India’s Daughter

  

For Jyoti Singh…Lest we forget...

One of the unsurprising mandatory courses offered at hopefully all law schools is Professional Ethics. Members of the public would be greatly pleased that in fact lawyers and advocates in training are indeed taught how to be courteous, how to keep clients reasonably informed as well as how to charge reasonable fees, manage separate client accounts as well as how to maintain other positive duties to clients such as good faith, confidentiality and competence among others.

Professional ethics also requires that an advocate cannot refuse a brief, provided that the client is willing to pay fees, and that the advocate is not otherwise engaged. There are obviously some exceptions to this general rule but it is indeed a bit  troubling to think that I may be ethically and professionally required to represent suspected terrorists, rapists or mass murderers as a right minded lawyer and that my personal beliefs, feelings or dispositions would be largely irrelevant!

This dread was further heightened last Friday during a professional ethics class when the course instructor required us to watch ‘India’s Daughter’, a 52 Minute BBC Production on the infamous Delhi gang rape that occurred in 2012. For the purpose of our class, it was material to listen, observe, learn and critic both the prosecution and defence lawyers stances. So gruesome were the facts and circumstances of this case that the Indian Bar Association had previously passed a resolution that no one should defend the accused rapists and minor in the matter contrary to the cab-rank rule that most commonwealth jurisdictions currently uphold.

Despite the legalese and rationale of watching this documentary in this particular class setting, I couldn’t help but notice how a given socialization process impacts how a particular group of  people reason and analyze situations both directly and indirectly. For instance, some of the comments given by both counsels in relation to the matter seemed to suggest that the victim was partly or entirely to blame for the heinous crime that ultimately resulted in her death!

Having never been to India before, it was glaringly evident from the contributors of the documentary that India has a very rich culture and history to which part, most of its inhabitants are proud of, but it is also chiefly repressive and discriminative towards girls and women who are considered second-class citizen. Most disturbing were averments made by the convicts; that a decent Indian girl should not be out alone without the company of a male relative or out alone at 8:00 p.m. entirely or even worse that she should not fight when being violated in the manner that she was!

 It was bitter sweet to see the huge outcry and multiple public protests that resulted from this incident. Indians of all ages, creed and gender took to the street demanding for women’s rights and the need to be afforded better protection. Most importantly they were also fighting for that Jyoti Singh gets the justice she deserves. It was indeed humbling and unifying to watch and it reaffirms the notion that history and hopefully socialization processes can be changed during such trying times.

Even if the law affirms that every person however wicked, depraved, vile, degenerate, perverted, loathsome, vicious or repulsive has a right to be defended in a court of law, every victim including Indian young lasses also have rights, duties and freedoms that must be respected and upheld in life and in death!

Judgment on Section 24 of the HIV & AIDS Prevention and Control Act-Kenya

Written By Kate Kiama and Initially Published on  http://www.aidslawproject.org/

The AIDS Law Project instituted a suit, in Petition No. 97 of 2010 against the Hon. Attorney General and the Director of Public Prosecutions in their capacities as the legal representatives of the Government. After listening to the parties and reading the pleadings, a three judge bench of the High Court in Nairobi delivered its judgment on the 18^th March 2015 with regard to the constitutionality of section 24 of HIV and AIDS Prevention and Control Act and found in favour of AIDS Law Project.

Honorable Justice Isaac Lenaola, Mumbi Ngugi and George V Odunga held that Section 24 of the HIV and AIDS Prevention and Control Act is vague, overbroad and lacks legal certainty particularly with respect to the term ‘sexual contact’. The main contention by the Petitioners was that whereas the term ‘sexual contact’ is widely used in the said section and Act, Parliament did not make any attempt to define it and the same was left to the subjective views of either, the prosecutor, policeman or the court to determine its intention. It was further contended that this term was vague because one might suppose that it includes kissing, holding hands, exploratory sexual contact or penetrative intercourse.

The High Court held that the section was so broadly drafted that its interpretation could also apply to women who expose or transmit HIV to a child during pregnancy, delivery or breastfeeding. The court reaffirmed two principles of legality: that no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly ascertainably punishable when the act was done as espoused by article 50 (2) of the Constitution.

The court further held that Section 24 of the HIV and AIDS Prevention and Control Act contravened article 31 of the Constitution of Kenya in regard to the right to privacy of a person living with HIV who has disclosed their status to their ‘sexual contacts’; yet there was no corresponding obligation is place on recipients of such sensitive medical information to keep it confidential. Such unwarranted disclosure of information was therefore against the right to privacy as guaranteed by the Constitution and also confounds the situation by prejudicing people living with HIV and AIDS by exposing them to stigma, violence and discrimination.

The court recommended the State Law Office to review the HIV and AIDS Prevention and Control Act 2006  with a view of avoiding future litigation surrounding the said legislation.

Find a full copy of the judgment here. http://kenyalaw.org/caselaw/cases/view/107033/

Is the UK Parliament Sovereign in light of its Membership to the EU?

This Paper was originally written By  Catherine Kiama in 2013 for  Credits in Law Skills Portfolio Unit.

The European Union^[1] was formed from the need to have harmony and to have a prosperous Europe after the two World Wars ravaged Europe. The desire to ensure that such devastating events should never recur manifested in the creation of the European Convention on Human Rights and other key institutions. The integration of the coal and steel industries gave rise to the European Economic Community^[2].This was a measure taken to enable communal control of commodities that could be used to fuel war. The European Union has made weighty changes in the legal, economic, political and social arena of its member states.

The United Kingdom^[3] was admitted to the EEC^[4]in January 1973.This membership nonetheless beneficial to her in terms of trading and accessing the European markets brought with it considerable challenges concerning the sovereignty of the UK parliament and the role of UK judges in interpreting domestic law especially when issues of EEC^[5] laws arose. The spirit of the EC is that all member states should surrender a degree of their sovereignty in order to give the new supra-national institutions its own authority.EC law was ratified in the UK by the European Communities Act 1972^[6].Section 2 of the Act specifies that rights and duties derived from EC provisions that have direct effect^[7] are to be given full legal effect within the UK.This position was reaffirmed in the case of Van Duyn v Home Office (1974).

Being members, is the new legal order created therefore imposed on member states? And is limiting member states sovereignty an attack on democracy or is it a practical limitation to ensure conformity within all member states? This paper will demystify the legal effects of the UK membership to the EU and specifically what this means for her sovereignty.

Under any constitution whether written or unwritten, there must be a source of ultimate authority. In written constitutions such as in the USA, the highest source of power is in the constitution. Under the unwritten British constitution, the highest source of authority streams from the United Kingdom parliament itself. The classical definition of sovereignty was offered by A V Dicey in 1885.Parliamentary sovereignty means that the UK parliament has the right to make or unmake any laws and that no person or body is recognized in English law as having a right to override or set aside parliamentary legislations. The significance of this sovereignty means that UK legislation is not superseded by principles of International law or of Natural law. Further, Acts of Parliaments never lapse and all subordinate legislation must be able to point-to where they derive their authority from; usually through a Parent Act. Parliamentary sovereignty rests upon the assumption that the judiciary is loyal to the will of the legislature and will apply Acts of Parliament effectively in courts of law.

The European Court of Justice has since the 1960s asserted that European Community law has supremacy over the laws of any member state. This opinion can be derivative from early cases such as VanGend en Loos v Nederlandse Tariefcommissie (1963^[8]), Costa v ENEL (1964^[9]), Simmenthal (1977^[10]) and Internationale Handelsgesellschaft mbH v EVST (1972^[11]).The Court of Justice has adopted the view that by becoming signatories to the EU, member states have indeed limited their own legislative competence and abilities in regard to community matters^[12]. The supreme power to legislate on such matters is in the institutions of the Union alone. The laws of the Union, Treaties, laws enacted by the Council of Ministers and those of the European Parliament together with decisions reached by the European Court are binding in totality on all member states^[13]. In the UK, all Union law derives its authority from the ECA 1972 an Act of the UK parliament^[14]. This Act[15] like any other has no special legal status within the constitution and is not immune from repeal or amendments.^[16] British judges have resulted to settle disputes over the evident conflict of EU and UK law by assuming that the UK parliament does not wish to contradict EU law.

From the European Courts perspective, it is clear that Community law should always prevail over domestic laws in the event of conflict. Domestic legislatures should therefore not enact contrary legislation to that of the Community law. The supremacy of the Community law must be respected according to the ECJ’s views as member states voluntarily “surrendered” their sovereign power^[17]. Article 10 Treaty of Rome imposes a duty on all members to comply with Community law and not hinder its applications. Further; Article 249 EC Treaty provides that regulations^[18]made under the Treaty shall be binding in entirety and directly applicable on all member states.

Blackburn v Attorney General (1971) and R v Home Secretary ex parte McWhirter (1969) aimed to challenge the idea that membership to the community would mean actual loss of parliamentary sovereignty. This in Blackburn’s view was unlawful and contrary to the very idea that no parliament could bind a future parliament. In R v Home Secretary, it was argued that joining the EC[19]  was contrary to the Bill of Rights 1969 which clearly stated that all government powers are vested in the Crown and parliament could therefore not purport to transfer those rights by means of a Treaty. In both cases, the arguments were quickly rejected.

Unquestionably, the most famous case that reveals the relationship between European law and domestic law is that of R v Secretary of State for Transport ex parte Factortame (1991). The ECJ in this case authorized the British Courts to set aside the conflicting Merchant Shipping Act of 1988, a valid law passed by the Sovereign UK parliament to give effect to EU law. The ECJ reverted to its previous decision in Simmenthal (1979) reverberating that directly applicable rules were to be entirely and homogeneously applied in all member states in accordance with the principle of superiority of European law over domestic law. In R v Secretary of State for Employment ex parte Equal Opportunities Commission (1995)^[20], the House of Lords blatantly granted a declaration to the effect that the domestic law in regard to the employment provisions were undeniably incompatible with the European law. The House of Lords decision did not go as far as to invalidate domestic law but rather limited itself to the compatibility issue. It seems that the power to rule on the invalidity of domestic laws is a matter best left to the ECJ.^[21]Various case law suggests that a UK court has the authority to grant an injunction against the crown by suspending a valid Act of Parliament. The House of Lords assertion that such incompatible national laws should be set aside if they appear to interfere with the protection of community rights clearly questions the supremacy of the UK parliament.

Article 234 EC Treaty^[22] set out the provisions for a court or tribunal of last resort to refer a question of EU law to the ECJ which requires interpretation to enhance uniformity within member states. Lord Denning in Bulmer v Bollinger (1974) laid down the guidelines[23] for English courts to apply when reference was anticipated. An additional hindrance to referrals arises from the doctrine of acte clair^[24].The Bulmer and acte clair principles can lead to serious variation in the interpretation of EU law within domestic systems. The ECJ considered the circumstances in which courts should refer a matter of law and the principle of acte clair in the CILIFIT[25] case of 1983. The purpose of Article 234 EC Treaty is to ensure that there is proper application and unvarying interpretation of EU law in all member states, hence a prevention of discrepancies occurring within member states.

Despite the fact that the ECJ is not a supreme federal court, once it makes a ruling on a matter that has been referred to it, the domestic court seeking the referral is expected to adopt the ECJ’s interpretation. It is important to note that governments of member states are liable in damages for losses their citizens may incur as a result of the state’s breach of EC law.

It is likely to contend that the UK parliament entrenched the provisions of Section 2(4) ECA 1972.In effect it bound itself and all other future parliaments contrary to the Diceyan theory. This means that the ECA 1972 has some “special constitution” status that result in the actual loss of parliamentary sovereignty as was suggested in the early cases of Blackburn and R v Home Secretary respectively.

Alternatively, it could also be argued that the Diceyan theory still holds its ground despite all arguments that may seem to critics it.It should be remembered that the United Kingdom voluntarily ceded into entering the European Community.EC law enters into UK domestic courts through the ECA 1972.In theory, the Act like any other can be repealed and amended. This is consistent with Dicey’s theory that parliament can make or unmake any law.Macarthys v Smith (1979) and Garland v British Rail Engineering Ltd (1983) illustrate that the Court of Appeal and the House of Lords respectively are of the view that in the event that parliament expressly legislates contrary to provision governed by Community law, UK judges will give effect to parliament’s intentions notwithstanding the provisions of Section 2(4) ECA 1972. Judges would simply be giving effect to the most recent expression of parliament’s wishes through the doctrine of implead repeal.

 The European Union imposes large amounts of legislation and regulation to its member states annually. This questions the sovereignty of member states in particular that of the UK.However the uniform legislation enacted by the European bodies is in line with the community objectives and to ensure conformity of laws within all member states. The House of Lords and the House of Commons have committees that scrutinize EU legislation before it is effectively adopted as domestic law. These committees review each legislation and when need arises debate the same in the UK Parliament. Through this process, the UK Parliament has reaffirmed its sovereignty despite membership to the Community and has clearly demonstrated that its parliament is sovereign over that of Strasbourg.

The actual fact that the UK is a dualist state as per its constitutionality may water down the theory that EU law is more supreme that its own national laws. The ECA 1972 like any other Act can be amended as was clearly demonstrated following the adoption of the SEA 1986. This proves that any parliament can alter or repeal the Act[26] thereby affirming the UK’s ultimate sovereignty. In conclusion, I am of the assertion that Westminster still retains its sovereignty despite the new legal order created by the EU.However; this sovereignty is more legal than political. Parliament at Westminster can legally dis-apply Community law[27] and assert its own legislation. Such an option however would not be very reasonable given the current politics that dominate Europe now.

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[1] Came into being with the Treaty on European Union 1992.

[2] Based on the Treaty of Rome 1957.

[3]UK

[4]Treaty of Rome 1957 now referred to in its amended form as the EC Treaty.

[5]Now referred to as European Union law and Community law herein.

[6] UK is a dualist state. Act created in consistency with sovereignty of parliament.

[7] After attaining full membership to the EU, most Treaty provisions became part of domestic law. This means that provisions of direct applicability can be invoked before member states domestic courts as part of domestic law without further enactment by their parliament. Ensures harmonious application of Community law throughout the legal system of all member states.

[8]Court enunciated the principle that by signing the EU Treaties, member states had created a new legal order in which individual states had willing allowed to limit their own sovereign rights.

[9] Court held that by creating a community of unlimited duration, having its own institutions and personality, the member states have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves.

[10]The ECJ found that even a fundamental provision in the written constitution of member states could not be invoked to challenge the supremacy of EC law.

[11] Ibid

[12] EC’s objectives include the following:

v  To create and maintain the internal market.

v  To create and maintain a common commercial policy with non-EC countries.

v  To preserve competition.

v  To create and maintain an economic and monetary union.

v  To work in parallel with national governments in fields such as social policy, culture, education, vocational training, public health, consumer protection, environment etc.

[13] A distinction needs to be made between the different forms of international Co-operation.Inter-governmentalOrganisations are characterised by the agreements between states to establish institutions to secure some common aim and objective. Such organisations generally lack to ability to make decisions binding on member states without their express consent. By contrastsupra-national organisations are created where member states establish institutions which have a degree of autonomy and can therefore make legally binding decisions affecting member states without their express consent: provided they are still within the authority granted to them by the treaty creating it.

[14] Lord Denning made it clear in the case of McWhirter v Attorney-General (1972) that without the ECA 1972, EC Treaty and Community legislation would have been binding on the UK in the international arena but would have no effect internally. Section 2 and 3 of the ECA 1972 help ensure that the Treaty provisions have been domesticated in the UK local Courts to ensure that the Treaty provisions can now be binding on the UK.

[15] ECA 1972

[16]Ibid. Not entrenched.

[17] There is no express Treaty reference to the controversial issue on supremacy. The Court of Justice views that supremacy is actually implied in the Treaty. Article 4 TEU (ex Article 10 EC) requires all member states to ensure fulfillment of Treaty obligations and to abstain from any measure that would jeopardize the Treaty obligations.

[18] A form of secondary legislation.

[19] Now the EU.

[20]Referred to as the EOC case.

[21]Henn and Darby v Director of Public Prosecutions (1981);Foto-Frost v Hauptzollamt Lubeck Ost (1987)

[22] Previously Article 177

[23] Firstly, the decision must be essential to enable the courts to give an effective judgment. Secondly, the interpretation of the question of law must be crucial to the case and not merely a peripheral issue. And finally, even if reference is needed, it is important to appreciate the delay involved, the expense incurred and the difficulty of the point of law and of course the burden placed on the ECJ.

[24] Concept that if a matter is so obvious to domestic courts, no reference is needed to be made to the ECJ.

[25] The Court concluded that there is no duty to refer where the question of law was irrelevant and could therefore have no effect on the outcome of the case. Further, no duty arises where the question is substantially similar to one previously answered by the ECJ as in Da Costa en Schaake NV (1963).Finally the court endorses the acte clair principle and insists that there is no duty to refer where no real doubt as to the meaning of the law exists.

[26] ECA 1972

[27] Parliament can also limit the extent of general principles of EU law. This is evident in Chapter 5 of the Protocol on the application on the Charter of Fundamental Rights.

Oak Fellowship at Colby College

APPLY NOW — FALL 2014 OAK FELLOWSHIP – FOCUS ON GENDER AND HUMAN RIGHTS

The Oak Institute for the Study of International Human Rights is conducting its search for the Fall 2014 Oak Human Rights Fellow.

The Oak Institute is looking for activists focused on the theme of gender and human rights, which may have to do with women but may also involve men (and masculinity) and sexual minorities. We invite nominations particularly from those working on sexual and reproductive rights, gender empowerment and education, human and sexual trafficking, activism against gender-based violence, gender- and sexual-based asylum, or gender and environmental rights.

For more information on the 2014 Oak Fellowship please view our Brochure.

About the Oak Fellowship

Each year, the Oak Institute brings an Oak Human Rights Fellow to teach and conduct research while residing at the College. The Institute organizes lectures and other events centered around the fellow’s area of expertise. The purpose of the fellowship is to offer an opportunity for prominent practitioners in international human rights to take a sabbatical leave from their work and spend as long as a semester as a scholar-in-residence at the College. This provides the Fellow time for reflection, research, and writing.

While all human rights practitioners are eligible, we especially encourage applications from those who are currently or were recently involved in “on-the-ground” work at some level of personal risk. The Oak Fellow’s responsibilities include regular meetings with students either through formal classes or informal discussion groups and assistance in shaping a lecture series or symposium associated with the particular aspect of human rights of interest to the fellow. The fellow also is expected to participate in the intellectual life of the campus and enable our students to work or study with a professional in the human rights field.

The Fellow will receive a stipend and College fringe benefits, plus round-trip transportation from the fellow’s home site, private housing near campus, use of a car, and meals on campus. The Fellow will also receive research support, including office space, secretarial support, computer and library facilities, and a student assistant. The Fellowship is awarded for the fall semester (September through December) each year. Following the period of the award, the fellow is expected to return to her or his human rights work.

If you wish to be contacted each year when we begin our annual search process, please join our electronic mailing list at: www.colby.edu/academics_cs/goldfarb/oak/mail.cfm or email the Oak Institute at: oakhr@colby.edu

 

Source of Labour Law in Kenya.

By Kate Kiama

Granted, labour law in Kenya does not take the form of a comprehensive labour code; rather it is in fact derived from a multiplicity of sources, both legal and extra-legal which in some instances interact in complex ways. The below discussion will identify and discuss the formal and voluntary sources of labour law in Kenya.

                     Labour law in Kenya is based on a number of legal rules. This will be discussed consecutively below.

        i.            Constitution. The Constitution is the grund norm and as such is the most supreme law of the land. This is further buttressed by Article 2 (1) of the same. The Constitution also makes specific provisions on labour relations in Article 41 and 43 (1). The upshot of these provisos being that everyone has a right to fair labour practices and that the state will ensure that a person’s economic and social rights will be realized progressively. Article 25 as read with Articles 28 and 30 (1) ; (2) affirm that a person has the right to human  dignity and will not be forced into labour, slavery or servitude. This right is enshrined as a non-derogatable right. Further Article 27 (3) of the Constitution mandates employers to treat their employees in an equal and non-discriminatory manner. Constitutional provisions are also made in relation to forming associations, the right to assembly, demonstrating, picketing and petitions in Articles 36 and 37 respectively. Article 232 as read with Chapter 6 on leadership and integrity provides thresholds that public servants must attain before holding public office. The Constitution also establishes the Industrial Court pursuant to Article 162 (2) and various commission that directly or indirectly affect labour law issues in Kenya.

     ii.            Acts of Kenyan Parliament. Core labour legislation on social security matters include the following;

·        National Social Security Fund Act, Chapter 258

·        National Hospital Insurance Fund Act, Chapter 255

·        Industrial Training Act, Chapter 237 (Revised 2011)

·        Retirement Benefits Act 1997 amended Retirement Benefits (Amendment) Act 1998

Major reforms were embarked on in 2007 with the enactment of five other legislations on labour law to supplement the sector. These statutes include the following:

·        Employment Act,2007 (replaced Employment Act, Cap 226 and Regulation of Wages and Conditions of Employment Act, Chapter 229)

·        Labour Institutions Act,2007 (replaced the Trade Unions Act, Chapter 233 and the Trade Disputes Act, Chapter 234)

·        Labour Relations Act,2007

·        Work Injury Benefits Act,2007 (replaced the Workmen’s Compensation Act, Chapter 236)

·        Occupational Safety and Health Act,2007 (replaced the Factories and Other Places of Work Act, Chapter 514)

   iii.            International Law. Under the previous constitutional regime, Kenya adhered to a dualist legal system and as such international treaties and obligations did not take immediate effect and required implementation through domestic legislation. The result was that as such the full implementation of a number of treaties providing protection in relation to labour law matters could only be realized once national legislation was passed. Pursuant to Articles 2 (5) and 2 (6) of the Constitution , it  appears that there has been a shift toward a partly monist system and as a consequence therefore international law does not need to be translated into national law and takes immediate effect upon ratification and signing of the same. Examples of ILO conventions  that are now part of the labour laws of Kenya include;

·        ILO CON. 29 – Forced labour ratified on 13^th January 1964

·        ILO CON. 98 – Freedom of Association and Collective Bargaining ratified on 13^th January 1964

·        ILO CON. 100 – Equal remuneration for work of equal value ratified on 7^th May  2001

·        ILO CON. 105 – Abolition of forced labour ratified on 13^th May 2001

·        ILO CON. 111 – Discrimination in employment ratified on 7^th May 2001

·        ILO CON. 138 – Minimum age of employment ratified on  9^th April 1979

·        ILO CON. 182 – Worst forms of child labour ratified on 7^th May 2001

   iv.            Judicial Precedent.  Also referred to as case law or judge-made law; means the decisions of judges as they lay down legal principles for future cases coming before them. The Kenyan legal system is based on the doctrine of precedent and as such superior courts decisions are binding on subordinate courts. Both common law and equity have developed through the doctrine of judicial precedents and stare decisis, which means that in trying and deciding a case, a judge, must look back to see how the previous judges have dealt with the case involving similar facts.  A judicial precedent contains two parts:

·        Ratio decidendi.

·        Obiter dictum.

The ratio decidendi is the rule acted on by the court in coming to the decision in a particular case. This is the binding decision. The rest of the judgment, which includes explanations and other cases cited in judge’s argument form the obiter dicta and is generally not binding but can be persuasive in nature.

     v.            Common Law and Customs. This is a branch of the law of England which was developed by the ancient common law courts from customs usages and practice of the English people, in 1066 AD and is said to originate from the Norman King. The courts applied the people’s customs to resolve legal problems thereby giving the customs the effect of law. The courts of Exchequer, Kings Bench and Common pleas were critical in the devolvement of the common law. This is largely un-codified law and is limited to laws applicable in England on or before the reception date of 12^th August 1897.

   vi.            Legal Writing. The works of highly published authors form persuasive authority to the labour laws of Kenya.

                     The Sources of Law in Kenya are found in a hierarchical form in Section 3 (1) of the Judicature Act.[1].International law which is conspicuously missing from the list finds expression now in the Constitution which predominantly makes Kenya a hybrid of a partly dualist yet partly monist state.

                     In conclusion therefore, the formal and voluntary sources of labour law can be summarized as including the Constitution and Acts of Kenyan Parliaments in addition to International Laws which the Kenyan people agree to be bound by. Similarly, judicial precedent may also be regarded as a voluntary source of law due to the respect and mandate of the judicial arm of government. Customs and common law apply in so far as the inhabitants of Kenya and the prevailing situation allow.

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[1] Chapter 8 Laws of Kenya