Africa Nazarene University Law J
The Africa Nazarene University Law Journal (ANULJ) publishes academic contributions which are relevant to Africa from an international and comparative law perspective. Special focus is given to Africans and scholars of Africa, who are interested in African research and development. The journal is the product of the Africa Nazarene University Law School, based in Nairobi, Kenya in partnership with Juta Law. With an esteemed editorial board and international advisory board, ANULJ has the backing of the foremost African and international scholars in the field.
Editor in Chief
Dr Duncan Ojwang Editor-in-Chief
Dr Duncan Ojwang is the Dean of the Africa Nazarene University School of Law. He has extensive experience engaging both academic and the policy community in Africa on issues of International law and Human Rights. He has served as a delegate of the Republic of Kenya to the meeting of ICC State parties in 2015. From 2010-2012, he also served as the United Nations Special Rapporteur on the rights of indigenous people’s legal defense team. Dr Ojwang has authored many publications in leading peer reviewed journals and a book, in the fields of International law, human rights law, customary law reform, international environmental law and access to justice.
Dr Ojwang previously worked as a public defender in the USA, a member of the Illinois Bar and as a licensed attorney in Illinois. Prior to his current post of Dean, he has been an academic member of the Faculty of Law at Nairobi University.
Ms Julianna Njiriri - Chair, Africa Nazarene University School of Law
LLM: University of Surrey, Guilford; LLB: Moi University, Kenya. Advocate of the High Court of Kenya and member of the Law Society of Kenya and the East Africa Law Society. Practices Commercial Law and has diverse legal expertise and specialist knowledge in International Organisations, International Trade, Armed Conflict and Human Rights Law. Currently the Chair of School of Law, Africa Nazarene University. Also, a Board Member of the East Africa Collaboration for Economic Cultural and Social Rights and a Partner at Kwame and Associates Law Firm. Has published several research journal articles on various pertinent issues in the legal field and is the editor and patron of the Africa Nazarene University Law Journal. She is also Patron and Member of the School of Law’s Centre for International and Comparative Law, Africa Nazarene University.
Mr. Rogers Odhiambo
Lecturer, Africa Nazarene University School of Law
Dr. Lois Musikali
Senior Lecturer in Law, Africa Nazarene University School of Law
Mr. Colbert Ojiambo
Lecturer, Africa Nazarene University School of Law
Dr Charles A. Khamala - Senior Lecturer, Africa Nazarene University School of Law
Earned his Ph.D. Droit Privé (Sciences Criminelles) from L’Université de Pau et des Pays de l’Adour (2015), LL.M. (University of London, 2006) and LL.B. (Nairobi, 1990). He is a practicing advocate of the High Court of Kenya of over 20 years, enrolled on the African Court of Justice and Human Rights, East African Law Society, International Commission of Jurists (Kenya), International Law Association, World Society of Victimology and the ICC Bar Association. He was Andrew W. Mellon Post-Doctoral Fellow, Rhodes University in 2016.
Dr Tom Kabau
Director of CARLP, and a Senior Lecturer and the Chair of the Law, Science and Technology Department at the School of Law, Jomo Kenyatta University of Agriculture and Technology.
Mr. James Mamboleo
Advocate of the High Court, Lecturer at Law and Legal Consultant Nyamweya Mamboleo Advocates and the International Economic Law Center
Dr. Jack Mwimali
Senior Lecturer/Dean , Jomo Kenyatta University of Agriculture and Technology School of Law
Mr. Ambani Osogo
Senior Lecturer/Dean , Jomo Kenyatta University of Agriculture and Technology School of Law
Ms. Evelyne Asaala
Lecturer, University of Nairobi School of Law
Dr. Anthony Munene
Assistant Director, Advocates Training Programme and Paralegal Studies, Kenya School of Law
Ms. Angela Nkatha Mutema
Lecturer in Law, Africa Nazarene University School of Law
Mr. Paul Ogendi
Technical Assistant/Researcher, African Commission on Human and Peoples’ Rights
International Editorial Advisory Board
The International Editorial Advisory Board consists of individuals selected for their expertise in matters relating to international and comparative law. Their primary role is to assist in the process of ensuring that ANULJ consistently publishes materials of a high scholarly standard. Any member of the Advisory Board may contact the editors at any time to discuss ideas or concerns relating to the Journal.
1. Prof. Ademola Abass
Head of Program and Research Fellow Regional Peace and Security, United Nations University Institute for Comparative Regional Integration Studies
2. Prof. Christopher Mbazira
Associate Professor of Law, Makerere University
3. Prof. Edwin Abuya
Associate Professor of Law, University of Nairobi
4. Prof. John Dugard
Member, International Law Commission; Extraordinary Professor, Centre for Human Rights, University of Pretoria
5. Prof. Makau Mutua
Dean, SUNY Distinguished Professor, SUNY Buffalo Law School
6. Prof. Nsongorua Udombana
Professor of International Law; Dean, Faculty of Law University of Uyo, Nigeria
7. Prof. Rachael Murray
Director, Human Rights Implementation Centre University of Bristol Law School
8. Prof. Tom Ojienda
Associate Professor of Law, Moi University
9. Prof. Eric Myjer
Professor of Public International Law at Utrecht University
10. Prof. PLO Lumumba
Director/Chief Executive and Secretary, Kenya School of Law Board
Political Economy of Exploitation of Mineral Resources in Post-Colonial Tanzania Mainland (1961–2009): Pertinent Lessons
This paper addresses the challenges that the mining sector in Tanzania Mainland has faced in the post-colonial period. Generally, the sector has been confronted by dissatisfaction and unhappiness amongst the people of Tanzania regarding the way in which the country’s mineral resources have been and continue to be exploited. The primary contention is that benefits from the mining sector are not visible and that the sector appears to be more beneficial for foreign investors than for local ones. Bearing this in mind and using a political economy approach, this article raises important questions regarding where the management of the mineral sector went wrong in the post-colonial period, ascertaining pertinent lessons that Tanzania has learnt. The findings and conclusion of this article assert that the country erred when it abandoned certain fundamental principles of state policy which govern the exploitation of natural resources. This indicates that in the post-colonial period, Tanzania lacked a clear vision regarding its mineral resources. The country also embraced incorrect insights regarding investment decisions which affected the nature and availability of capital for exploitation of mineral resources.
* Dr Adelardus Kilangi, Certificate of Philosophy (St Mary’s Senior Seminary, Kibosho, Tanzania); LLB, LLM and PhD in Law (University of Dar es Salaam, Tanzania); he is a law lecturer at St Augustine University of Tanzania; former member and President of the African Union Commission on International Law; Senior Legal Advisor for the African Minerals Development Centre; Director for the Centre for Mineral and Petroleum Law of St Augustine University of Tanzania.
The Legality of Taxing ‘Part- Time’ Employees in Kenya at a Flat Rate of 30%
Wilfred N Konosi,* Fred M Ratemo** and Fred O Nyagaka***
Taxes are an important aspect of the national economy and a vital source of public finance. The Kenyan Government has, through legislation, imposed various taxes and levies on its citizens and residents, including income tax, value-added tax, customs duty and excise duty. The Kenya Revenue Authority administers the various tax laws in Kenya and collects taxes on behalf of the national government. Regarding the taxation of employment income, Kenya’s Income Tax Act, Chapter 470 of the Laws of Kenya, does not distinguish between employees who work full-time and those who work part-time. In most cases employers categorise employees as being part-time for their own convenience. This categorisation has tax implications for the affected employees. The tax implication, as a result of the differentiation between full-time and part-time employees, is that part-time employees pay more tax on their earnings when compared to their full-time counterparts. The usual practice for the assessment and collection of income tax in Kenya is that employers withhold income tax on the earnings of part-time employees at a flat rate of 30% and remit the same to the Kenya Revenue Authority. This mode of taxation is based on a directive by the Kenya Revenue Authority which has no constitutional or statutory basis. This is not only illegal, but also discriminatory as it denies part-time employees the right to equal remuneration for equal work.
* Wilfred N Konosi, Diploma in Law (Kenya School of Law); LLB (University of Nairobi, Kenya); LLM (University of Zimbabwe); Certified Professional Mediator (Mediation Training Institute); Advocate of the High Court (Kenya); Dean of the School of Law (Kisii University, Kenya). ** Fred M Ratemo, Diploma in Law (Institute of Legal Practice and Development, Rwanda); LLB (Uganda Pentecostal University); LLM (Uganda Pentecostal University). *** Fred O Nyagaka, Diploma in Law (Kenya School of Law); LLB (University of Nairobi, Kenya); LLM (Ohio Northern University, United States of America); LLD candidate (Humboldt University, Berlin, Germany); Advocate of the High Court (Kenya). The authors wish to thank Dr Luis G Franceschi, Dean of Strathmore Law School and Ms Daisy Ogembo of Strathmore Law School in Kenya for their insightful comments on the initial draft of this work.
Justifying Maasai Land Claims in Kenya through Statutory Law, Common Law and International Law
Dennis M Ndambo*
This paper addresses one of the most widely acknowledged, but highly contested historical injustices, namely the dispossession of the Maasai community of their land. The Maasai community lost a significant amount of land to European settlers during the colonial period and, after independence, the African government perpetuated the capitalist economy that was antagonistic to the Maasai way of life. As a result, the Maasai presently perceive themselves to be a marginalised community. 1 This article uses the Maasai community as a case study and provides justification for the community’s claim for restitution of their ancestral land. It is suggested that restitution of Maasai land can be accomplished in various ways. First, it is possible to justify restitution of Maasai ancestral land by enacting legislation for this purpose. A comparison is made between Kenyan legislation and legislation passed, for the same purpose, in other jurisdictions of the world. Secondly, the Maasai community could claim restitution of their land through the doctrine of aboriginal title.
* Dennis M Ndambo, LLB (University of Nairobi, Kenya); LLM (University of Warwick, United Kingdom); Post-graduate Diploma in Law (Kenya School of Law); LLD candidate at the Faculty of Law (University of Pretoria, South Africa); law lecturer at the School of Law at the Jomo Kenyatta University of Agriculture and Technology in Kenya; main research and teaching interests include international law, particularly public international law, international human rights law, international humanitarian law, international criminal law and international environmental law. 1 David J Campbell ‘Land as Ours, Land as Mine: Economic, Political & Ecological Marginalization in Kajiado District’ in Thomas Spear & Richard D Waller (eds) Being Maasai: Ethnicity & Identity in East Africa (James Currey Publishers 1993) 258–272; Lotte Hughes ‘Malice in Maasailand: The Historical Roots of Current Political Struggles’ (2005) 104(415) African Affairs 207–224; Dorothy L Hodgson Being Maasai, Becoming Indigenous: Postcolonial Politics in a Neoliberal World (Indiana University Press 2011).
Legal Frameworks for Water Pollution in Nigeria: An Evaluation
Abdulkadir Bolaji Abdulkadir* and Onikosi Ahmeed Adedeji**
There are numerous causes of water pollution, but two general categories of pollutants exist, namely direct and indirect sources. The former category includes effluents that are released into water supplies as a result of sewage outputs from factories, refineries and waste treatment plants. The latter category comprises contaminants that seep into the water supply from soils and groundwater systems that contain fertilisers, pesticides and industrial wastes. Over time, there has been increasing global awareness of, and concern about, water pollution and innovative approaches have been developed towards sustainable solutions to prevent the exploitation of water resources. There is general agreement that a properly developed policy framework is a fundamental element of sound water resource management. The control and management of water pollution is usually addressed through the establishment of effective environmental legislation. Developing countries face the escalating challenge of preventing disease, environmental degradation and economic stagnation as a result of precious water resources becoming increasingly polluted and urgent and correctly directed action is required. This paper conducts an investigation of the legal frameworks for preventing water pollution in Nigeria, in particular, and assesses the effectiveness, or ineffectiveness, of these frameworks, making suggestions to improve the quality of Nigeria’s water system.
* Abdulkadir Bolaji Abdulkadir, BL (Nigerian Law School); LLB (University of Ilorin, Nigerian); LLM (University of Ilorin, Nigeria); PhD (International Islamic University, Malaysia); Senior Lecturer at the Department of Public Law of the Faculty of Law at the University of Ilorin, Nigeria. (E-mail: barristeraba01@ yahoo.com). ** Onikosi Ahmeed Adedeji, BL (Nigerian Law School); LLB (University of Ilorin, Nigeria); Post-graduate Diploma in Education (National Teachers’ Institute of Nigeria); LLM (University of Ilorin, Nigeria); Acting Head of Department and Lecturer at the Department of Islamic Law, College of Law, Al-Hikmah University, Ilorin, Nigeria. (E-mail: firstname.lastname@example.org or aaonikosi@ alhikmah.edu.ung).
Investing and Trading in Copyright in the East African Common Market (Kenya and Tanzania): Calling for Harmonised Legal Regime
Telesphory DB Magogo*
This article discusses infringement and enforcement of copyright as provided for in the Kenyan Copyright Act (hereafter the Kenyan Act) 1 and the Tanzanian Copyright and Neighbouring Rights Act (hereafter the Tanzanian Act) 2 and their adequacies in the protection of copyright in the East African Community (EAC) 3 Common Market. These two Acts are among the statutes that provide for the domestic regulation of copyright. Apart from similarities between the two Acts, the author has identified significant differences, uncertainties and deficiencies in their respective provisions for infringing acts and enforcement mechanisms, including remedial measures. These differences and deficiencies endanger investing and trading in copyright in the EAC Common Market. The author has suggested the harmonisation of copyright rules as a remedial measure to resolve identified problems and to ensure competitive trade and investment in copyrighted works. It is suggested that harmonisation takes the form of a directive. This article contains an evolution of ideas as contained in the author’s mini-thesis, a work submitted for the award of the Degree of Masters of Laws (LLM) at the University of the Western Cape in South Africa.
* Telesphory DB Magogo, LLB (St Augustine University of Tanzania); LLM in International Trade, Investment and Business Law (University of the Western Cape, South Africa); he is currently serving as Dean of the School of Law at St Augustine University of Tanzania. 1 Copyright Act of 2001 Cap 130 [RE 2009] of the Laws of Kenya. 2 Copyright and Neighbouring Rights Act of 1999 Cap 218 [RE 2002] of the Laws of Tanzania. 3 Republic of Burundi, Republic of Kenya, Republic of Rwanda, United Republic of Tanzania and Republic of Uganda.
Advancing the Right of Women to Education in Nigeria: Human Rights Instruments in Perspective
Nimah Modupe Abdulraheem*
The right to education is a vital aspect of the socio-economic rights of all citizens, both men and women. Despite this important international human rights provision, women in Nigeria continue to experience difficulty in gaining equal access to education, irrespective of the various international, regional and national conventions which guarantee this right. The problem of unequal access to education reduces the capacity of women to participate freely in the socio-cultural, economic and political activities of their country. It impedes the effective reconstruction of society by limiting opportunities for the empowerment of women and their economic survival. Nigeria has signed and ratified many international conventions, including the United Nations International Covenant on Economic, Social and Cultural Rights of 1966, the latter being the primary international undertaking for dealing with the right of women to education. More importantly, the right of women to education has been enshrined in several regional and national conventions, including the African Charter on Human and Peoples’ Rights which was domesticated into law in Nigeria. Despite these documentary undertakings, significant corresponding improvement in access to education for women in Nigeria has not occurred. This article examines the legal provisions that guarantee the right of women to education and seeks to determine the extent to which the nation has complied with these agreements. In addition, it addresses various challenges that inhibit the access of women to education and positive suggestions to bridge, or to totally eradicate, the vast educational gap that exists between men and women in Nigeria, are proffered.
* Nimah Modupe Abdulraheem, BL (Nigerian Law School); LLB (Bayero University, Nigeria); LLM (Obafemi Awolowu University, Nigeria), PhD (University of Ilorin, Nigeria); she is a Reader in the Department of Jurisprudence and International Law of the Faculty of Law of the University of Ilorin (Nigeria). (E-mail: email@example.com or firstname.lastname@example.org).
Constructing Cultural Pluralism as a Universal Medium: Islam and the Influence of Western Civilisation in Nigeria
Muhtar Etudaiye* and Mohammed Enesi Etudaiye**
As a result of better education and access to new information and communications technology, there is an increasing awareness amongst Muslims of their obligations as Muslims and the need to model themselves along the lines of and implement the injunctions in the Qur’an and the practices of the Holy Prophet Muhammad (SAW). 1,2 This evolution has resulted in a new outlook that appears to have confounded the West as a result of its sharp contrast with western culture. The situation has been exacerbated by the violence of groups, nationally and internationally, proclaiming to embark on violent actions in the name of Islam. The world, it appears, stands at a crossroads with regard to Islam. The trajectory of this historic crossroads is the cultural interface between Islam and the West. While the former struggles to insulate its pristine values and identity from secular interference, the latter relentlessly expands the frontiers of its influence through major advantages in mass media capability, economic fortitude, political diplomacy and information and communications technology.
* Muhtar Etudaiye, LLB (Ahmadu Bello University, Nigeria); LLM (Obafemi Awolowo University, Nigeria); PhD (University of Ilorin, Nigeria); Associate Professor, Department of Jurisprudence and International Law, University of Ilorin, Ilorin, Nigeria. (E-mail: email@example.com) ** Mohammed Enesi Etudaiye, LLB (Ahmadu Bello University, Nigeria); LLM (Obafemi Awolowo University, Nigeria); PhD (University of Abuja, Nigeria); Senior Lecturer, Department of Public and International Law, University of Abuja, Abuja, Nigeria; currently on sabbatical as Senior Research Fellow, National Institute for Legislative Studies, Abuja, Nigeria. (E-mail: mohammedetudaiye@ yahoo.com). 1 The Arabic phrase sallallahu alahyi was-salam (SAW) translates to ‘peace be upon Him’ and is a requirement of the Muslim faith that is attached to the mention of the name of the prophet Muhammad (SAW). This practice is followed throughout this article. 2 The prophet Muhammad (SAW) is regarded by Muslims as the last messenger sent by Allah to guide humanity.