The 2010 Kenyan constitution and the hierarchical place of international law in the Kenyan domestic legal system: a comparative perspective

The prominent use of international human rights law in a state’s domestic legal system depends on the hierarchical place occupied by international law in general, and international human rights law in particular, among the sources of law in that particular legal system. Two systems of receipt of international law in the domestic legal systems have been used by different states: monism, which looks to directly incorporate ratified international law treaties in a state’s domestic legal system; and dualism, which entails the transformation of international law into the domestic legal system through the domestication of ratified international law treaties by means of the enactment of parliamentary legislation. Kenya, as a Commonwealth country, has always primarily followed a dualist approach which requires that domesticating legislation be enacted by parliament for ratified international law treaties to have application in the domestic legal system. However, with the promulgation of the new Constitution in August 2010, international law has been given a more prominent role in the domestic legal system through the inclusion in the Constitution of a provision directly incorporating ratified treaty law into the Kenyan legal system as a legitimate source of law. This article is primarily focused on analysing the hierarchical place of international law, specifically international human rights treaty law, in the Kenyan domestic legal system in the context of the new constitutional dispensation. It recommends that in order for international human rights law to have a prominent place in the governance of the country, article 2(6) of the Constitution should be interpreted progressively so as to give international human rights law norms an infra-constitutional but a supra-legal status in the domestic legal system. In this way, international human rights law will act as a bulwark against recession to totalitarian rule, as well as safeguard the democratic and fundamental rights protection gains that were won in the struggle for constitutional change.Department of HE and Training approved lis

Determinants Of Under Nutrition Among School Age Children In A Nairobi Peri-Urban Slum

Background: Malnutrition is a major public health concern affecting a significant number of school age children influencing their health, growth and development, and school academic performance. Objective: To establish the determinants of under nutrition among school age children between 6-12 years in a low-income urban community. Design: A cross-sectional descriptive study. Setting: Kawangware peri-urban slum, Nairobi, Kenya. Subjects: Three hundred and eighty four school children aged 6 - 12 years. Results: A total of 4.5% were wasted, 14.9% underweight and 30.2% stunted. The children who were over nine years of age were more underweight (72.4%, p=0.000) and stunted (77.2%, p=0.000) than those below eight years. The girls were more wasted (29.1%, p=0.0 13) than the boys (18.2%), whereas the boys were more stunted (65.7%, p=0.003) than the girls (50.7%). The other variables found to have had significant association with the nutritional status of the children were: monthly household income (p=0.008), food prices (p=0.012), morbidity trends (p=0.045), mode of treatment (p=0.036) and school attendance (p=0.044). Conclusion: The findings of this study show evidently that there is under nutrition among school age children, with stunting being the most prevalent. The Ministry of Education and Ministry of Health therefore need to develop policies which can alleviate under nutrition among school age children. We also recommend that awareness be created among the school age children, parents and teachers, on the dietary requirements of both boys and girls. East African Medical Journal Vol. 85 (10) 2008: pp. 471-47

Limitation of socio-economic rights in the 2010 Kenyan Constitution: a proposal for the adoption of a proportionality approach in the judicial adjudication of socio-economic rights disputes

On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause

The Place of the "Minimum Core Approach" in the Realisation of the Entrenched Socio-Economic Rights in the 2010 Kenyan Constitution

The high levels of poverty, inequality and socio-economic marginalisation that bedevilled Kenya for generations led to a struggle for a new constitutional dispensation, which culminated in the promulgation of a new, egalitarian and transformative constitution in August 2010. This constitution entrenched justiciable socio-economic rights within an elaborate Bill of Rights. Though an important step in the process of the egalitarian transformation of the country, the challenge remains to transform these precepts into practice with their scrupulous implementation through legislative, policy and programmatic frameworks, as well as judicial decision-making. This article argues that, in order to achieve the intended egalitarian transformation, Kenya must adopt a strong interpretive approach, with sufficient foundational standards for the translation of these rights into tangible realities for Kenyans. Kenya must therefore explicitly adopt a minimum core approach for the realisation of these rights to transform them into practical realities for the poor, vulnerable and marginalised Kenyans

Poverty, inequality and socio-economic rights: a theoretical framework for the realisation of socio-economic rights in the 2010 Kenyan Constitution

Doctor Legum - LLDPoverty and inequality are deeply entrenched in Kenya, with the country being one of the mostunequal countries in the world. To eradicate poverty and inequality, enhance the achievement ofsocial justice, fast-track human development, as well as to entrench participatory democracy and a culture of justification in governance, Kenya has, for the first time, entrenched justiciable socio-economic rights (SERs) in its 2010 Constitution. In this thesis, I undertake a criticalanalysis of the prospects for the implementation and enforcement of the entrenched SERs as well as the probable challenges that Kenya may face in their realisation. In this endeavour, the thesis develops a theoretical and interpretive approach for the realisation of these entrenched SERs. It entails an expansive analysis of the nature, scope, content and extent of the SERs entrenched in the 2010 Kenyan Constitution, and especially the place of international human rights obligations contained in customs and ratified international human rights treaties due to the provisions of the 2010 Constitution which espouse the direct application of international law in Kenya’s domestic legal system. It is submitted in this thesis that in order to improve the socio-economic conditions of the poor, vulnerable and marginalised groups in Kenya, there is a need for their socio-economic as well as political empowerment to enable them to effectively take part in societal decision-making in both the public and private spheres with regard to resource (re)distribution. The theory of dialogical constitutionalism, based on the constitutionally entrenched principle of popular participation in governance and public decision-making, is aimed at the realisation of both political and socio-economic empowerment of these groups. Even though the theory of dialogical constitutionalism underscores the importance of litigation in the achievement of the transformative aspirations of the 2010 Kenyan Constitution contained in the entrenched SERs, it acknowledges that litigation is not the panacea of SER enforcement, and that other political and advocacy strategies play an important role in the emancipation of the socio-economically deprived groups in society. The thesis thus advocates a multi-pronged strategy which espouses the equal participation of all sectors of society in a collaborative and cooperative deliberative effort aimed at the full realisation of the entrenched SERs. To accompany the above theoretical framework for the interpretation and implementation of the entrenched SERs, the thesis further proposes a transformative and integrated approach which combines the progressive aspects of the minimum core approach and the reasonableness approach. This is an approach of purposive interpretion which, in the first instance, envisages the courts undertaking a strict and searching scrutiny of the SER implementation framework developed by the political institutions of the State to ensure that sufficient provision has been made for the basic necessities of the most poor and vulnerable groups in society, basically the espousal of a minimum core content approach. The approach entails the requirement that should the SER implementation framework fail to provide this basic minimum to vulnerable groups, and the political institutions do not provide a substantive justification as to the failure, then the courts should find the relevant SER implementation framework per se unreasonable and thus invalid. However, should the implementation framework provide sufficiently for the basic essentials for vulnerable groups, the courts should then proceed to review it using the reasonableness standards that have been developed by the South African Constitutional Court. The rationale for this searching analysis is the acknowledgement that if the needs and interests of the most indigent and marginalised in society are not catered for, the entire corpus of rights in the Bill of Rights becomes redundant. The thesis then undertakes a case study of two rights, the right to food and the right to housing, using the theoretical and interpretive approaches developed in the previous chapters of the thesis. On food security, the thesis finds that Kenya is a food insecure country with a declining food production capacity. This is basically due to a lack of subsidy to farmers, global warming leading to intermittent rainfall, lack of investment in sustainable agriculture as well as a fragmented and contradictory legislative and policy agenda. In response to this situation, the thesis proposes the adoption of a livelihoods approach to food security in Kenya, based on the constitutionally entrenched right to food and other supporting rights. This approach advocates the enhancement of the food entitlements of the different sectors of the Kenyan society to ensure their access to adequate and nutritious food, be it through self-production or through the market. On the right to housing, the thesis finds that housing plays a crucial role in ensuring that people are able to have a holistic, dignified and valuable existence. However, Kenya faces a dire housing situation, with the majority of Kenyans, both in rural and urban areas lacking adequate shelter and sanitary conditions, evidenced by the large informal settlements in urban areas and the squatter phenomenon in rural areas. With the entrenchment of a justiciable right to adequate housing in the 2010 Constitution, the study finds that several legislative and policy reforms are underway to improve the housing situation, with efforts being made to draft the Landlord and Tenant Bill 2007, the Housing Bill 2011, the Evictions and resettlement Guidelines and the Evictions and Resettlement Procedures Bill, 2012, among others. The thesis proposes that these legal reforms must be undertaken within an environment of cooperative and collaborative strategic partnership involving all sectors of society so as to ensure that the housing concerns as well as interests of all are catered for

Vaccinations with live-attenuated Leishmania major promastigotes and challenge infection with L. major in balb/c mice

Background: Currently there is no vaccine available in use against any form of leishmaniases worldwide. Objective: To assess potential of a live-attenuated Leishmania major promastigates, for protection against a challenge infection with L. major in BALB/c mice. Design. A laboratory based study. Setting: Study was carried out at Centre for Biotechnology Research and Development, Kenya Medical Research Institute, Nairobi. Results. The greatest protection against challenge with L. major was seen in mice immunised with live parasites (

Limitation of Socio-Economic Rights in the 2010 Kenyan Constitution: A Proposal for the Adoption of a Proportionality Approach in the Judicial Adjudication of Socio-Economic Rights Disputes

On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.  &nbsp

Interrogating the competence of the African court of justice and human rights to review

Globalisation and the transfer of powers from state constitutional systems to international organisations (IOs) have led to several deficiencies, especially with regard to checks and balances in global governance. The need to inculcate the rule of law and constitutionalism in global governance has therefore gained currency in the 21st century. This has been exemplified by calls for the reform of the United Nations (UN) and the extensive reforms in regional IOs, such as the European Union (EU), with emphasis on institutional balance and the tempering of political power with institutional controls.Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2010.A dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Dr. Jacqui Gallinetti Faculty of Law, University of the Western Cape, Cape Town, South Africa. 2010.http://www.chr.up.ac.za/Centre for Human RightsLL

An argument for South Africa's accession to the optional protocol to the international covenant on economic, social and cultural rights in the light of its importance and implications

The universality, indivisibility, interdependence and interrelatedness of all rights have been universally acclaimed since the drafting in 1948 of the Universal Declaration of Human Rights. However, despite the doctrine of indivisibility, civil and political rights (CPRs) have for a long time been treated as being enforceable judicially at the national, regional and  international levels, while socio-economic rights (SERs) have not. With the elaboration and adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), which  mandates the Committee on Economic, Social and Cultural Rights (CESCR) to consider individual communications detailing the violations of SERs, the justiciability of SERs was also fully recognised at the international level.This paper undertakes an analysis of the importance and implications of the individual communications procedure under the OP-ICESCR and details some of the reasons why it would be beneficial for South Africa to accede thereto. The argument for accession by South Africa to the OP-ICESCR departs from the premise that South Africa's ratification of the ICESCR is imminent. Having signed the ICESCR on 3 October 1994, the South African Cabinet on 10 October 2012 decided that South Africa should ratify the Covenant. The authors argue that acceding to the OP-ICESCR will complement domestic protection and will confirm South Africa's global leadership in the field of justiciable SERs. Logic dictates that South Africa should confirm at the international level its position as a world leader on the national justiciability and legal enforcement of SERs, as indeed it has done during the drafting process of the OP-ICESCR. Accession to  OP-ICESCR, the argument continues, will not detract from the country's sovereignty, especially in the light of the requirement of the exhaustion of domestic remedies, including the condition that applicants must show that they have suffered a "clear disadvantage". In any event, South Africa  already has undertaken obligations as to SERs under regional human  rights treaties that are equal to and in some respect more arduous than  the obligations emanating from the ICESCR.       &nbsp