Eliminating ‘Thick’ Borders: Analysing the Legal Framework on Non-Tariff Barriers in the Africa Continental Free Trade Area Agreement

African countries have long recognised that regional integration is vital if Africa is to optimise its growth potential and boost its bargaining power in the global marketplace. This explains the proliferation of several Regional Trade Agreements (RTAs) across the continent culminating in the conclusion of the landmark African Continental Free Trade Area (AfCFTA). However, despite the concerted efforts to boost intra-trade among African countries, African borders remain ‘thick’ because of the continued existence of Non-Tariff Barriers (NTBs) that reverse gains made from initiatives of trade liberalisation. Accordingly, if the landmark Africa Continental Free Trade Area (AfCFTA) is to be successful, it must strive to address and eliminate Africa’s NTBs. It is argued in this paper that while the AfCFTA makes some important strides in reducing NTBs in intra-African trade, there are still some significant gaps in the AfCFTA’s provisions on NTBs that need to be addressed. Some of these gaps include: the lack of a comprehensive legal framework that adequately addresses all the categories of NTBs and the lack of clear guidelines on how to promote harmonisation among conflicting measures among RTAs. This article singles out and analyses provisions on NTBs under the AfCFTA with the aim of determining whether the AfCFTA addresses the challenges currently facing other RTAs in tackling NTBs. The author will identify shortcomings in the legal framework of the AfCFTA with the aim of making proposals to address them.

Hut at Strathmore – TWAIL for a Culturally Appropriate Teaching of Public International Law in African Law Schools

The teaching of Public International Law (PIL) in African law schools is backward. While Article 13 of the International Covenant on Economic, Social and Cultural Rights demands that, for education to be acceptable, it must also be culturally appropriate, the teaching of PIL in our schools is largely only reflective of European westernisation. This study reviews relevant literature in law, sociology, international relations, history and politics, and rely on surveys on PIL syllabi in select leading African law schools to attempt to make this violation more explicit. As a recommendation of a possible way forward, the study provides PIL as taught in the Hut at Strathmore Law School. The Hut is an intellectual movement within Strathmore Law School that has tried to contextualise Third World Approaches to International Law (TWAIL) to Africa.

Right of Appeal under Section 35 of the Arbitration Act of Kenya

An arbitral award is final and binding on the parties but may be set aside for failure to adhere to due process requirements. Section 35 of the Arbitration Act (Act hereafter) provides grounds for setting aside an arbitral award. It does not state whether decisions of the High Court on setting aside an arbitral award are final and thus cannot be appealed. In Nyutu Agrovet Limited v Airtel Networks Limited, the Supreme Court interpreted Section 35 to allow appeals on High Court decisions of setting aside an arbitral award. This paper analyses the Supreme Court decision and finds that it abrogated the internationally recognised arbitration principles such as party autonomy, the finality of arbitral awards and limited court intervention. Additionally, the paper discusses the implications of the decision on arbitral practice in Kenya. Using literature review and comparative jurisprudence, it advances that Section 35 does not allow appeals on decisions of the High Court. To this end, it proposes better interpretation techniques to safeguard the sanctity of arbitral awards.

Reflections on Direct Access to the African Court on Human and Peoples’ Rights: A Cul De Sac?

Individuals and NGOs can directly access the African Court on Human and Peoples’ Rights if the state against which a case has been filed has made an optional declaration granting this access. Alternatively, they can access the Court if the African Commission on Human and Peoples’ Rights refers communications to it. However, two main barriers have riddled this structure. One, the few states that had made the optional declaration have begun to rapidly withdraw from it. Two, the African Commission, which was expected to mitigate such a situation where few states are making the optional declaration, is hardly referring cases to the Court. This paper examines these two barriers in tandem. It argues that if this status quo is sustained, then, sooner rather than later, this path treaded may lead the African human rights system to a cul-de-sac – back to a one tier system, composed of an accessible Commission and a Court inaccessible to both individuals and NGOs. Drawing lessons from the European and Inter-American Human Rights system, it recommends preventing this eventuality by amending the African Commission’s 2020 Rules of Procedure to provide for a default procedure of referral of cases from the Commission to the Court.

Asking for Young Offenders: What is the Fate of Restorative Justice within Nigeria's Discretionary Diversion Policy?

The young offenders’ justice system in Nigeria represents an area where the law has failed to respond properly to the needs it was designed for. Many empirical studies conducted over 17 years show that young offenders in Nigeria are continuously subjected to the state-sanctioned processes and practices—the formal justice system—which goes against the best interest of the child principle. This is despite the fact that Nigeria has ratified the United Nations Convention on the Rights of the Child and domesticated it through the Child’s Rights Act 2003 (CRA). The problem is that the diversion policy framework under the CRA offers discretionary powers to state officials who drive the formal justice system. This allows these officials to choose whether to divert cases and to select which restorative justice mechanisms to divert to at any level of the young offenders’ justice system. This paper argues that taking away such discretionary powers can help to improve the treatment of young offenders under the Nigerian criminal justice system. Drawing lessons from New Zealand, this paper suggests, among others, a mandatory diversion policy for a committed practice of juvenile restorative justice in Nigeria.

Violent Extremism in the Northern Frontier Counties of Kenya: Exploring Human Security as a Sustainable Countering Strategy

The contemporary rise of terrorism as a form of violent extremism has led the government to adopt a narrow state-centric security approach to mitigate these threats. Violent extremism compromises peace, security, and communal cohesion, and often thrives on human security deficits such as marginalisation and disenfranchisement from the decision-making processes. The prominence of a state-centric security approach has overshadowed the human security dimension of countering violent extremism, thereby compromising state-society relations. On the contrary, a human security approach which entails freedom from fear and freedom from want, is viewed as a holistic approach to security that secures both the state and society. Less debated, however, is the relationship between countering violent extremism and societal marginalisation as viewed through the lens of human security. This paper argues that the narrow state-centric approach adopted by the Kenyan government in the Northern Frontier Counties has continually marginalised the community living in these counties and is proving unsustainable in countering violent extremism. As a point of departure from this approach, a more human security centred approach is suggested which is likely to be more sustainable in countering violent extremism and more successful in reversing the trend of marginalisation that has arisen from the narrow state-centric approach.

Insanity of Kenya’s ‘Guilty but Insane’ Verdict

A person may be insane while committing an unlawful act, leading them to raise the defence of insanity in court. This defence argues that the person’s illness prevented them from having the criminal intent needed to satisfy the mens rea requirement for criminal responsibility. The successful establishment of this defence in Kenya leads to the court issuing a special verdict of ‘guilty but insane’ (GBI). This verdict sees that the defendant is incarcerated in a place of safe custody where they can be treated for the illness that contributed to their commission of the offence. While isolation and treatment of the defendant form the primary aims of the verdict, this paper demonstrates that they are barely achieved in Kenya. This is because the conditions crucial to the verdict’s implementation–medication and therapy, a place of custody and the presence of psychiatrists–are wanting in the country. After examining the institutional barriers to the realisation of the verdict’s objectives, the paper studies various responses to these challenges by Kenya and Ghana. It finds solutions that promote the realisation of the verdict’s aims such as the provision of educational opportunities in forensic psychiatry.

An Inquiry into the Limits of Judicial Intervention in the Impeachment Process of Governors in Kenya

Article 181(2) of the 2010 Constitution of Kenya instructs Parliament to enact a law highlighting the process of impeachment of a county governor. This has been realised through the County Government Act, Section 33. Section 33 recognises the County Assembly and the Senate as the bodies responsible for this process. However, the County Government Act fails to address at what point the courts can intervene in the impeachment process of governors. This is often a problematic issue as the doctrine of separation of powers requires each arm of government to perform their functions independently. Nonetheless, Kenyan courts have the duty to protect aggrieved parties whenever their rights are threatened. However, the point at which they can intervene is not stated under any law and this creates confusion between the role of courts of law in the impeachment process, on the one hand, and that of the County Assembly and the Senate, on the other. It is not clear which role should be discharged first. This paper, therefore, seeks to address this confusion through a critique of the Wambora case, a case that was appealed up to the Supreme Court. The paper also suggests a complimentary system whereby the Senate, County Assembly and the courts can work in harmony, and, do away with the confusion.