Author: NLM Correspondent

By Shadrack Muyesu Under the title “Why a constitution cannot be unconstitutional”, the October 2016 issue carried an antithesis of my “controversial” work, “Unconstitutionality of the Constitution”, that ran in the September 2016 edition. The author, Newton Arori, questioned the idea that there exist superior norms within and without the Constitution, against which constitutional amendments ought to be gauged for constitutionality. Citing an array of sources, Arori provided an alternative in the rationale that constitutional clauses were all complementary, with none being superior to the other. He also noted the absence of a constitutional forum within which the constitutionality of…

BY NEWTON ARORI In an attempt to defend his controversial submissions in Unconstitutionality of the constitution, Shadrack Muyesu has made at least three arguments in On unconstitutionality, opponents miss the point by a mile, which we shall address here. Natural law The first of his arguments, and indeed one that is a central pillar to Muyesu’s whole premise, is that in the setting of “natural law”, constitutions may be unconstitutional. That much is correct, except that the existence of natural law itself is questionable. The concept of natural law is problematic mainly because of its vagueness. What exactly is natural…

By Mumo Mutisya The law of Succession Act, Cap 160 (hereinafter “the Act”) provides for three categories of dependants: (a) the wife or wives, or former wife or wives, and the children of the deceased, whether or not maintained by the deceased immediately prior to his death; (b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and (c) where the deceased was a woman, her husband if he…

By Daniel Benson Kaaya Insolvency of a company is a culmination of many factors. These factors may be internal or external, and include insufficient liquidity, value chain dependency, management conflicts, excessive expenditure, competition, impractical business ventures, inadequate resources to cover the costs of making the business venture, government policy, political instability, economic crisis and recurrent operating losses, among others. Charles A. O’Reilly III and Michael L. Tushman, in their book, Lead and Disrupt, argue that companies don’t generally fail because of competition; rather, it’s out-of-touch leadership that kills them. Leaders of such companies are rigid in one way or another—unable…

By Kelvin Njuguna Mugwe The promulgation of Kenyan Constitution 2010 ushered in novel provisions dealing with human rights. In their wisdom, the drafters of the Constitution correctly viewed the Bill of Rights as the fourth in priority given the unmatched ramifications if the same are disregarded. Chapter Four of the Constitution enumerates, in utmost precision and clarity, a plethora of fundamental rights and freedoms. The Bill of Rights, which has been referred in some quarters as the most progressive in the world, retains most of the rights existing in the independence constitution under Chapter Five. However, salient inclusions are also…

By Sunday Memba “In the sphere of medical treatment, the refusal to accept a particular medical treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of the mentally competent adult, would interfere with the person’s physical integrity…” – Perry vs. UK (Application 2346/02 (2002) 66 BMLR 147 ECtHR) Under common law, the legality of a medical treatment or procedure will largely turn upon whether the patient has given a valid consent to it. Any procedure or treatment that does not meet the crucial test of consent may amount to the tort of…

By Ian-Johnson Ondari There is an unusually volatile piece of legislation being deliberated that could have an overbearing impact on the legal and economic infrastructure, if enacted in its present form. The Nairobi International Financial Centre Bill (2016) will undeniably culminate in attrition of fundamental constitutional principles, barring the associated economic implications owed, in part, to the delicate governance structure. The International Financial Centre (IFC) was the brainchild of Kenya’s Vision 2030, and is aimed at encouraging Foreign Direct Investments (FDI) through the creation of a well-functioning financial system. Ideally, IFCs are jurisdictions whose laws and institutions provide optimal conditions…

By Antony Mutunga China is the most populated country in the world; it has an expressway system that is estimated to stretch over 85,000km to serve its large population. However, the extensive expressway has led to the establishment of toll stations; it is estimated that over 70% of all tolled roads in the world are found in China. Despite being a way for the government to collect revenue, the toll stations have been met with opposition from the Chinese, who say it has brought more harm than good. People say that due to the toll stations, there is a lot…

BY PHOEBE NADUPOI The Independent Electoral and Boundaries Commission (IEBC) recently gazetted rules to control campaign spending. Of interest in the new regulations is the capping of spending for each elective position. For a presidential candidate, the limit is Sh5.25 billion whereas aspirants for gubernatorial, senate or women representative seats shall not exceed Sh33.4 million. Further, those seeking to be members of county assemblies can only spend up to Sh10.3 million. Whereas controlling campaign spending is a good thing, setting high limits for campaign financing has the potential to lock out many potential political leaders. These upper limits seem to…

Most tertiary institutions have listed among their graduate attributes the ability to think critically. This seems a desirable outcome, but what exactly does it mean to think critically and how do you get students to do it? The problem is that critical thinking is the Cheshire Cat of educational curricula – it is hinted at in all disciplines but appears fully formed in none. As soon as you push to see it in focus, it slips away. If you ask curriculum designers exactly how critical thinking skills are developed, the answers are often vague and unhelpful for those wanting to…