The Genesis of the Kenyan Nation State.

By Kate Kiama

The terms Nation, State, Country and Nation-State have been used to loosely refer to the Political, Economic, Social and Cultural actors in the International System. It would be judicious to embark on a brief definition of these terms as a starting point to this paper.

A Country[1] is commonly viewed as occurring when a group of people with their own customs and beliefs permanently occupy a territory[2]. A country can be a nation, state, province, region, city, community or commonwealth.[3] To be a Country, autonomy, independence or sovereignty is not a prerequisites. This assertion is best illustrated by the Kurds who have their own identity and traditions and form the province of Kurdistan under the administration of Iraq.

A State[4] is a country that either forms part of another or is independent. Max Weber[5] describes the State as a compulsory political organization with a centralized government that maintains a monopoly of the legitimate use of force within a certain territory.

A Nation has been defined as a culturally homogenous group of people larger than a single tribe or community who share a common language, institution, religion and historical experience.

The Nation State is therefore a  state that self-identifies as deriving its political legitimacy from serving as a sovereign entity for a nation as a sovereign territorial unit. A good example of present day Nation States may include France, Egypt and Germany.

In comparison therefore a Multinational State is a sovereign state which is viewed as comprising two or more nations; examples of which may include present day Canada and Belgium.

In the early sixteen and seventeenth centuries, Britain as with many other European allies embarked on empire building. The original expansion of the British interests overseas was essentially undertaken by private commercial companies. Where a territory was taken over by conquest, it became the property of the crown.[6] Legal authority over such territories vested in the Crown and Political authority lay in the Privy Council. It is of course not my assertion that prior to the British presence in these territories either in the form of the Imperial British East African Company[7] or through the missionaries or finally through the colonialists that these territories were neither inhabited nor sovereign. There is evidence of early human life and in fact the greater East African Region has been widely acknowledged as being the cradle of mankind.[8] The territory could be argued on the one hand to have been sovereign.

Sovereignty within the notion of a state may be analysed as meaning either the supreme legal authority within a state or the supreme political authority[9] within a state. This argument could be further supported by Thomas Hobbes[10] extreme version on the social contract theory, arguing that man is by nature incapable of regulating his life in peace and harmony with his fellow man. Hobbes’s view of a man in a society lacking a restraining all-powerful sovereign was inherently pessimistic an attitude often encapsulated in the often quoted phrase that ‘life is solitary, poor, nasty, and brutish and short. ‘Hobbes argued for there to be civil order, it was paramount for each man to surrender to his state his own sovereignty in exchange for security. Such surrender was only revocable in the event that this trust was broken and a war broke out.

According to Jean-Jacques Rousseau[11], the citizen enters into a ‘contract’ with the state surrendering individual rights in exchange for state protection. The state according to this scholar is vested with the general good will of the people and thus becomes the agent and ruler of the people in their own name. Man therefore comes together not due to their inherent violent natural state but rather for necessity and through participation in the decision making process which produces more often than not a democratic system of governance. It could therefore be persuasively argued that indeed prior to the colonialist arrival in Kenya; there were inhabitants whose evidence can be scientifically proven; and that these people were clustered in several ethnic groupings. It can further be argued that based on the sole fact that these tribes had some form of leadership and governance though informal, they were indeed sovereign based on the social contract theory and that there sovereignty lied in fact with them and that the extent of their sovereignty was absolute and inalienable.

If this is the case therefore, it would be possible to be inclined to the school of thought that seems to suggest that indeed Kenya was a Nation State even before June 15^th 1895[12].

In the alternative, it could also be argued that if indeed there were inhabitants, they were considered primitive natives and incapable of a structure system of governance such as the one demonstrated by the Sultan of Zanzibar[13]. It could be that the colonialists had their own  biases that they came with  that seem to explain why they willingly  acknowledged the  monarchical form of leadership used in Zanzibar which was almost the  same form of governance used in several European States at the time. It could also be argued that since there was only one identifiable leadership in the Sultanate of Zanzibar it was easier for the British and the Germany to recognize this form of  sovereignty and as such negotiate their terms and agreements with the Oman. If this was the case, it therefore follows that the sovereignty of the upper regions of present day Kenya at the time would prove very problematic especially because of the different leadership present in each ethic group. This multiple leadership structure would prove problematic and questionable  and it could thus be  inferred that the territory was not sovereign and subsequently  the argument of nation state does not hold. It would be interesting to discover how this theory can be defended especially in the case of ethnic groups who lived so closely to each other. It would be both theoretically and practically difficult to exactly pin point to whom their allegiance laid and in many instances the extent of their territory. In such circumstances intermarrying was rampant and hence the population of each state could never rely be defined. These among many other practical and geographical disputes further dents the nation state theory.

It is trite law that the process of creating new states is both a mixture of fact and law, involving the establishment of particular factual conditions and compliance with relevant rules. The accepted criteria of statehood were laid down in the Montevideo Convention (1933[14]), which provided for several requirements to be fulfilled prior to a declaration of statehood. The criteria of the convention are stipulated in Article 1: The state as a person of international law should possess the following qualifications;

·        a permanent population,

·        a defined territory,

·        government and

·        the capacity to entire into relations with other States

Article 3[15] provides, ‘The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.’…

Article 6[16] states, ‘The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.’

There is a huge ongoing debate whether or not satisfying the Montevideo criteria alone is enough to be a State or if recognition is also necessary. The two main doctrinal views are known as the declaratory[17] and constitutive[18] theories of Statehood.

Notwithstanding that the Montevideo Convention came into force in the year 1933, the assertion that the Nation State of Kenya came into being in June 15^th 1895 still faces further obstacles. Key among them is Article 3 and 6 of the convention. It could be argued that the fact that the British and German governments failed to recognize the sovereignty as they did the ten mile strip of what is now present day Zanzibar further proves problematic for the Nation State line of reasoning. This is because it seems that the colonialist were not being selective on which states to recognize as being sovereign but rather they seemed to have  had almost no choice but to recognize some territories if they satisfied  most of the common law criteria of statehood. This theory could further be questioned especially in regards to the ability of the Kenyan nation states to relate with each other. Most of the encounters with other such states were usually not fostered for economic or political interests but rather the   relations were almost always through conflict and conquest.

In conclusions, it consequently appears that the debate on whether or not Kenya was a nation state or became a nation state in 1895 depends on the spectacles and stand point of the historian, jurist and politician. As a jurisconsult after reviewing the law and applying it I have come to the    considered conclusion  that Kenya was not  a nation state  on June 15^th 1895.

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[1] Concise Oxford English Dictionary (9^th ed.). Oxford University Press 1995.

[2] In a legal context, the term territory usually denotes a geographical area that has been acquired by a particular country but has not been recognized as a full participant in that country's affairs.

[3] Quebec is considered to be a country despite the fact that it is a province of modern day Canada. Hawaii, Puerto Rico and the Virgin Islands are also considered to be countries. Puerto Rico, and the Northern Mariana Islands, are both commonwealths of the United States of America.

[4]http://en.wikipedia.org/wiki/State_(polity)

[5] Maximilian Karl Emil "Max" Weber (German: 21 April 1864 – 14 June 1920) was a German sociologist, philosopher, and political economist whose ideas influenced social theory, social research, and the discipline of sociology itself. Weber is often cited, with Émile Durkheim and Karl Marx, as one of the three founding architects of sociology

[6] Calvin’s case [1572] Eng.R. 64, (1572–1616) 7 Co.Rep. 1a, 77 E.R. 377  

[7] The Imperial British East Africa Company (IBEAC) was the administrator of British East Africa, which was the forerunner of the East Africa Protectorate, later Kenya. The IBEAC was a commercial association founded to develop African trade in the areas controlled by the British colonial power. 

[8] Fossils found in East Africa suggest that primates roamed the area more than 20 million years ago. During excavations at Lake Turkana in 1984, paleoanthropologist Richard Leakey assisted by Kamoya Kimeu discovered the Turkana boy, a 1.6 million year old fossil belonging to Homo erectus

[9] AV Dicey

[10] The Leviathan 1651

[11] The Social Contract and Discourse 176

[12] Kenya became a protectorate under the British Rule.

[13] In 1698, Zanzibar became part of the overseas holdings of Oman after Saif bin Sultan, the Imam of Oman, defeated the Portuguese in Mombasa. 

[14] This treaty was signed at the International Conference of American States in Montevideo, Uruguay on December 26, 1933. It entered into force on December 26, 1934. The treaty discusses the definition and rights of statehood.

[15] Montevideo Convention on the Rights and Duties of States (1933)

[16] Ibid

[17] provides that the moment in which an entity satisfies all the conditions set out in the Montevideo convention the entity is a State. This theory is close in line with the convention itself and the pronouncements of Articles 3 and 6.

[18] Sets out that it is the recognition of an entity as a State that makes it so.

 “Article 2 (5) and Article 2 (6) of the Constitution of Kenya do not entirely transform Kenya into a monist state as far as applicability of international law in the domestic sphere is concerned.” (Anonymous)  Paper by Kate Kiama

Introduction.

The Constitution of Kenya 2010 was promulgated on August 27^th 2010. The country’s new supreme law, which was endorsed by an overwhelming majority[1], is the foundation for ushering in the changes that Kenyans have been clamoring for decades, including restructuring of governance and expansion of the Bill of Rights. This paper will attempt to examine the implications of Article 2 (5) and 2 (6) of the Constitution which moves Kenya from a dualist to a monist State. The paper finds that Article 2 (5) and (6) seeks to ensure that Kenyans enjoy greater protection of the international treaties and conventions ratified by the State and as such makes  her a monist state to some questionable degree however.

Definitions.

Monism and dualism are terms used to describe the two approaches that states take in applying international law in their domestic systems. In states with a monist legal system, international law does not need to be translated into national law; the act of ratifying an international treaty immediately incorporates that international law into national law. In Germany for instance, treaties have the same force as domestic legislation[2]. For states with a dualist system, such as Britain, international law is distinct and separate from national law and is not directly applicable domestically[3]. It must be translated into national legislation before it can be applied by the national courts or implemented by the executive.

Historical developments; a move from dualism.

Under the 1963 Constitution, Kenya was a dualist State; any treaty or convention ratified by the country did not have the force of law unless it was domesticated by passage of appropriate legislation to effectuate the same.

Article 2 (5) of the Constitution of Kenya 2010 states that ‘[T]he general rules of international law shall form part of the law of Kenya.’ This means that international law, including customary international law, is a source of law in Kenya. Article 2 (6) further states that ‘[A]ny treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.’ It seems that by virtue of these provisions, Kenya is effectively converted from a dualist into a monist State as treaties and conventions do not need to be domesticated for them to have the full force of law in present day Kenya.

It could also be argued that the said provisions do not convert Kenya into a strictly monist State because of others constitutional provisions. These includes Article 2 (4) which is to the upshot that ‘[A]ny law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid; and Article 21(4) of the same Constitution which provides that ‘[T]he State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms.’ It is my considered opinion that the effect of distinguishing international law in the form of treaties or conventions as provided for in Article 2 (6) and other international law sources as demonstrated by Article 2 (4) to all intents and purposes makes Kenya a partly monist and partly dualist State. The same can be further buttressed by the effect of Article 21 (4) which gives legitimacy to international law by domesticating the same. In a purely monist state, a judge is in essence empowered to declare that a domestic law that is not in conformity with international law is null and void. Kenyan Judges do not seem to have this authority hence the assertion that we remain partly dualist and yet now show signs of a partly monist state due to the various characteristics we posses in our application of international law presently.

Monism versus Dualism

In general, international law standards should ideally operate directly and immediately within the domestic legal system of each state party. However, not all treaties can become immediately effective even in purely monist states. A distinction exists between ‘self-executing’ and ‘non-self-executing’ treaties. The former[4] are able to operate automatically within the domestic field without the need for any legislation, while the latter[5] require enabling statutes to be passed before they can function inside the country and bind the courts. It therefore gives the impression that no state can practically be a purely monist state as some international law requires all states without distinction to enact enabling statutes to incorporate the provisions of the international law.

The sovereignty of the Kenyan Constitution still remains unimpaired in light of it being a partly monist and partly dualist state notwithstanding Articles 7(2) of the Vienna Convention on the Law of Treaties which recognizes that Heads of State, Heads of Government and Ministers for Foreign Affairs as being able to represent their states for the purpose of performing all acts relating to the conclusion of a treaty without having to produce full powers. Parliament is entrusted with the duty and power to give effect to ratified treaties through enactment of acts of parliament. Article 94 (5) of the Constitution provides that ‘[N]o person or body, other than parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation.’ This article enforces the notion of separation of powers between the executive and legislative arm of government. It also offers a control and scrutiny measure of ratified treaties.

It can be seen that the Courts are presently taking the approach of incorporating international law into our laws as can well be demonstrated by the recent decision in the matter of Ziporrah Wambui Mathara[6]. The Court observed that the ICCPR is now part of Kenyan law by virtue of Article 2 (6) of the Constitution and held that incarceration of one for failure to pay a civil debt goes against Article 11 of the ICCPR. In this instance, the Court chose to uphold the ICCPR instead of the Civil Procedure Act, Cap. 21, which allows as one of the means of enforcing a judgment, the committal of the judgment debtor to civil jail. The force of the case demonstrates the monist nature of the present day Kenya. Our courts are now intent to have uniform jurisprudential application of international law and are seen to nowadays take judicial notice of Principle 7 and 8 of the Bangalore principles on domestic application of human rights norms which provides that ‘[W]here national law is clear and inconsistent with the international obligations of the State concerned in common law countries the national court is obliged to give effect to international law’.

It is of paramount importance to note that traditionally, dualism is known to be a common law doctrine whereas monism is recognized as a civil law idea. Kenya being a common law country, it was easy to justify in the previous constitutional dispensation why it was regarded as a dualist state. This is best illustrated by the Section 3 (1) and (2) of the Judicature Act[7] which lists the sources of law in Kenya. In this list international law is conspicuously missing. The implication of this was that, one would not go to a court of law in Kenya  before 2010 and purport to rely on a provision of an international treaty or convention, to seek redress on the grounds that his/her  rights under these covenants have been violated and ask the court to adjudicate the matter based on that. Although Kenya has ratified some of these instruments, the courts were still then faced with such problems as regarding the applicability of international law in the absence of implementing legislation. In the decided case of Mary Rono versus Jane Rono[8] the Court of Appeal was faced with the question of determining inter alia, whether international customary and treaty law could be applied in the absence of domesticating legislation. The court held that, ‘even though Kenya subscribe to the common law view that international law is only part of domestic law where it has been specifically incorporated, current thinking on the common law theory is that both international customary and treaty law can be applied by a state courts where there is no conflict with existing state law, even in the absence of implementing legislation.’ Due to the new invention of interpretation of the law then, the case achieved a land mark status and created a precedent that brought a little relief to litigants whose solutions would only be found in the international instruments. This decision however no matter its consequences did not change Kenya from being a dualist state at that point in time. In the case of Peter Anyang' Nyong'o & 10 others v Attorney General[9], also heard and determined before the 2010 Constitution, The High court made two very important findings; one, that the Minister for Foreign Affairs had powers to ratify treaties under the Vienna Convention and two that Treaties are not strictu sensu "laws" in terms of the constitutional and legislative process set out in the Constitution. This meant that international law could not be applied in Kenya without it going through a legislative process. This reaffirmed the Kenyan traditional way of treating international law within its legal structure both in terms of the adoption of international law into the Kenya’s legal system as well as the application and the effect of such instruments within the domestic sphere.

Conclusion.

Article 2 (5) and Article 2 (6) of the Constitution of Kenya 2010 granted does not entirely transform Kenya into a monist state as far as applicability of international law in the domestic sphere is concerned; but there has undeniably been a shift  from a purely dualist state to a partly monist and partly dualist state.

This can be verified by the recent judicial atmosphere in acknowledging the force of international law especially in giving redress to litigants whose remedies can only be found from effecting international instruments. The judiciary still maintains that international law is subordinate to domestic legislation as was stated quite recently by Justice Majanja in the decided case of Beatrice Wanjiku & Another versus the Attorney-General & Another 2012[10]; which further demonstrates the dualist nature of the State’s relation with international law.

The Treaty making and Ratification Act 2012 confirms that Kenya still maintains the discretion to implement international laws through parliament ,offering Kenyans the comfort  that international norms and practices that are contrary to the peoples beliefs and customs  can be avoided through parliamentary intervention through Article 94 (5) of the Constitution. The Act was passed in order to give life to the provisions of Article 2 (6) of the Constitution and aims to give the procedure to domesticate treaties and the ratification of the same. It is therefore my conclusion that Kenya post 2010 is not a fully dualist state; yet retains a considerable degree of dualism;  and the state now also  displays some forms of monism, hence the notion that we are neither purely dualist nor purely monist but enjoy a mixture of the two systems. This dichotomy offers Kenyans better protection of international rights and obligations yet also retains the Constitutional Supremacy and the purview to opt out from international customs that the Kenyan people are not ready and willing to embrace as yet.

 

 

 

 

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[1] The Constitution was ratified by over 67 percent of the total votes cast, http://www.iiec.or.ke/index. php/August-2010/final-referendum-results-are-gazetted.html

[2] Internationale Handelsgesellschaft mbH v EVST (1972) 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.

[3] 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.

 

[4] For instance the provision in Article 2 of the ICCPR obliging all state parties to “legislate where necessary to give effect to the rights recognized in the Covenant…”

[5] For instance, the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 requires states pass legislation in order to make the acts criminalized in the Convention illegal under its domestic law.

[6] Bankruptcy Cause No.19 of 2010, (unreported). 

[7] The Judicature Act Cap 8 Laws Of Kenya; The section lists the sources of law in Kenya 

[8] Rono v Rono (2005) AHRLR107 (KeCA 2005).  

[9] [2007]eKLR 

 

[10] [2012]eKLR

Intra Health Opportunity

IntraHealth passed along this amazing opportunity for this year's International Family Planning Conference in Addis, Ethiopia from November 12-15. 

The organizers are seeking youth aged 18-­‐25 years old to serve as speakers and/or moderators on youth focused and other sessions at the conference. Young people who are selected will have conference registration and travel costs covered, and will play an essential role in providing a youth perspective to the program.

This year in the spirit of using new technology to spread the word about family planning, the 2013 ICFP will be accepting applications for youth speakers through video submissions. All youth must complete their own video submission, but may seek assistance from local organizations or other resources. At least one professional reference should be provided in support of the candidate’s qualifications.

The applicant must have experience in the field of family planning, and/or sexual and reproductive health, or adolescent health to serve as moderators and/or speakers at youth focused sessions. It is encouraged that the applicant talk about family planning in relation to the conference theme -­‐ Full Access, Full Choice -­‐ or make a creative video related to the theme.

The deadline for submission is August 13, 2013. Please find additional information attached and at the below link.

For questions about the application process, contact: youth@fpconference2013.org Apply online at: https://www.fpconference2013.org/youth. Attached is the ICFP 2013 Youth Speaker Call for Applications (English PDF flyer + PDF application guidelines). 

 

2ND EAC UNIVERSITY STUDENTS’ DEBATE ON EAC INTEGRATION 2nd – 3rd SEPTEMBER, 2013 (CONCEPT NOTE-ADVERTISEMENT)

EAST AFRICAN COMMUNITY EAST AFRICAN COMMUNITY - NYERERE CENTRE FOR PEACE RESEARCH (EAC-NCPR) 2ND EAC UNIVERSITY STUDENTS’ DEBATE ON EAC INTEGRATION 2nd – 3rd SEPTEMBER, 2013 (CONCEPT NOTE-ADVERTISEMENT) 1.0 Background The East African Community (EAC) is the regional intergovernmental organization of the Republics of Rwanda, Burundi, Kenya, Uganda and the United Republic of Tanzania with its Headquarters in Arusha, Tanzania. The Vision of the EAC is “A prosperous, competitive, secure, stable and politically united East Africa”. The Mission is to widen and deepen economic, political, social and cultural integration in order to improve the quality of life of the people of East Africa through increased competitiveness, value added production, trade and investments. The EAC integration is to be realized in an incremental progression through the stages of a Customs Union; Common Market; Monetary Union; and ultimately a Political Federation of the East African States. A fully fledged Customs Union was established on 1st January, 2010, after five years of transitory implementation. The EAC Common Market which came into force on 1st July, 2010, provides for free movement of persons, capital, goods, services, and the rights of residence and establishment. Negotiations for the Monetary Union have commenced and it is expected that they may be concluded soon. The ultimate and the last stage of EAC integration is the Political Federation, institutional and capacity development to lay its foundation are ongoing. 2.0 Engagement with the Youth in East Africa The youth of East Africa are important stakeholder in the EAC processes and form substantial part of the population. Article 120 (c) of the EAC Treaty provides for adoption of a common approach for involvement of the youth in the integration process through education, training and mainstreaming youth issues into EAC policies, programmes and projects as one of the strategic interventions towards the realization of a fully integrated Community. The East African Community Youth Summit on EAC Integration and Development Processes held in Arusha, Tanzania from 2nd – 3rd November, 2007 set the precedent for youth participation in the EAC integration. The Summit acknowledged that information and education on East African Integration and development is fundamental for enhancement and sustainability of regional integration. The youth called upon the EAC Secretariat to engage young people as partners to reach out to their peers on issues of EAC Integration and processes which will empower high-level skills needed to drive national and regional development. The Secretariat through its Nyerere Centre for Peace Research on a continuous basis has engaged youth on issues pertinent to the integration process through training exchange programs and providing a platform to participate. To date, more than 80 EAC students from East African Universities have benefited from the exchange training programs on Peace and Conflict Resolution and Human Rights. These programs created an enabling environment for students to play an active role in the integration process as well as offered the students a platform that enables them to learn more about the region. 3.0 1st EAC University Students’ Debate on Regional Integration. In 2012, the Secretariat held the 1st EAC University Students Debate on Regional Integration. The aim of the debate was to provide a regional platform to promote dialogue among the youth and interest them in advocating for regional integration initiatives. The 1st EAC University Students’ Debate attracted over 100 students and 15 lecturers from public, private and other higher institutions of learning. In addition, the debate also brought together representation from private sector, civil society, media, technocrats and academia. Six participants were drawn from each Partner States making a total of 30 debaters. Students from other local universities in Arusha also attended and took part in the debate. Mr. John - Sibi Okumu, Inter-University Zain African Challenge, moderated the debate. As an outcome of the 1st Debate, 5 EAC Youth Ambassadors were appointed as focal points in their respective Universities. The EAC Youth Ambassadors in collaboration with the EAC Secretariat have sensitized their peers on the EAC integration processes, benefits and challenges. This has enhanced increased awareness on regional integration and networking among institutions of higher learning in the region. Moreover, the fact that the EAC integration is people centered, the Youth have the potential to foster creativity, innovation, leadership and sharing of information and nurture a bond of “eastafricaness” with a distinct East African identity that is very much desired. The 1st debate has seen the formation of EAC Youth Clubs at universities, this has resulted in appreciation and constructive youth dialogues on the integration process. 3.0 Objective of the University Students Debate The main objective of the EAC University Students debate is to promote continuous dialogue among the youth and interest them in advocating for regional integration initiatives. The specific objectives are; i. ensure continued participation of the youth in integration matters in the EAC region; ii. encourage networking among university students in a bid to enhance EAC Integration; iii. popularize the EAC integration Agenda through creating platforms that encourage sharing of experiences. iv. prepare the youth for future leadership roles; as they hold the mantle as Ambassadors of integration in the region. 4.0 Participation and guidelines for application The East African Community Secretariat will cover transport expenses, accommodation and meals for the participants during the two days event. Six participants will be selected from each of the EAC Partner State, drawn from national universities, public, private and other institutions of higher learning. The participants will be either on the opposition or proposition side but the Secretariat reserves the prerogative to ensure that both sides have equitable membership. More information will be submitted to successful candidates in good time to allow for sufficient preparations. The Debate will be based on a topical issue related to the EAC integration. It will be moderated by five judges with expertise on the specific area of discussion and on the overall area of EAC integration in general and political integration in particular. Participation in this debate is limited to students who are in their second year at the university pursuing a degree. Students who participated in the 1st debate need not to apply to give an opportunity to others to take part. Interested applicants with good analytical and communication skills; and a good command of English are encouraged to apply. Please note that the Debate will be conducted in English. 5.0 Expected Outcomes The debate will also bring together representatives from academia, private sector, civil society, media and technocrats from the East African region who will listen to the debate and make their comments on the strength of the deliberations and make recommendations on the way forward for the debate. The debate will be streamed live on the EAC website to enable a wide view of the event and broadcasted in the media. This will be followed by highlights of key emerging issues and best debaters will be appointed as EAC Youth Ambassadors 2013/2014 with an obligation to spear head peer to peer learning in their respective universities in collaboration with the EAC Secretariat and EAC Ministries in the Partner States. There will a Dinner Gala where a cash prize will be given to the Best debaters and the winning team. In the spirit of promoting a sense of “eastafricaness”, it is expected that by the end of the debate, a bond will have been created among the students thereby shaping and nurturing the East African identity among the youth, in the long run. Participants would have been empowered to continue engaging in debate on matters of EAC integration. The EAC University Debate on regional integration provides a pedestal to the youth to participate and contribute to policy formulation on issues that constitute the EAC Youth agenda. How to apply Applicants who are interested to participate should apply by explaining why they are interested to participate, indicate which University they come from and the Year of Study. In addition, applicants are expected to write an essay on “Understanding the Opportunities and Challenges arising from the EAC Integration for Youth in East Africa”. The essay should not exceed 2 pages, bookman old style font with single line spacing. Lastly, applicants are required to attach their CVs, copies of their national ID and University Identity Card. Please send your applications to – EAC-Nyerere Centre for Peace Research, on Email: eac@eachq.org and copy Ms Barbara Kaboha, Program Assistant, Nyerere Centre for Peace Research, on email – BKaboha@eachq.org and Pamela Kanora, Research Assistant, Political Affairs, on email PKanora@eachq.org. The application should reach EAC not later than 2nd August, 2013. East African Community Secretariat July, 2013 Arusha - Tanzania

The law of gifts in contemplation of death

The Law in Contemplation of death;donatio mortis causa- by Kate Kiama There exists several ways in which a person can pass of their property to another, in life an in death. This may include through a will whether made orally or in writing, through the survivorship rules where parties hold property either as joint owners or the last tenant in common, or through nomination and by means of death bed gifts. This section will attempt to address the latter on the laws of gifts in contemplation of death. Donationes mortis causa are lifetime gifts, but take effect only when the donor dies. The gift is therefore conditional on death. A donatio moritis causa has been described as a singular form of a gift, it may be said to be of an amphibious nature , being a gift which is neither an inter-vivos nor a gift made by will .They are sometimes inaccurately called ‘death-bed-gifts’ and are rarely encountered in practice and are subject to special rules. The explanation for the recognition of these types of gifts is found in the decision of Hedges versus Hedges (1708)- “Where a man lies in extremity or being surprised with sickness, and not having an opportunity to make a will, but lest he should die before he could make it, he gives with his own hands his goods to a friends about him; this if he dies shall operate as a legacy.” In order to make the gift valid, it must be made so as to take complete effect on the donor’s death as was established in Re: Beaumount (1902) .It is paramount to note that a donatio, like any other testamentary gift is also liable to inheritance tax. A valid donatio mortis causa must fulfill four conditions: i. The gift must be made in contemplation of the donor’s death. Re Craven’s Estate 1837.The donor must reasonably believe that his death is in the near future and he is not merely thinking about death or suicide and that further the gift must be unconditional. ii. The gift is conditional on death. This is to the effect that the donor may change his mind before death and that he can claim the gift if he lives. The statutory survivorship rules also applies and as such the donee must survive the donor. iii. The donor must actually transfer, or arrange to transfer the gift to the donee. It is sufficient to hand to the donee the means by which ownership can be determined. The donee taking possession of the keys to a car will be evidence of the transfer of ownership. It was previously thought that there can be no valid gift of land by means of a death-bed-gift. In the case of Sen versus Headley 1991 an elderly man who had no heirs died intestate. Three days before his death, he handed Mrs. Sen his house keys saying “the house is yours and the deeds are in the steel box”. The court surprisingly held that there existed a valid gift as all the elements of a donatio mortis causa had been complied with. The question of what are the appropriate documents needed to effectuate a transfer or that must be delivered to the transferee is to be answered by applying the test propounded by the Court of Appeal in Birch versus Treasury Solicitor (1951) namely that the real test is whether the instrument amounts to a transfer as being an essential indica or evidence of title, possession and production of which will reasonably entitle the possessor to the money or property purported to be given. iv. The gift must be capable of forming a donationes mortis causa before transfer . For instance it would be imagined that in case of land, it should be free from encumbrances. In Re: Beaumount , it was held that cheques and promissory notes are not capable of forming death bed gifts. This is because a man’s own cheque or promissory note is not property when given by the donor to the donee because a cheque for instance is a revocable order to the banker to make payments in favor of the person whom the cheque is drawn up for; and a promissory note is merely a gratuitous promise. In the case of Moore versus Moore (1874 ) it was held that railway stocks and building society shares are also not proper subject matters of a donatio. If the deceased attempted to give a gift as a donatio mortis causa but it was ineffective, the personal representative and executors of the estate are not compelled to rectify the defect; but the gift can be saved if the donee obtains title to the assets in some other way. Strong versus Bird (1874) is to the effect that donatio mortis causa fall within the exception to the maxim that equity will not assist a volunteer. For instance where the title to a chooses in action does not pass by mere delivery of any documents, and where there has been no formal transfer of the legal title, for the purposes of a donatio mortis causa, delivery of the appropriate document may be regarded as equivalent to a transfer and equity will perfect the imperfect gift. Occasionally statutes may also perfect an imperfect gift. The Laws relating to death bed wishes are to some extent unfair as they do not apply if the donor dies in a way that he had not previously contemplated. Rationally will makers also acknowledged the fact that they might die and will die; it is a bit strange that the form of your death is of such paramount importance for the donation mortis causa to be valid. It would be desirable if persons could make their donatios in the presence of others including non-beneficiaries for the purposes of witnessing the same yet the law treats this as not a strict formality in making a valid and effective donation mortis causa.

Introducing the Washington Fellowship for Young African Leaders

WHAT IS THE WASHINGTON FELLOWSHIP? The Washington Fellowship is the new flagship program of the President’s Young African Leaders Initiative (YALI). This program will bring over 500 young leaders to the United States each year, beginning in 2014, for leadership training and mentoring, and will create unique opportunities in Africa to put those new skills to practical use in propelling economic growth and prosperity, and strengthening democratic institutions. The Washington Fellowship will: Invest in a new generation of young African leaders who are shaping the continent’s future. Respond to the strong demand by young African leaders for practical skills that can help them take their work to the next level in the fields of public service and business. Deepen partnerships and connections between the United States and Africa. Build a prestigious network of young African leaders who are at the forefront of change and innovation in their respective sectors. WELCOMING PROMISING LEADERS TO THE UNITED STATES Leaders will attend U.S. universities for training in one of three areas: public management and administration; business and entrepreneurship; and civic leadership. Training in each of these sectors will focus on the skills young African leaders need to run better ministries, start and grow businesses, and serve their communities. The initiative will grow to 1000 young leaders each year. Washington Fellows will spend six weeks at top American universities and colleges that will provide tailored training in the sectors above, leveraging top faculty, cutting-edge curricula, and local opportunities to impart practical professional and leadership training. Formal university training will be augmented by workshops, mentoring, and networking opportunities with leaders in each field, as well as internships across the United States. For example, U.S. agencies such as the Overseas Private Investment Corporation and the Export-Import Bank will host Washington Fellows as interns to expose them to the U.S. workplace and practices, and build their technical skills. Washington Fellows will also benefit from partnerships with American companies like Boeing, which will provide leadership training at the Boeing Leadership Center in St. Louis to extend Fellows’ campus-based training. The Fellows will also have the chance to interact with the President during an annual Summit in Washington, D.C., along with other senior U.S. government, business, and civic leaders. INVESTING IN OPPORTUNITIES ON THE CONTINENT Washington Fellows’ U.S.-based training will only be the beginning of the United States’ long term investment in these young leaders. To ensure that participants can put their newly-acquired skills and experiences to use, the U.S. Government is working with businesses, governments, and institutions to create meaningful opportunities in Africa. The Washington Fellowship will offer participants valuable access to internships and job opportunities in the private and public sectors. We are establishing partnerships with companies, government ministries, research institutions, regional organizations, and non-profit and community-based organizations across the region to provide meaningful career opportunities for these young leaders. For example, Microsoft will connect Washington Fellows with internships in their offices across Africa, including in Cairo, Tunis, Casablanca, Abidjan, Dakar, Accra, Lagos, Abuja, Luanda, Johannesburg, and Nairobi. Ethiopian Airlines will offer participants the opportunity to train at their business management and corporate governance platforms at its hubs around the world. Washington Fellows will have access to dedicated funding opportunities to support their ideas, businesses, and organizations. Over $5 million in small grants will be awarded in the first three years by the U.S. African Development Foundation to Washington Fellows seeking to start their own businesses or social enterprises. The U.S. State Department will invest an additional $5 million over the course of the program to help alumni establish or grow non-governmental organizations, undertake a project to improve their community, or work collaboratively to build the network of young African leaders, including reaching into underserved areas. USAID will establish regional hubs and coordinators to connect Washington Fellows to these opportunities and leverage over $200 million in ongoing youth programs and initiatives on the continent. CRITERIA FOR APPLICANTS: Be a citizen of and reside in a sub-Saharan African country. Persons holding U.S. citizenship or permanent residency are ineligible. Speak and write proficiently in English. Be between 25-35 years of age at the time of application submission, although exceptional candidates younger than 25 will be considered. Have a proven record of leadership and accomplishment in public service, business or entrepreneurship, or civic engagement. Demonstrate a commitment to public or community service, volunteerism, or mentorship. Be committed to return to Africa and contribute their skills and talents to build and serve their communities.