions including;

1. A Strong condemnation of the military attack by Israel.

2. That Israel requirement to refrain from future acts of threat.

3. A Reassertion of Iraq’s sovereign right and all other states to development of nuclear technological.

4. A statement that Israel should immediately place its safeguards with IAEA.

5. Iraq’s entitlement to appropriate redress.

Critical Analysis

The attack on Osiraq nuclear reactor by Israel air force contravenes international law principles of

refrain from use or threat of force Article 2(4) of the UN Charter as well as Article 51.The self-

defense doctrine that Israel argues does not apply. Firstly, there was no armed attack on Israel to


4


constitute self-defense. Secondly, as in the case of Carolina. Iraq nuclear threat was not imminent

and necessary to constitute .self-defense. In customary international law, anticipatory self-defence

has its origins in the Caroline case. The Caroline incident represents the agreement of British and

American officials at the time that the use of defensive force is permitted when the necessity of that

self-defence is instant, overwhelming, and leaving no choice of means, and no moment for

deliberation”. Therefore rules for anticipatory self-defence are immanency, necessity, and proportionality.

These elements were all lacking in this case of Israel’s military attack on Iraq.

The gravity of nuclear attack on Israel is not underestimated as a first strike would have been fatal

blow on Israel and may not have been in the position to retaliate. However, the production of a

nuclear weapon from the Osiraq reactor would have taken from 5-10 years minimum considering

that Iran had damaged it by aerial attack in 1980 while the Iraq-Israel war was ongoing.

In other sources Israel argues that because Iraq had not signed the 1949 Armistice agreement and

did not recognize the state of Israel, therefore technically they were in a state of war and an armed

attack was not against international law4. The aggressive foreign policy of Iraq towards its Persian,

Arab and Israel neighbors did not augur well for the fearful Israel.

Counter arguments (Ford 2005) intimates that the Israel Prime minister was threatened by internal

problems and a nearing election and hence had to solidify his political position and as well appease

Israelis that were generally fearful of Saddam Hussein’s irredentism and aggressiveness. The Begin

doctrine “Israel would not tolerate any nuclear weapons in the region5 served as an ideological

foundation for the actions undertaken by the IAF6. This also goes to show that domestic interest

stills prevails on the Law of the use of force and so mainly due to the lack of authoritative and

constraining interpretation of the UNC.

Israel’s policy of nuclear ambiguity as it has not admitted officially to having nuclear weapons, and

therefore if it actually has these weapons they are not under the scrutiny of IAEA and they have not

signed the NPT. This is clearly a contravention under international law.

Lastly, the US and UK condemnation of the attacks on Osiraq by Israel as going against

international law sharply contrasts to the 2003 unilateral invasion of Iraq by US and UK on the

premise that the ruling regime had acquired WMDs which they would use on the western world or

sell to “terrorists”. The world political environment in 1981 was that the western states were arming

Iraq to invade Iran which had overthrown the Shah regime through an Islamic revolution and

installed an Islamic state. Legitimization of the use of force can here again be considered as only

based on domestic interests.

4 Peter S. Ford, S.P.,( 2005) .Israel's Attack On Osiraq: A Model For Future Preventive Strikes?.INSS Occasional Paper 55. USAF Institute for National Security Studies: USAF Academy Colorado. 5 Quoted in Avner Cohen, “The Lessons of Osirak and the American Counter proliferation Debate,” in International Perspectives on Counter proliferation, ed. Mitchell Reiss and Harald Muller (Washington DC: Woodrow Wilson Centre for international Studies, 1995) 85

http://en.wikipedia.org/wiki/Policy_of_deliberate_ambiguity

http://www.amazon.com/s/ref=ntt_athr_dp_sr_1?_encoding=UTF8&sort=relevancerank&search-alias=books&field-author=Peter%20S.%20Ford


5


The broad interpretation of the doctrine of self-defense to include anticipatory and preemptive

strike notions continues at the great advantage of powerful states. The United Nations has no major

implementing authority and merely condemns countries for contravening international laws while

armed conflict and aggression continue to hurt civilians and unarmed persons. Moreover, the UNSC

here missed the opportunity to give a clear and definitive interpretation of legal self-defense.

Israel’s repeated acts of aggression on sovereign states even after this UNSC resolution begs the

question of enforceability of security council resolutions on powerful states.

To justify using force as anticipatory self-defence, a state must show a reasonable belief that an

armed attack is imminent.

Is might right? How efficiently and effectively can war be limited and constrained by International

law.


6


ANTI – ICC MOVEMENT ILL ADVISED; THE KENYAN

PERSPECTIVE

Otieno Nelson

Kenyatta University School of Law

(3rd Year)


Since the 2008, a question still hangs on the balance as to whether the victims of the post-election

violence in Kenya will ever get justice. This question, however seem to be overlooked by many due

to time factors as well as incidental interests that have been acquired by the champions of justice.

Kenya and, by extension, Africa has pit ICC as a political outfit whose main goal is to water down

the rising African sovereignty which results into inappropriate targeting of Africans . This attitude

was recently evident in the inaugural statement as the new African Union Boss of the current

Zimbabwean president Mugabe when he quoted that Africa is for Africans and that imperialism is

no more pointing to the alleged imperialist acts by the International criminal court. This is not a

one-off attitude but has however resulted from very many intervening factors since the year 2008.

As early as first half of the Kenyan parliamentary life in 2008, there was a famous slogan ‘Don’t be

vague, let’s go to the Hague.’ which was used by those who were opposed to the formation of an

independent tribunal in order to provide African solutions to the African problems. At this time, the

general view irrespective of political alignments in Kenya was that it was only ICC which was able to

do justice to perpetrators and victims of the heinous acts after the 2007 elections that led to an

approximate death toll of 1,000 persons as well as displacement of 300,000 Kenyans.

The proposers of the ICC were insistent that the establishment of a local tribunal, despite being

championed by the then prime minister and the president, failed spectacularly under their close

watch. After thorough investigations, a list was finally presented to the then UN Secretary –General

Koffi Annan which revealed the first bunch of the suspects of the heinous acts. This was the turning


7


point. First, almost all the former proponents abandoned their justification for ICC intervention.

Secondly, most of the named suspects were politicians.

It is on the second point that I am basing my argument that the Kenyan movements against ICC are

ill informed. Politicization of ICC has taken root after the revealing of names in the list that the

answer to the question of whether justice has been reduced in Kenya to yes or no depending on the

political coalition that one belongs.

It is important to note that Africa has its peculiar problems which include bad governance, clinging

into power by the African leaders, corruption at different levels of governance as well as poaching

activities just to mention a few of them. However there is no justification for having an African

solution as the only effective solution. As Africans, we have lost the moral authority to do so since

we approach foreign governments for economic sustenance in cases of economic crisis. This is only

a show of the fact that there is politicization of court institutions with no real intention of saving

African from the real problems that face it .The ICC however targets Africans effectively but the

only challenge is that most of the accused persons are usually politicians making it difficult to refute

the claim of politicization of the whole ICC process.

To justify the claim of politicization, look at examples of non politicians who have ever been

accused at ICC. An example is Dominic Ongwen who was recently referred to ICC by the Ugandan

government. AU Summit was not held to discuss the threat that this causes on the African

sovereignty because he was a military man and no political interests are at stake. This is an evidence

that the current anti-ICC movement is political and doesn’t not propose solutions of the most

pinching problems in Africa including the abject poverty that people face

If only the Kenyan government and A.U at large and its influential leaders would return to their first

positions on ICC, and to realize the pull outside ICC is a Chinese plot to have say in African matters

at the expense of USA and instead concentrate on solving real African problems, Africa will be an

admirable content in not so many years to come.


8


THE NEW SECURITY LAWS OF KENYA

Yvelle

Kenyatta University School of law


The Security Laws (Amendment) Act 2014 amends some sections of existing Acts of Parliament in

aspects relating to security in Kenya.

The Act is meant to streamline the criminal justice system in Kenya. The noticeable criminal activity

dealt with by the act being that of terrorism, hence the nick name ‘Terror Law’.

The Security Laws (Amendment) bill 2014 contains 109 provisions and amends about 21 Acts of

Parliament. The bill was passed to law in December 18th 2014 amidst a chaotic sitting in the

National Assembly presided over by the speaker Justin Muturi, with a section of the members of

Parliament having a dissenting opinion on whether the bill should be passed to law as it was without

amendments being made to it. The president, Uhuru Kenyatta signed the bill to law the following

day and the Act took effect upon publication in the Kenyan Gazette.

While the bill was still in the second reading, there were some complaints that the bill went against

fundamental principles of the constitution. The constitution Implementation Commission together

with the Solicitor General held a meeting in state house to discuss possible amendments to the bill.

Among the amendments that were proposed by the commission headed by Simeon Nyachae was to

have an accountability forum for the National Security Service. A provision should be added for the

National Intelligence Service to have authority of the court and account for evidence or information

obtained through eavesdropping.1

The passing of the Security Laws (Amendment) bill to law evoked some mixed reactions from

different stakeholders both locally and internationally.

The Coalition for Reform & Democracy and the Kenya National Commission on Human Rights

petitioned to the High court2 of Kenya to have the whole Act declared unconstitutional. The

1 (Ngirachu, 2014) 2 (Coalition for Reform and Democracy & KNCHR VS. Republic of Kenya & AG, 2014)


9


petitioners were in the view that the amendment act took Kenya back to the dark days of gagging

the media, dictatorship and torture. However, Justice George Odunga the sitting Judge suspended

the application of 8 sections of the controversial Security Laws (Amendment) Act.3

How has the Security Laws (Amendment) Act 2014 eroded the constitution?

Article 238 of the constitution of Kenya 2010 requires that National Security shall be promoted and guaranteed

subject to the authority of the constitution…. The national Security shall be pursued in compliance with the law and

utmost respect of Rule of Law, Democracy Human Rights and Fundamental freedom as an absolute requirement and

not subject to discretion.

1. PROCESS

The civil society was not involved in the making of the bill for scrutiny and comment, as is required

in Article 118 (b) of the constitution of Kenya 2010.

Referendum is required before a new law that limits rights protected by chapter four of the

constitution can be adopted4. It was the petitioner’s claim that all state organs must bow to the will

of the people, stating that, “sovereignty of the country rests with the people and arms of

government only exercise delegated authority.”

2. HUMAN RIGHTS – Chapter 4 constitution of Kenya.

Right to privacy

Section 56 of the Security amendment Act repeals section 42 of National Intelligence Service Act to give the

National Intelligence Service authority to undertake concealed operations. The National Intelligence

Service Director General with approval by the council may give a written approval for his agents to

enter any place, search for any information, monitor communication, install, maintain and remove

anything within the law to preserve national security.

Section 69 of the Security amendment Act amends the Prevention of Terrorism Act by inserting a new section 36A.

National Security Organs may intercept communication for the purpose of detecting, determining &

disrupting terror activities in accordance with procedures prescribed by the cabinet secretary.

3 Sections 12,15,26,29,48,56,58 and 64 of The Security Laws (Amendment) Act 2014 4 ( Article 225 Constitution of Kenya, 2010)


10


The Act has failed to provide clear guidelines as to safeguard and ensure that individual rights to

privacy are respected.

Freedom of expression and right of access to information

Section 12 inserts a new section 66A in the Penal Code Cap 63 Laws of Kenya. It criminalizes publication or

distribution of insulting, threatening or inciting material or images of dead or injured persons likely

to cause alarm to the general public. The offence can attract a fine of Kenya shillings five million,

imprisonment not exceeding 3 years or both. The harsh penalties give a distressing effect making

individuals refrain from exercising their freedom of expression (article 33 Constitution of Kenya

2010) and so the public may not receive or impart some information.

Section 64 of the Act introduces a new section 30A Prevention of Terrorism Act that criminalizes anyone who

publishes or utters a statement that is likely to be understood directly or indirectly encouraging or

inducing another person to commit or prepare to commit an act of terrorism. The element of intent

on the part of the maker is not included in the section.

Rights of accused persons

Section 16 of the Security amendment Act, amends Criminal Procedure Code by inserting a anew section 42A.

Prosecution may withhold evidence from suspects accused of terrorism, drug & human trafficking

and organized Crime until immediately before hearing, but with leave of court. This in contravention

with article 50(2) of the Kenyan Constitution that gives the arrested person right to be informed of the

evidence the prosecution wishes to rely on beforehand.

Police with leave of court, can extend the detention period up to 90 days with leave of court. The

required detention period is 24 hours.

Freedom of Media

Article 34(2) of the Constitution of Kenya, provides that state shall not interfere or have no control over

any person engaged in Broadcasting or the dissemination of information to the public. The state

shall also not penalize any person for any of their opinion in the broadcast or publication

Section 64 of the Security amendment Act introduces a new section 30F to the prevention of Terrorist Act prohibits

any broadcasting of any information that undermines investigation of any terrorist acts without


11


consent of the National Police Service and broadcasting images of victims without the consent of

the victim and the National police service. These provisions give a leeway for unjustified

interferences in journalist activity contrary to article 34 of the constitution of Kenya. It will also

prevent critics in the way authorities handle terrorist attacks.

Freedom of Association and Assembly

Article 36(1) of the constitution of Kenya. Right to form, join or participate in the activities of an

association of any Kind.

Article 37 of constitution of Kenya, which provides for every person’s right to peacefully assemble,

demonstrate and present petitions to public authorities.

Security Law Amendment Act amends the Public Order Act by giving new powers to the cabinet secretary

to designate areas and time for public meetings, gathering or public processions. The act is not clear

on what basis the Cabinet secretary may impose this restriction on public meetings. This new power

limits the freedom of association, and assembly.

Section 96 of the Security Law Amendment Act inserts a new section 4A,B&C to Public Benefits Organizations

Act gives full discretion to authority responsible for registration of a public benefit organization to

classify the organization, and in consultation with Cabinet Secretary from time to time review the

classification.

Despite the hostile response, The Act is not in its entirety ‘bad’ law.

The president has defended the Act saying that it was an emergency result, and that it will help boost

his government’s fight against terror and criminal activities such as cross border trafficking and

poaching. Also in reply to the criticism by the United States of America, he added that, “In the

United States, the FBI and intelligence officers have a carte blanche in the fight against terrorism

and biological warfare. But our law has provided checks by courts of law. What more, Kenya has no

Guantanamo Bay.”5

The new law sets a new National Counter Terrorism Centre that is going to co-ordinate responses to

terror attacks across the country.

5 (Peter Leftie, 2014, Dec 21)


12


The law has provides a system of checks and balances by the court and national assembly. Extension

of the detention period for example, has to be done by authorization from the courts of law.

Interception of communication needs approval from the national assembly.

The act also introduces a new section 74(3) to the National Intelligence Service Act that provide for

the duty of every state organ, agency or public entity that receives any intelligence from the service

to act on or to utilize the intelligence. This will ensure that there is sharing of information and that

the entities have a duty to safeguard the lives and wellbeing of Kenyans.

The Act also prohibits public stripping by adding section 66A to the Penal Code. This will bring to

an end the brutal stripping of women in public, for allegedly dressing in an indecent manner.

In my view, the enactment of the bill shows how committed the Government of Kenya is in trying

to improve the deteriorating security that poses a threat to the safety of its citizens. However in

doing this, the government should ensure that the correct procedures of introducing new law are

followed and that the laws are not in violation to the supreme law of the land, The Constitution.

More to that, legislation should have more defined terms and clear guidelines. The broad terms in

the Act may lead to use of unnecessary power by the authorities given the power. For example, The

National Intelligence Service given power to take measures and efforts aimed at neutralizing threats

against national security. There should be guidelines as to what measures the National Intelligence

Service should take.


13


JURISDICTION IN INTERNATIONAL LAW

Duncan Otieno

First year: Nairobi University Law School

[email protected]

The concept of jurisdiction refers to the power of a State to affect people, property and

circumstances and reflects the basic principle of state sovereignty, equality of states and non-

interference in domestic affairs.1 It is based on the territorial principle, under which a State has

jurisdiction over activities within its territory. Some states also claim jurisdiction over activities

outside their territory which affect their territory2

States can also claim jurisdiction based upon the nationality principle by extending jurisdiction

over their nationals even when they are outside the territory. For example, civil law countries extend

their criminal law to cover their nationals while abroad while common law countries usually only do

so in exceptional cases.

There is also a very narrow category of crimes including genocide and war crimes - over which

States may assert jurisdiction based upon the universality principle, where all States have power to

exercise jurisdiction over those crimes irrespective of nationality or location of the offence.

Almost all States claim jurisdiction under the protective principle, under which a State asserts

jurisdiction over acts committed outside their territory that are prejudicial to its security, such as

treason, espionage, and certain economic and immigration offences.

The most controversial basis for jurisdiction followed by very few States is the passive personality

principle, which establishes jurisdiction based on the nationality of the victim.

In recent years, States have asserted jurisdiction over terrorist acts outside their territory which is

directed against their nationals. Basing their jurisdiction on a combination of the protective and

passive personality principles. Modern counter-terrorism treaties establish jurisdiction among State

Parties based on the presence of the offender within their territory. If persons who are alleged to

1 M. Shaw. International Law. Cambridge University Press. Pg 572. 2 Introduction to International Law by Robert Beckman and Dagmar Butter www.ilsa.org/jessup/intlawintro.pdf accessed on 10th March, 2015.


14


have committed the offence established in the treaty (e.g, hijacking of an aircraft) is present in their

territory, a State Party to the treaty is under an obligation to take the persons into custody, and to

either prosecute them or extradite them to another State Party that has jurisdiction over the offence.

If two or more States have jurisdiction over a particular offence, they are said to have concurrent

jurisdiction. In such cases the State which is most likely to prosecute the offender is the State

which has custody over him. No State may exercise jurisdiction within the territorial sovereignty of

another State. The police of State A cannot enter the territory of State B to arrest a person who has

committed a crime in State A. Also, if a crime takes place in the territorial sea of a coastal State, no

State other than the coastal State my intercept and arrest the ship carrying the offenders.

States enter into bilateral treaties to provide for the extradition of alleged offenders. Sending an

alleged criminal to another State for investigation or prosecution in the absence of an extradition

treaty is referred to as rendition.

The high seas and outer space are outside the territorial jurisdiction of any State. The general

principle of jurisdiction in these common areas is that ships, aircraft and spacecraft are subject to the

jurisdiction of the “flag State”, or State of registration. The general principle is that ships on the high

seas are subject to the exclusive jurisdiction of the flag State, and cannot be boarded without its

express consent. The most notable exception is piracy. All States have a right to board pirate ships

on the high seas without the consent of the flag State.

2. Immunities from Jurisdiction

The principle of sovereign equality of States3 requires that the official representatives of one State

should not be subject to the jurisdiction of another State. For example, the law of the sea provides

that warships are subject only to the jurisdiction of the flag State. Even if warships commit acts

contrary to the right of innocent passage or the laws and regulations of the coastal State, the coastal

State’s only remedy is to escort the offending warship out of the territorial sea.

The principle of State immunity or sovereign immunity provides that foreign sovereigns enjoy

immunity from the jurisdiction of other States. The principle of diplomatic immunity4 provides

that the diplomatic agents of the sending State have complete immunity from the criminal

3 I. Brownliee, Principles of Public International Law. Oxford Press. Pg 221 4 A. Cassesse, International Law, Oxford Press(2001) pg 25


15


jurisdiction of the receiving State. Since this immunity belongs to the sending State and not to the

diplomat, it can be waived by the sending State. Also, the receiving State has the right to expel any

diplomatic agent from its country by declaring them persona non grata. The premises of an embassy or

diplomatic mission as well as its records and archives are also inviolable. The authorities of the

receiving State cannot enter a foreign embassy without the express permission of the head of

mission, even in the case of an emergency.

STATUS OF THE SEAS, OUTER SPACE AND ANTARCTICA

1. High Seas

The high seas are governed by several fundamental principles. First, no State may purport to assert

sovereignty over any part of the high seas5. Second, all States have the right to exercise the freedoms

of the seas, including freedoms of navigation, freedom of over flight, freedom to lay submarine

cables and pipelines, and freedom to conduct marine scientific research. Freedom of fishing was a

traditional high seas freedom but fishing on the high seas is subject to restrictions as set out in the

1982 United Nations Convention on the Law of the Sea. It is generally agreed that freedom of the

seas also includes the right of all States to use the high seas for military purposes, including weapons

testing and naval exercises.

2. Exclusive economic zone

Coastal States are permitted to claim an exclusive economic zone (EEZ) of up to 200 nautical miles

from the baselines from which the territorial sea is measured wherein they have the sovereign right

to explore and exploit the natural resources of the sea and of the seabed and subsoil. The EEZ is

neither under the sovereignty of the coastal State nor part of the high seas. It is a specific legal

regime in which coastal States have the rights and jurisdiction set out in United Nations Law of Sea

Convention, and other States have the rights and freedoms also set out in United Nations Law of

Sea Convention. Other States have the right to exercise high seas freedoms in the EEZ of any State

with respect to jurisdiction over matters outside of economic activities, the principles of jurisdiction

governing the high seas applying the EEZ.

3. Deep Seabed beyond the limits of national jurisdiction

5 Oppenheim's International Law: Volume 1 Peace (9th edn) Cambridge University Press.


16


The natural resources of the deep sea bed beyond the limits of national jurisdiction are vested in

mankind as a whole under the principle of the common heritage of mankind. No State may claim or

exercise sovereignty or sovereign rights over any part of this area or its resources and it is governed

by the International Sea Bed Authority (ISBA) No State or natural or juridical person may

appropriate any part of the area or its resources except under the authority of the ISBA.

4. Outer Space

The principles governing the use of outer space are similar to those that the high seas. First, no State

may purport to assert sovereignty over any part of outer space. Second, all States have the freedom

to use outer space for peaceful purposes. Third, States on whose registry a space object is launched

shall retain jurisdiction and control over the space object and over any persons on board the space

object

5. Antarctica

Official claims to sectors of the ice-covered continent of Antarctica were made by seven states;

Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom. A sector was

also claimed by Admiral Byrd on behalf of the United States, but the United States never officially

adopted Byrd’s claim, and refused to recognize the claims of the six claimant States. In 1959 the

seven claimant States, together with 5 other States whose scientists had been conducting research in

Antarctica (Belgium, Japan, South Africa, the United States and the USSR) entered into the

Antarctic Treaty. The Antarctic Treaty “froze” the claims of the seven claimant States, and stated

that no new claims to sovereignty would be made. It also stated that Antarctica should be used only

for peaceful purposes. The Antarctic Treaty permits States parties to conduct scientific research in

Antarctica and its provisions are generally respected by non-party States as customary law.


17


A CHOICE…

Lucy Monyenye Kenyatta University School of law. Email: [email protected]

I recently remembered something I was pushed to do a little over three years ago. Of course I had

the open option to decline and come up with my suggestions of what I would rather do, but I

decided to listen to and do it. Today, I want to engage you on the different things that you have

done. Basically the choices you have made.

Remember when we were all screaming “Referendum” and there was team banana for yes and team

orange for no? That is one of the decisions you made. I definitely hope no one pushed you to vote

the stand you took on the ballot day.

This is the reason, anyone who voted that day is assumed to have read and understood what the

draft constitution was back then. If you elected to vote against it, there may have been some articles

in there that you did not agree about and vis-à-vis. See, the importance of involving everyone in

constitution making is so that they can air their views and protect their best interest.

The constitution is the foundation of all other laws that are enacted or ratified by the constitution.

It makes sense why when something goes against its provision some people rush to court, and have

them declared unconstitutional. The constitution gives itself the power and goes ahead to declare

anything in contravention with it is null and void.

If you did not read that constitution back then, hope by now you have some motivation to read it.

Reading it alone will open up your mind to different laws of the country laws that protect you. It will

help you judge what goes on around you, in all aspects, and you will be able to know when an act or

omission infringes on its provision and how to seek redress. It will tell you about the different

commissions and what they do. That way you can know who is not working.

That age old stereo type that the laws are hard is just that, a stereo type. The constitution is in

English, no hard words; after all should there be any there is this fat book called a dictionary! Be part

of the system, the law is created for you. Know what is going on, because the law does not exist in a

vacuum.


18


Think about it this way: if you love buying land and developing it there are land laws and regulations

that would tell you who to involve and what to do in order to know whether that land is worth

buying and any pending matters about the land, this is commonly called due diligence. Should you

be arrested the constitution provides for your rights and even prescribes bail, bond, fine or

imprisonment depending on the offence. Do not leave the ‘knowing’ of the law to your advocate.

Did you ever hear of advocates who run with the clients’ money? Well, the law has a way of making

you obtain compensation.

Make that step, to learn and participate and propel the legal and judicial sectors of your life in the

direction you want it to take. Do not just sit there and expect that the few people who you have

entrusted with the duty to make sure your laws are guarded will do it. They at times bend away from

the law, they need you to know and direct them back on the right path. You will also let them know

when someone deviates from the law. So they can serve you better. Make that choice to be part of

what protects you, guard it desirously. It is the only law you have until you choose another one. But

till then, it is all we have we might as well do the right thing. Choose!


19


The Principle of Non-Refoulement

Quincy Kiptoo

Third Year at Riara Law School

[email protected]

‘Scripture makes it clear that to me that there is an obligation to speak out on those who are being

persecuted’1

This is a principle of international law which demands that a true victim should not be tendered

back to his or her persecutor.

According to one of the most elaborate refugee scholars Professor Guy S Goodwynn Gil, it is the

fundamental cornerstone of refugee law2. It proposes that no state shall expel or return (“refouler”) a

refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom

would be threatened on account of his [or her] race, religion, nationality, membership of a particular

social group or political opinion3.

It originated out of the world’s collective memory of the failure to provide a safe haven for victims

of World War two who faced persecution by the genocidal Nazi regime4. A historical example is the

case of St. Louis, an ocean liner that left Hamburg, Germany in 1939 with 907 Jewish passengers.

They were denied entry Visas to Cuba, America and Canada, all citing that ‘refugees were not there

problem’. The liner was forced to return to Europe where most of its passengers were killed5.

The Principle is enshrined in;

i. Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees6

ii. Article 3 of the 1984 United Nations Convention against Torture7

iii. Article 3(1) of the United Nations Declaration on Territorial Asylum8

1 Frank R Wolf, http://en.wikipedia.org/wiki/Frank_Wolf_(politician) (last accessed 3/24/2015) 2 G.S Goodwinn Gill,The Dynamic of Int’l Refugee Law, I.J.R.L Vol 25 No 4 pp 660. 3 Art. 33 1951 Convention Relating To the Status of Refugees 4 Asylum & the Rights of Refugees | International Justice Resource Center,(available at http://www.ijrcenter.org/refugeelaw/,last accessed 3/3/2015 5 Refugee Rights Forum, Policy paper, Principle of Non-Refoulement, June 2008, pg. 4 6 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 7 The 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, entered into force 26 June 1987 8 UN General Assembly, Declaration on Territorial Asylum, 14 December 1967, A/RES/2312(XXII)


20


iv. Article II (3) of the Organization of African Unity Convention Relating to the Specific

Aspects of the Refugee Problem in Africa9.

v. Article 22(8) 1969 American Convention on Human Rights10.

vi. Article III (5)1984 Cartagena Declaration on Refugees11

The Principle obligates states to protect ‘victims of persecution’; inversum only state actors can breach

this principle. It is of particular relevance to refugees and asylum seekers12.

It does not however entail a right to asylum, where States are not prepared to grant asylum to

persons who are seeking international protection on their territory, they must adopt a course that

does not result in their removal, directly or indirectly, to a place where their lives or freedom would

be in danger on account of their race, religion, nationality, membership of a particular social group

or political opinion13, thus States are just mandated to provide access to territory, fair and efficient

asylum consideration procedures14.

In Kenya the principle has been domesticated and is now law by virtue of Section 18 of the Refugee

Act of 2006. Its relevance was evidenced in the wisdom of Judge Majanja in the seminal 2013 Kituo

Cha Sheria case15 where the Kenyan Government Citing National Security concerns sought to round

up all urban refugees and transfer them back to the Camps where conditions were deplorable this

constituted a direct as well as indirect threat to the principle of non Refoulement. Directly; the 5th

petitioner was able to establish a fear of persecution in one of the camps where some of his

persecutors from his country of origin were and the discrimination that followed the press release

was horrific to the extent of giving the refugees no option but to return to their countries of origin

9 OAU Convention Governing Specific Aspects of Refugee Problems in Africa, 1969, 1001 U.N.T.S.45, entered into

force 20 June 1974 10 1969 American Convention on Human Rights “Pact of San José, Costa Rica”,1144 U.N.T.S. 123, entered into force

18 July 1978 11 Cartagena Declaration on Refugees, 22 November 1984, Annual Report of the Inter-American Commission on

Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10, rev. 1, at 190-93 (1984-85) 12 UNHCR Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951

Convention relating to the Status of Refugees and its 1967 Protocol, Para 7 13 This would entail transfer to a safer Third Country; See also E. Lauterpacht and D. Bethlehem, “The scope and

content of the principle of non-refoulement: Opinion”, in E. Feller, V. Türk and F. Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge University Press, Cambridge (2003), para. 76

14 UNHCR, Asylum Processes (Fair and Efficient Asylum Procedures), EC/GC/01/12, 31 May 2001, paras. 4–5. 15 Kituo Cha Sheria & 7 other v Attorney General, Petition no. 16 of 2013. eKLR


21


where persecution awaited. The judge ruled that the cabinet directive was an administrative action

that threatened the principle of Non-Refoulement thus it was quashed.

The African Commission had earlier on in 2004 affirmed the principle in the case of African Institute

for Human Rights and Development (on behalf of Sierra Leonean refugees in Guinea) v Guinea16where the

president issued a radio statement demanding all refugees to be rounded up and deported back to

their countries of origin, it was held that Guinea was in violation of II (3) of the O.A.U Convention

relating to specific aspects of the refugee problem.

The principle has achieved the status of customary international law which is the evidence of

practice of states accepted as law17, for a rule to become international custom, the criteria is twofold;

(i) consistent state practice and (ii)opinion juris (legal obligation behind the practice)18. According to the

United Nations Human Rights Committee this criteria has been satisfied19. It follows from this that

the principle binds all states even those not party to treaties that enshrine it.

The principle of Non-Refoulement has gone beyond treaty law and is now a peremptory norm of jus

cogens, which the international community of states as a whole has agreed as a norm through which

derogation is not allowed and can only be modified by a subsequent norm of similar nature20. Its

nature should be looked at not only in the 1951 and other relevant Conventions but also to

customary international law, arguments of scholars, state practice, and comparable articulations of

the norm in other areas of international law, such as torture21. It is therefore submitted that in light

of it becoming non derogable then it is only prudent that the exceptions provided for it under the

16 (2004) AHRLR 57 (ACHPR 2004) 17 Art. 38(1)(b) United Nations, Statute of the International Court of Justice, 18 April 1946, available at: http://www.refworld.org/docid/3deb4b9c0.html [accessed 24 March 2015] 18 International Court of Justice, North Sea Continental Shelf, Judgment, 1969 ICJ Reports, pg. 3, para. 74. 19 UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law, Response to the Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1953/93 and 2 BvR 1954/93( Available at http://www.refworld.org/docid/437b6db64.html last accessed 3/22/2015) ; See also New Zealand Court of Appeal, Zaoui v. Attorney General, 30 September 2004, (No 2) [2005] 1 NZLR 690, para. 34 20 Art. 54 Vienna Convention on the Law of Treaties .Art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679, (entered into force Jan. 27, 1980) 21 Rene Bruin & Kees Wouters, Terrorism and the Non Derogability of Non-Refoulement, 15(1) INT’L J. REFUGEE L. 5, 7 (2003)


22


relevant Conventions must be greatly reassessed and radically limited, as the International Law

Commission advises all states to bring an end to breach of norms of jus cogens.22

22 Art. 26. I.L.C’s Articles on State Responsibility for Internationally Wrongful Acts. 53 UN GAOR Supp. (No. 10) at 43, U.N. Doc. A/56/83 (2001)


23


RESCUING ARTICLE 26 OF THE CONSTITUTION OF KENYA

2010

Alphonce Barrack Ogwel Riara Law School

Chairperson - Riara University Interim Electoral Commission


The Constitution of Kenya 2010 is without doubt the supreme source of law in Kenya, and as such

any other law, written or non-written derives its legitimacy from the Constitution, anything to the

contrary is null and void to the extent of its incompatibility with the Constitutional demands1

The framers of the Constitution, therefore found it absolutely important to have the Bill of Rights in

place, to ensure that the Constitution jealously safeguards the minimum irreducible standards of

fundamental rights and freedoms, and as such the Bill of Rights also provides for circumstances for

limitation of rights and the extent of such limitations2.

The Right to Life under Article 26 of the Constitution is a fundamental right and for the purposes of

this article I contend that it is the central origin of all other rights. The Right to life is a right from

which all other rights derive their legitimacy from, without the right to life an individual is not able

to enjoy any other fundamental right and freedom under the Bill of Rights the same was observed

before the African Commission on Human Rights, in the decision of Forum Of Conscience Vs Sierra

Leone3, where the Commission held that “The right to life is the fulcrum of all other rights. It is the fountain

through which all other rights flow and any violation of this right without due process amounts to arbitrary deprivation

of life...”

How then should we protect, safeguard or even ensure that the right to life is not compromised so

that we are able to enjoy the other fundamental rights and freedoms under the Bill of Rights? The

Constitution at Article 26(2) provides that life begins at conception, the same is seemingly affirmed

by section 211 of the Penal Code: where a woman convicted of an offence punishable with death

and is found to be pregnant, can only be sentenced to life imprisonment, this provision of the penal

1 Art. 4 of the Constitution of Kenya 2010. 2 Art. 24 of the Constitution of Kenya 2010. 3 ACHPR 223/98


24


code introduces the idea that criminal liability cannot be apportioned to or assigned to innocent

parties individual. With that there is no contention about at what point does life begins.

Article 26(3) is very express on the terms of intentional deprivation of life and as such provides that

life cannot be taken away except to the extent authorized by the Constitution or any other written

law. The Constitution within the meaning of Article 259 should be construed purposively and in a

manner that advances the rule of law, human rights and fundamental freedoms in the Bill of Rights

and further in a manner that permits the rule of law, what then are the true purposes for the

provisions of Article 24 of the Constitution.

Article 24(1)(a)(b)(c) demands that before a fundamental a right or freedom is limited, a court must

take into account the nature of the fundamental right or freedom, the importance of the purpose of

limitation and the nature and extent of limitation, this position was affirmed by Justice Mohamed

Warsame in Republic vs Dickson Mwangi Munene4, where he held the humble view that “the

paramount consideration in sentencing in criminal matters is the safety of the society, as we

all abhor transgressions against fellow citizen or human beings”. taking into account for

instance, the importance and purpose of limitation of the right to life, does it then mean that as a

form of punishment for a crime, it is important to limit all other fundamental rights and freedoms

by having the offender lifeless?. Furthermore Article 24 further demands that it must be taken into

account whether there exists any other less restrictive means to achieve the purpose of the

limitation. It is important to this point to accept the fact that deprivation of life indeed interferes

with enjoyment of other fundamental rights and freedoms

Given the Sanctity of life from a religious point of view life has to be protected and jealously

safeguarded from eminent or likely threats. John Locke in his Second treatise affirmed the need to

preserve life by stating that because we are all equal and independent, no-one ought to harm anyone

else in his life, health, liberty, or possessions. This is solely because we are all the work of one

omnipotent and infinitely wise maker; we are all the servants of one sovereign master, sent into the

world by his order to do his business; we are all the property of him who made us, and he made us

to last as long as he chooses, not as long as we choose; we have the same abilities, and share in one

common nature, so there cannot be any rank-ordering that would authorize some of us to destroy

4 [2011]eKLR


25


others, as if we were made to be used by one another, as the lower kinds of creatures are made to be

used by us. Everyone is obliged to preserve himself and not opt out of life willfully.

This particular excerpt brings in two angles, one the idea of opting out of life willfully and the idea

of taking a way on one’s life by another

A criminal offence is usually considered a crime against the entire society and therefore the state has

the responsibility of meting out punishment on behalf of the offended person. to that effect if a

death sentence is passed then it is the state that executes the person. It is however important to note

that in Kenya, death penalty has continuously been passed by the courts despite the fact that the last

known executions happened in 1987 when eleven junior air-force officers were executed following

conviction for treason in connection with attempted coup in 1982, this again brings in the question

as to whether Kenya has silently ceased to carry out death sentences.

Criminal justice to this effect is left with the state to deal with within the ambits of the law,we have

had many death sentences passed and some being executed regardless of the time frame, the

question remains is it a fair practice on humans? I do not dispute that the law can sometimes be

stringent but what then are we doing to negate that?

In 2009 the then President Mwai Kibaki commuted death sentence and substituted the same with

life imprisonment,that decision was met with tough resistance.In the case of Dickson Mwangi

Munene5Warsame JA held that such a decision as an utter disregard of the Presidents Constitutional

responsibility and he ought to have exercised his cardinal responsibility of signing of all pending

death warrants.

Despite the Dickson decision I still hold firmly that death sentence grossly violates the constitution.

Article 25 of the Constitution so demands that no one be treated or subjected torture and cruel,

inhuman or degrading punishment, the manner in which life is taken away in the case of a death

sentence violates Article 25 of the Constitution.

In conclusion in Republic vs Milton Kabulit & 6 others6 Anyara Emukule J stated that the earliest

recorded case of murder was that of Cain who killed his brother Abel.

5 [2011]eKLR 6 [2012]eKLR


26


When called upon by the Supreme Judge (God) to account for his deed, Cain put in a disclaimer

that he had no idea where his brother Abel was, When the Supreme Judge [God] told him that the

blood of Abel which he had spilt upon the earth cried to Heaven for revenge, Cain realized the

enormity of his crime, and cried in fear that anyone who found him would be at liberty to kill him in

return. The Supreme Judge assured Cain that anyone who killed Cain would suffer vengeance seven-

fold [from the Supreme Judge]. Despite the fact that Cain was not at all remorseful for the murder of his

brother, Cain was not sentenced to death but to a life of hard labour he would earn his livelihood by

the sweat of his brow

From this we observe that once it is shown that one has killed then anyone who takes away the life

of the offender is bound to suffer the same blow.

“An eye for an eye will surely leave all of us blind”, so stated by Mahtama Gandhi, the great

apostle of nonviolence protest and hero of the struggle for Independence from colonialism in the

Indian sub-continent,

I call for respect for the gift of life.


27


Photo Credits: www.foxnews.com www.voanews.com www.waryapost.com www.zoriah.net Published by: Kenyan Legal

For purposes of inquiries, contact us through: Email: [email protected] or [email protected] Phone Number: +254 (0) 715 907 898 Domain: www.kenyanlegal.com

Social Media Facebook: www.facebook.com/kenyanlegal Twitter: www.twitter.com/The_Kenyan_Legal

kenyan legal issue no. 15

Documents