Double Invisibility: Realising the Right to Vote for Persons with Intellectual Disabilities in Kenya

The right to vote is plausibly one of the most fundamental rights held by a citizen. It upholds the notion of equal citizenship and is intertwined with personal dignity. Historically, PWIDs have been denied their voting rights on the grounds that their disability impairs their ability to make rational decisions. The concept of making independent political judgments is fundamental to democracy; thus, if one is dependent on others to vote, they may become susceptible to undue influence or electoral fraud ultimately undermining the legitimacy of elections. Although reasonable, this perspective overlooks the unique demands of PWIDs who deserve an equal right to vote. The Constitution of Kenya recognises every citizen’s voting rights without unreasonable limitations. Despite this, PWIDs still encounter restrictions which stem from a lack of understanding of their unique demands. The imposition of blanket restrictions, such as those related to ‘unsound mind’, lack clear assessment criteria for voting purposes. This leads to uncertainty and misconceptions that PWIDs cannot make informed voting decisions. Through the relational personhood concept, this paper aims to demonstrate that PWIDs are not of unsound mind, but in the absence of good communication and require support to vote. It suggests the provision of reasonable accommodation to resolve the limitations encountered by PWIDs in Kenya

Using a Sledgehammer to Crack a Nut? Kenya’s Approach to the Detention of Asylum Seekers and Refugees in Prisons and Police Stations

Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides that every person has the right to liberty and security of person. This right extends to asylum seekers and refugees and requires that they are not subjected to arbitrary detention such as detention that is disproportionate. In Kenya, the detention of asylum seekers and refugees is guided by Section 2 of the Refugees Act and Sections 4 and 12(3)(g) of the Persons Deprived of Liberty Act. These provisions provide for the administrative detention of asylum seekers and refugees in carceral institutions such as prisons and police stations. Using doctrinal analysis and qualitative research, this paper argues that this detention approach, which pursues administrative detention of asylum seekers and refugees through carceral facilities, is disproportionate. This is because the detriment to the right to liberty of asylum seekers and refugees outweighs the administrative benefits to be achieved by such detention. By being disproportionate, this approach contravenes Kenya’s international obligations under the ICCPR. To resolve this, this paper recommends the adoption of a detention approach that is more likely to be proportionate by eliminating the use of carceral institutions in the detention of asylum seekers and refugees

Compulsory Licensing for Pharmaceutical Access in East Africa: The Challenge of Kenya\u27s Failure to Adopt Article 31bis of the TRIPS Agreement

Sub-Saharan Africa, including East Africa, grapples with profound public health challenges exacerbated by limited access to pharmaceuticals. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), enacted in 1995, introduced patent rights for pharmaceuticals, restricting generic production. Even so, Article 31 of the TRIPS Agreement permits compulsory licensing to facilitate cheaper generic versions, but this is underutilised by smaller economies like those in the East African Community (EAC) due to economic constraints. To help address this challenge, Article 31bis allows countries in a Regional Trade Agreement (RTA) to pool demand and import medicines collectively, thus boosting economies of scale. It also permits local manufacturing and re-export of pharmaceuticals within the RTA. The EAC qualifies for this mechanism, but many of its members lack the implementation legislation required to use the system. This paper focuses on the implications of Kenya’s lack of such implementing legislation to medicine accessibility in the EAC. This is because it is well positioned, given its growing pharmaceutical sector, to potentially become a regional hub for medicine production and to attract foreign supplies. Although creating such legislation will not solve all the challenges around the usage of compulsory licenses, its creation is important to ensure the system is available to the EAC in its aspiration to increase the accessibility of medicines

Algorithmic Bias in Hiring Algorithms: A Kenyan Perspective

The use of machine learning algorithms has permeated into nearly all aspects of life. With this steady integration, tasks previously handled by humans are increasingly falling into the ‘hands’ of machines. Ideally this would be celebrated as a great improvement for mankind. Tasks that were previously riddled with human bias such as hiring would now be performed by an ‘omniscient algorithm’ that could harbor no bias therefore resulting in fair outcomes for the previously oppressed. However, this is not the case. The integration of machine learning algorithms in the hiring process risks further exacerbating existing bias that was prevalent or introducing new data-driven bias. The question then is how to contend with this novel form of discrimination: algorithmic discrimination. The answer to combating algorithmic discrimination is algorithmic fairness. The goal should not be to create ‘fair’ algorithms but rather to detect and mitigate fairness-related harms as much as possible. By doing so, a balance can be struck between the competing interests of innovation and employee rights. This article demonstrates that algorithmic discrimination during hiring is a real threat to the Kenyan jobseeker. Although this form of discrimination can be addressed by Kenyan law, more needs to be done to detect and mitigate fairness-related harms as much as possible

BIT by BIT: Regulation of Highly Capable AI Through the Remodelling of Bilateral Investment Treaties

This study addresses the pressing need for regulatory frameworks to govern highly capable Artificial Intelligence (AI) systems, which pose significant risks such as potential misuse to create or enhance biological threats. The research investigates the indirect role of Bilateral Investment Treaties (BITs) in regulating highly capable AI, particularly focusing on redesigning BIT clauses in light of the risks associated with the technology. Through qualitative research and examination of BIT clauses, the study finds that while current BITs do not explicitly address the risks posed by highly capable AI, there is potential for redesigning BIT provisions to do so by: i) amending the definition of ‘investment’ to explicitly include data centres, which play a significant role in the development of highly capable AI, and ii) broadening the scope of scenarios where police powers can be exercised to include AI risks. This study subsequently invites further research on the implementation of the proposed redesigned BITs to mitigate the risks associated with highly capable AI

Equitably Assessing the Weight of Non-Monetary Contributions in Kenya

Article 45 of the Constitution of Kenya establishes the family as the natural and fundamental unit of the society. Marriage is one of the main ways of creating a family, and the spouses in such a marriage are deemed to have equal rights. Upon the dissolution of the marital union, the spouses are faced with the challenge of dividing the property they acquired during their union. In this division, courts have taken opposing stances. One faction advocates for the equal division of property based on the fact that the spouses have equal rights. Another faction claims that marital property should be distributed on the basis of contribution since equality of rights does not necessarily translate to equal division of property. Consequently, the value of monetary and non-monetary contributions becomes increasingly important when dividing matrimonial property. Unfortunately, non-monetary contributions have historically been left out up until the enactment of the Matrimonial Property Act of 2014. Even then, in the eyes of judicial officers, non-monetary contribution appears to be a lesser consideration given the ease of proving monetary contributions. Using a doctrinal analysis, this paper argues that non-monetary contribution is not accorded the same consideration as monetary contributions, which goes against the constitutional standard of equity. It is suggested that an application of a mathematical formula can remedy this inequity by placing each of the contributions on the same footing when dividing matrimonial property

The Delicate Balance: Exploring the Interplay Between the Right to Healthcare Services and the Right to Strike for Medical Practitioners in Kenya

The right to strike of medical practitioners under the Constitution of Kenya (2010), is the best tool that an employee has against non-performance by an employer, given that both parties have varying bargaining powers. There exists an endemic nexus between the right to healthcare services guaranteed by the Constitution of Kenya, the right to health as well as the right to strike for healthcare practitioners. This delicate relationship between these competing rights necessitates a harmonious balance between them that will achieve the greatest good. This article analyses the concept of essential services and the rights and limitations of those rights that medical practitioners have as essential service providers. It looks at how the Kenyan courts as well as different jurisdictions have handled the issue altogether, in an attempt to strike a balance between the two conflicting rights. While striking a balance between these two competing rights, the path that will lead to serving the best interest of the public, both in personam and in rem has to be taken not only by the courts and legislature but other relevant stakeholders including the medical practitioners and their employers. The steps taken thus far by the Employment and Labour Relations Court (ELRC) in adopting the concept of minimal service during strikes by medical practitioners, who are essential service providers, are notable but a lot is left to be desired to achieve legal certainty

Emerging Horizons: Transformative Prudentialism and the Renaissance of Judicial Philosophy in the Supreme Court of Kenya

After over a decade of extensive work, the Supreme Court of Kenya has built a substantial track record. Consequently, a thorough appraisal of the judges’ efforts is undoubtedly warranted, given the Court’s crucial role in safeguarding democracy and upholding the rule of law in Kenya. How judges go about deciding cases has consistently attracted considerable scrutiny. Moreover, in the study of judicial behaviour, there are various considerations as to which factors affect the outcomes of judicial decisions. Judicial philosophy, being one such factor, is a chosen, articulable, and rationally defensible method of judicial decision-making that generally includes an explicitly articulated view of many legal concepts, including separation of powers. This paper conducts a hermeneutic analysis of Supreme Court cases to investigate the judicial philosophy of the Supreme Court regarding the concept of separation of powers and evaluate its appropriateness for the post-2010 constitutional dispensation. It is argued that the philosophy the Court has adopted is not clear-cut, it is comprised of excessive restraint and sporadic overreach. Consequently, it is proposed that the Court should embrace transformative prudentialism as a philosophy because unlike judicial restraint or judicial activism, it is not tied down to determined actions irrespective of the circumstances, it seeks to meet the aims of transformative constitutionalism