The Constitution of the Republic of Kenya 2010 (Constitution) provides that general rules of international law such as customary international law form part of the laws of Kenya.1 Articles 2(5) and (6) provides that “[t]he general rules of international law shall form part of the law of Kenya...Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”
{"title":"An evaluation of Kenya’s parallel legal regime on refugees, and the courts’ guarantee of their rights","authors":"R. D. Nanima","doi":"10.4314/LDD.V21I1.3","DOIUrl":"https://doi.org/10.4314/LDD.V21I1.3","url":null,"abstract":"The Constitution of the Republic of Kenya 2010 (Constitution) provides that general rules of international law such as customary international law form part of the laws of Kenya.1 Articles 2(5) and (6) provides that “[t]he general rules of international law shall form part of the law of Kenya...Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.”","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127783451","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Governments around the world are becoming increasingly aware of the importance of the tourism sector and the role it can play in regional economic development. This is mainly due to the dramatic growth the sector has undergone in many countries, which has seen it become more of an income generator than some of the key industries these countries have traditionally depended on for their revenue.1 Tourism encompasses services provided by hotels and restaurants; travel agencies and tour operator services; tourist guide services; as well as “other related” services.2
{"title":"Development and regulation of tourism for mutual benefit in the Southern African Development Community (SADC)","authors":"Palollo Michael Lehloenya","doi":"10.4314/LDD.V21I1.5","DOIUrl":"https://doi.org/10.4314/LDD.V21I1.5","url":null,"abstract":"Governments around the world are becoming increasingly aware of the importance of the tourism sector and the role it can play in regional economic development. This is mainly due to the dramatic growth the sector has undergone in many countries, which has seen it become more of an income generator than some of the key industries these countries have traditionally depended on for their revenue.1 Tourism encompasses services provided by hotels and restaurants; travel agencies and tour operator services; tourist guide services; as well as “other related” services.2","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117205807","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Between separation of powers and justiciability: Rationalising the Constitutional Court's judgement in the Gauteng E-tolling litigation in South Africa","authors":"C. Okpaluba, Mtendeweka Mhango","doi":"10.4314/LDD.V21I1.1","DOIUrl":"https://doi.org/10.4314/LDD.V21I1.1","url":null,"abstract":"","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133284392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
1 Nazzini R “Remedies at the seat and enforcement of international arbitral awards: res judicata, issue estoppel and abuse of process in English law” (2014) 7(1) Contemporary Asia Arbitration Journal 139 at 149-158; Sinai Y “Reconsidering res judicata: a comparative perspective” (2011) 21 Duke Journal of Comparative & International Law 353 at 357-400; Wunsh B “Is issue estoppel part of our law?” (1990) 2 Stell LR 198 at 198-218; and Roodt C “Reflections on finality in arbitration” (2012) 45(2) De Jure 485 at 498-503. LAW DEMOCRACY & DEVELOPMENT LAW DEMOCRACY & DEVELOPMENT
[1]刘志强，“国际仲裁裁决在地救济与执行:既判力、禁言与程序滥用”，《国际仲裁研究》(2014)第7期。“对既判力的再思考:比较视角”(2011)21 Duke Journal of comparative and International Law，第353期，第357-400页;问题禁止反悔是我们法律的一部分吗?“(1990)2 Stell LR 198，第198-218页;陈志强，《关于仲裁终局性的思考》(2012)45(2)De Jure 485: 498-503。法治民主与发展法治民主与发展
{"title":"Confronting selected difficulties associated with the enforcement of res judicata in South Africa with reference to Samancor v Rham Equipment (532/13) [2014] ZASCA 66","authors":"Howard Chitimira","doi":"10.4314/ldd.v20i1.12","DOIUrl":"https://doi.org/10.4314/ldd.v20i1.12","url":null,"abstract":"1 Nazzini R “Remedies at the seat and enforcement of international arbitral awards: res judicata, issue estoppel and abuse of process in English law” (2014) 7(1) Contemporary Asia Arbitration Journal 139 at 149-158; Sinai Y “Reconsidering res judicata: a comparative perspective” (2011) 21 Duke Journal of Comparative & International Law 353 at 357-400; Wunsh B “Is issue estoppel part of our law?” (1990) 2 Stell LR 198 at 198-218; and Roodt C “Reflections on finality in arbitration” (2012) 45(2) De Jure 485 at 498-503. LAW DEMOCRACY & DEVELOPMENT LAW DEMOCRACY & DEVELOPMENT","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132690511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
During the pre-colonial era, societies in Africa were ruled by traditional leaders led by kings who were supported by chiefs, headmen and traditional councillors.1 During the colonial conquest, the role of traditional leaders in the governing of people in Africa was weakened by the colonial masters and, later, by the apartheid government which reduced and/or took away most of the original, important powers of traditional leaders.2 Although the powers of traditional leaders were eroded, these rulers continued to
{"title":"Revisiting the participation of traditional leaders in municipal councils in South Africa","authors":"M. Mathenjwa, P. Makama","doi":"10.4314/LDD.V20I1.11","DOIUrl":"https://doi.org/10.4314/LDD.V20I1.11","url":null,"abstract":"During the pre-colonial era, societies in Africa were ruled by traditional leaders led by kings who were supported by chiefs, headmen and traditional councillors.1 During the colonial conquest, the role of traditional leaders in the governing of people in Africa was weakened by the colonial masters and, later, by the apartheid government which reduced and/or took away most of the original, important powers of traditional leaders.2 Although the powers of traditional leaders were eroded, these rulers continued to","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"169 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121753871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Although the question of the formation of a government has generated a lot of interest amongst constitutional and political scholars elsewhere, in Lesotho it has never really been much of a constitutional controversy, at least practically, since independence. The main reason has been that due to the constituency based electoral system which the country has been using since independence, only one political party has always been able to garner a sufficient majority to form the government, and the leader thereof would easily be invited to form government without any controversy.
{"title":"Formation of a government in Lesotho in the case of a hung parliament","authors":"H. Nyane","doi":"10.4314/LDD.V20I1.9","DOIUrl":"https://doi.org/10.4314/LDD.V20I1.9","url":null,"abstract":"Although the question of the formation of a government has generated a lot of interest amongst constitutional and political scholars elsewhere, in Lesotho it has never really been much of a constitutional controversy, at least practically, since independence. The main reason has been that due to the constituency based electoral system which the country has been using since independence, only one political party has always been able to garner a sufficient majority to form the government, and the leader thereof would easily be invited to form government without any controversy.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"27 1-2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132846540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Across Africa, traditional justice systems have survived in various forms, serving large populations located mainly in rural communities. A number of accounts of how these systems were used, neglected or reshaped have been written. Importantly, the norms and practices, which make up the fabric of customary law in African societies, are neither homogenous nor static. For these and other reasons, changes in traditional perceptions of justice and in the way justice is administered have over time informed the articulation of concepts, such as, the restatement of customary law and the ascertainment of living customary law.
{"title":"Integrating the Traditional with the Contemporary in Dispute Resolution in Africa","authors":"Adenike Aiyedun, A. Ordor","doi":"10.4314/LDD.V20I1.8","DOIUrl":"https://doi.org/10.4314/LDD.V20I1.8","url":null,"abstract":"Across Africa, traditional justice systems have survived in various forms, serving large populations located mainly in rural communities. A number of accounts of how these systems were used, neglected or reshaped have been written. Importantly, the norms and practices, which make up the fabric of customary law in African societies, are neither homogenous nor static. For these and other reasons, changes in traditional perceptions of justice and in the way justice is administered have over time informed the articulation of concepts, such as, the restatement of customary law and the ascertainment of living customary law.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130126878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 5 August 2016, the Electoral Court delivered its judgment in the case of National Freedom Party v The Electoral Commission and Others (NFP No 2) and dismissed an application by the National Freedom Party (NFP) to retrospectively amend the electoral timetable. This second case followed an unsuccessful earlier attempt to seek a similar order in the same court in the case of National Freedom Party v Electoral Commission and Another (NFP No 1). In the case under discussion (NFP No 2), the second to seventh respondents were all registered political parties that indicated in their founding affidavit that they supported the cause of the NFP to be included in the 2016 municipal elections.
2016年8月5日，选举法院就民族自由党诉选举委员会及其他人案(NFP No . 2)作出判决，并驳回了民族自由党要求追溯修改选举时间表的申请。在第二起案件之前，在国家自由党诉选举委员会和另一个(NFP第1号)的案件中，在同一法院寻求类似命令的尝试失败。在正在讨论的案件中(NFP第2号)，第二到第七名被告都是注册政党，他们在其创始宣誓书中表示，他们支持将NFP纳入2016年市政选举的事业。
{"title":"The Application of the Doctrine of Res Judicata in Political Rights Cases: National Freedom Party v Electoral Commission and Others (2016)","authors":"Angelo Dube, Musavengana Machaya","doi":"10.4314/LDD.V20I1.10","DOIUrl":"https://doi.org/10.4314/LDD.V20I1.10","url":null,"abstract":"On 5 August 2016, the Electoral Court delivered its judgment in the case of National Freedom Party v The Electoral Commission and Others (NFP No 2) and dismissed an application by the National Freedom Party (NFP) to retrospectively amend the electoral timetable. This second case followed an unsuccessful earlier attempt to seek a similar order in the same court in the case of National Freedom Party v Electoral Commission and Another (NFP No 1). In the case under discussion (NFP No 2), the second to seventh respondents were all registered political parties that indicated in their founding affidavit that they supported the cause of the NFP to be included in the 2016 municipal elections.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133867429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Relations among some ethnic communities in Kenya have been characterised by deep animosity and suspicion, which heighten during election periods. This is so largely because individuals hailing from a few ethnic communities dominated the political structures and economic resources of the country, to the exclusion of other communities, both before and after Kenya became an independent country. The people in authority used the State apparatus to economically benefit themselves, their kin, their friends and regions. The exclusion was exacerbated as the country increasingly became centralised, contributing to intermittent conflicts, which often occur following general elections, the worst being the 2007 post-election violence. Kenya adopted a new Constitution in 2010 with a view, among other things, to curbing this decades long inter-ethnic animosity.
{"title":"The state of political inclusion of ethnic communities under Kenya’s devolved system","authors":"Ben Christopher Nyabira, Z. Ayele","doi":"10.4314/LDD.V20I1.7","DOIUrl":"https://doi.org/10.4314/LDD.V20I1.7","url":null,"abstract":"Relations among some ethnic communities in Kenya have been characterised by deep animosity and suspicion, which heighten during election periods. This is so largely because individuals hailing from a few ethnic communities dominated the political structures and economic resources of the country, to the exclusion of other communities, both before and after Kenya became an independent country. The people in authority used the State apparatus to economically benefit themselves, their kin, their friends and regions. The exclusion was exacerbated as the country increasingly became centralised, contributing to intermittent conflicts, which often occur following general elections, the worst being the 2007 post-election violence. Kenya adopted a new Constitution in 2010 with a view, among other things, to curbing this decades long inter-ethnic animosity.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127218479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The judgment of the Supreme Court of Appeal (SCA) in Humphreys v The State has provided a measure of clarity as to the application of the principles of dolus eventualis, particularly the volitional component thereof in the context of dangerous or irresponsible driving. The court held that references to “recklessness” on the part of the accused should be approached with caution so as not to conflate the test for dolus eventualis with that for aggravated (or “conscious”) negligence. In more general terms, the judgment also provides guidance as to what constitutes appropriate charges in response to dangerous or irresponsible driving that results in death or serious injury to innocent persons. It is submitted that, in general, the more aggressive prosecutorial strategy of the National Prosecuting Authority (NPA) towards irresponsible and reckless driving, under which such drivers are now more likely to be charged with murder and/or attempted murder, remains justified (and necessary) notwithstanding the outcome of the Humphreys case. However, through the use of a hypothetical example substantially similar to the Humphreys case, it is argued that, in future, the NPA’s prosecutorial efforts in such cases must be guided by the interpretation of the legal principles of dolus eventualis in Humphreys and by the specific facts at its disposal.
最高上诉法院(SCA)在Humphreys v . The State一案中的判决明确了最终赔偿原则的适用，特别是在危险或不负责任驾驶的情况下，其中的意志部分。法院认为，在提及被告的“鲁莽”时应谨慎处理，以免将最终过失的检验与加重(或“有意识的”)过失的检验混为一谈。从更一般的角度来说，该判决还就如何对造成无辜者死亡或严重伤害的危险或不负责任驾驶构成适当指控提供了指导。提交人认为，总的来说，尽管汉弗莱斯案的结果如何，国家检察机关对不负责任和鲁莽驾驶采取的更积极的起诉策略仍然是合理的(和必要的)，根据这种策略，这些司机现在更有可能被指控谋杀和/或谋杀未遂。然而，通过使用一个与Humphreys案实质上相似的假设例子，有人认为，在未来，NPA在这类案件中的起诉努力必须以对Humphreys案中“最终赔偿”的法律原则的解释和其掌握的具体事实为指导。
{"title":"“One moment of extreme irresponsibility”: notes and comments on Humphreys v S and the volitional component of dolus eventualis in the context of dangerous or irresponsible driving","authors":"V. D. Merwe, Johannes Frederik Hermanus","doi":"10.4314/LDD.V17I1.4","DOIUrl":"https://doi.org/10.4314/LDD.V17I1.4","url":null,"abstract":"The judgment of the Supreme Court of Appeal (SCA) in Humphreys v The State has provided a measure of clarity as to the application of the principles of dolus eventualis, particularly the volitional component thereof in the context of dangerous or irresponsible driving. The court held that references to “recklessness” on the part of the accused should be approached with caution so as not to conflate the test for dolus eventualis with that for aggravated (or “conscious”) negligence. In more general terms, the judgment also provides guidance as to what constitutes appropriate charges in response to dangerous or irresponsible driving that results in death or serious injury to innocent persons. It is submitted that, in general, the more aggressive prosecutorial strategy of the National Prosecuting Authority (NPA) towards irresponsible and reckless driving, under which such drivers are now more likely to be charged with murder and/or attempted murder, remains justified (and necessary) notwithstanding the outcome of the Humphreys case. However, through the use of a hypothetical example substantially similar to the Humphreys case, it is argued that, in future, the NPA’s prosecutorial efforts in such cases must be guided by the interpretation of the legal principles of dolus eventualis in Humphreys and by the specific facts at its disposal.","PeriodicalId":341103,"journal":{"name":"Law, Democracy and Development","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122025883","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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