The Nine  Dont’s of writing a legal research paper

1.       NOT PROVABLE

Do not pick a topic which, by its very nature, cannot be proven, or researched using normal standards of evidence.

For example: Avoid such topics as: ESP; the existence of God; mystical events; “Gods from Outer Space;” “alien abduction”; miracles of any kind; whether there is “life after death;” etc.

It’s best to avoid any kind of religious topic except, possibly, an historical one.

2.       STRONG FEELINGS OR BIAS

Avoid any topic which you feel so strongly about that you could not have an open mind about it.

For example: If you passionately hate Fidel Castro, or Newt Gingrich, do not write on them.

If you choose such a topic, you will not be setting out to discover the truth.

Instead, you will be setting out to find examples or evidence to support preconceived ideas you already hold.

But research is the attempt to discover the truth. So you will not be doing research.

However, if you are interested in a topic, and at the same time feel you could have an open mind about it, then that would be a good topic for you. You will be more interested and motivated to spend the long hours of research, and will think more creatively and better about your topic, if you are interested in it.

3.       STATISTICS

Do not pick a topic where you will have to rely upon complex statistical information which you cannot understand.

If you do, you will be choosing to “believe” the source of your statistics. Believing authorities is not research, and can never lead you to discovering the truth.

Exception: you can use statistics  the United Nations, provided that you know how to use them, and look for critiques of them. But avoid statistics from private research organizations or foundations.

4.       TECHNICAL

In general, do not pick any technical topics. Only those who have technical skills can do research in technical areas. If you believe you have such technical skills in some area, please consult with me first.

5.       LEGAL

Avoid legal topics — any topic which involves determining whether something is, or might be, “legal” or “illegal.”

Legal research is not research in the sense in which we are studying and using it here. Legal research is concerned with finding precedents in previous law cases decided by various courts. This is a specialized skill. It is not concerned with discovering the truth.

6.       MORAL

Avoid choosing topics in which your “research” would mainly be deciding whether something is “right” or “wrong,” “good” or “bad.”

Moral judgments cannot be proven true or false in the same way that other statements can be.

7.       CONTEMPORARY

Do not pick a topic which involves events that are so recent that it would be difficult or impossible to find other research on them.

One of the most important ways of learning research methods is to study good research done by experienced researchers on the same topic you are interested in. This won’t be possible to do in the case of a very recent topic. Therefore, you should avoid such topics.

9.       CAN’T GET AT THE EVIDENCE

Don’t pick a topic where you obviously can’t gain access to the evidence, or to the object to be studied.

 

 


REMEMBER THE “X” RULE:

In order to come to correct conclusions about X, you must study X directly

where X is any object of study.

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Torture, Extrajudicial Killings and the Constitution

KenyaThere have been numerous cases of torture and extra-judicial killings in Kenya in the recent past. This is notwithstanding the constitutional guarantee of right to life in provision against torture, inhuman or degrading to treatment.
Members of the police and armed forces regularly beat up, kill or maim protesters, criminal suspects and, in some cases, innocent persons. In Kenya, gunshots and clubs are still instruments of compliance/obeisance employed by the security forces. The police on a regular basis employ torture as a means of extracting confessional statements from suspects.
According to the UN Special Rapporteur on extrajudicial executions, Mr. Philip Alston, killings by police in Kenya are systematic, widespread and carefully planned. They are committed at will and with utter impunity.

Torture and extra-judicial killing
Torture, according to the UN General Assembly, constitutes an aggravated and deliberate form of cruel, inhuman and degrading treatment or punishment. To the European Commission on Human Rights, the word ‘torture’ is often used to describe inhuman treatment, which has a purpose such as the obtaining of information or confessions, or the infliction of punishment, and is generally an aggregate form of inhuman treatment.
Article 25 of the Kenyan Constitution 2010 provides that:
“……. no person shall be subjected to torture or inhuman or degrading treatment”.

‘Extra-judicial’ means happening out of court; out of the jurisdiction of the proper court. Thus, extra-judicial killing means killing not sanctioned by a court of competent jurisdiction in the process of criminal trial.
Doing so violates fundamental international and constitutional laws.

Article 3 of the Universal Declaration of Human Rights states: Everyone has the right to life, liberty and security of person.
Article 6 of the International Covenant on Civil and Political Rights states: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Common Article 3 of the four Geneva Conventions states: The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” are prohibited at all times under all circumstances with no exceptions.
The 2010 Constitution, in Article 26(1) guarantees the right to life in the following terms:
Every person has a right to life
No one should be deprived intentionally of his life, save in execution of a sentence of a court in respect of a criminal offence of which he has been found guilty.

The only permissible limitations on the right to life are contained in Article 26 (3) of the Constitution, which provides that a person shall not be regarded as having been deprived of his life, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law.
It must be noted that the general omnibus derogation and limitation clause in Article 26 of the Kenyan Constitution does not apply to the right to life. Thus, any killing not within the context of Article 26 above will be unlawful and illegal.
The pertinent question is whether the limitation clauses allow intentional killing in the circumstances enumerated in Article 26. It is respectfully submitted that the killing permitted under Article 26 should have the objective of achieving one of the specified aims and the killing is merely a consequence of using an absolutely necessary amount of force in doing so.
The European Commission on Human Rights, in construing a similar provision, ruled that if disproportionate force is used and death results, then the Convention is violated, even if death was unintentional. While the use of force may sometimes be necessary, conduct resulting in death, whether intentional, negligent or accidental, should always have to be justified.

The duty of the state is to secure life
Though the Kenyan Constitution made no express provision on this matter, it can be implied from the spirit and some other provisions of the Constitution, that there is a duty on the State to act to secure life. extra judicialFurthermore, though article 26 of the Constitution, which guarantees the right to life, appears to have merely imposed a negative obligation on the State not to take life, when that article is read together with Article 29, it will be clear that the State has a duty to act to save life. Article 29 enacts that the security and welfare of the people shall be an obligation of government.
The European Commission on Human Rights, while interpreting a provision under the European Convention maintained that right to life imposes obligations on states to take appropriate steps to safeguard life. This will, for instance, entail taking appropriate steps to promote security and to prevent murder and other crimes threatening life.
The United Nations Human Rights Committee has equally noted that the right to life includes a duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life.
In conclusion, failures in the criminal justice system, and in internal and external police accountability mechanisms, encourage the commission of unlawful killings by police. This can however be corrected by implementing the doctrine of the rule of law, which ensures that governmental power is exercised in accordance with pre-determined rules as opposed to the exercise of a arbitrary power.

Will a denial of broadcasting service to digitally non-compliant households constitute a violation of the constitutional right to receive information and ideas?

 

Digital broadcasting has emerged as a globally accepted standard for next-generation mass media. It presents a method of relaying radio and television signals with various advantages from analogue broadcasting. It enables a more efficient use of bandwidth and the bundling of multiple channels in one frequency. Moreover, digitally broadcast images, video and audio have a higher quality than their analogue counterparts. The transition from digital to signal broadcasting is arguably the most significant technological cross-over for television and is only closely rivaled, if not slightly surpassed, by the invention of colour television.

 

At the stroke of midnight at the end of 17th June 2015, all nations will cease all analogue broadcasts of radio and television signals and switch over to the transmission of digital-only signals with the exception of

digital migration
digital migration

some developing countries for which the transition period will end on 17 June 2020. On that date, all analogue television sets for which the owners will not have installed a digital signal converter will go black.

In Kenya however, the communications Commission of Kenya (CCK) have new self-imposed datelines. They will carry out the analogue switch-off exercise in 3 phases to wit; Nairobi on 13th December, 2013; Mombasa, Malindi, Nyeri, Meru, Kisumu, Webuye, Kisii, Nakuru and Eldoret on 30th March, 2014 and the rest of the country on 30th June, 2014.

Consumers of analogue television services and members of the public in general through Consumers Federation of Kenya (COFEK) have opposed the move by CCK to switch off analogue television frequency signals by 13th December 2013 or any other date before June 2014. They contend that this notice is too short and inappropriate considering that December is a festive season, immediately after which school re-opening calendar together with prevalent economic challenges facing Kenyans puts financial pressure on poor households not to forget the need for Kenyans to follow important national developments which include devolution and constitutional implementation processes, among others.

CCK’s decision, in the event that it is sustained, will lock out millions of Kenyans from following important national matters such as legislations, government policies, and matters of national interest, among others as envisaged under Article 35 of the Constitution of Kenya. While they claim , that so far 500,000 set boxes have been sold in Nairobi, there is no similar evidence and goodwill to demonstrate that the over 3,500,000 remaining television owners will purchase the compulsory and prescribed gadgets

The consumers and general public right to information will be severely infringed because current free-to-air channels, some paid for by the taxpayer, are being forced into pay-TV bundles vide a set-top box which are not free of cost. The specific case in which consumers of television services cannot access NTV, Citizen TV and KTN on the StarTimes platform is one such discrimination, against Article 27(4) of the Constitution of Kenya, which is being perpetuated with untold impunity as CCK maintain their loud silence. It should be a requirement that all set-top boxes/integrated digital TVs must be able to receive all non-encrypted free to air TV. In Denmark, the Ministry of Research and Communication has determined (Danish Ministry of Research, departmental order no. 709 of 25 June 1996) that “Digital decoders must be constructed in a way that allows non-encrypted digital TV signals to pass transparently through them.”

Further, there has been no sufficient public information, education and communication campaign to raise awareness on digital migration to allow consumers the freedom of choice as envisaged in Article 46 of the Constitution of Kenya 2010 and the Consumer Protection Act, 2012.

digital 2
The foregoing concerns are not the bitter pill of new technology that a society must take at a certain time in its development. Rather, once resolved, they will be the relish with which the consumer will find the transition to digital broadcasting more appetizing. The national digital broadcasting switchover programme will need to anticipate and resolve these concerns.

ICC’S NIGHTMARE: THE PROSPECT OF TRYING AN INCUMBENT HEAD OF STATE IN A FOREIGN COUNTRY. Part 2

THE IMMUNITY OF HEAD OF STATE AND ITS EXCLUSION FOR INTERNATIONAL CRIMES.

a) Sovereign immunities of Heads of State

We cannot even start a serious discussion concerning international criminal justice without first addressing the Head of State immunity and that of other high ranking officials. This is because international criminal courts ordinarily fasten individual criminal responsibility on those said to be most responsible for committing international crimes. This class of people happens to coincide also with those who are in control of state instruments and organization, and who enjoy trappings of power and special constitutional privileges. Sovereign immunity attaching to the State must however be distinguished from Head of State immunity though the latter derives from the former. In the times when monarchical forms of government existed, it was considered that the King enjoyed immunities similar to those conferred on the state because monarchs were identified with the state itself. This has changed however in modern times with the democratization of government and the diversification of the organs for governance, and the State now enjoys immunities that are distinct from those of Head of State. This distinction has lately been emphasized by the International Court of Justice in the case of Jurisdictional Immunities of the State- Germany and Italy when it said,

“The Court concludes that, under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case.”

Distinction must be made also between the most serious crimes of concern to the international community as a whole, and other international crimes. The former involve commission of mass criminality of a magnitude beyond what can possibly be committed without state involvement, connivance and collusion. Their peculiar characteristic is that they are state based crimes driven by responsible state officials standing in a position to pursue a violent agenda. International crimes on the other hand such as torture, terrorism, human and drug trafficking, may be committed by private actors although state officials may sometimes be involved in their commission. International criminal law has zeroed on four core crimes said to be the most serious crimes of international concern and these are crime of aggression, war crimes, genocide and crimes against humanity upon which no immunity can be invoked.

State officials enjoy two categories of immunities from prosecution, expressed in the Latin terms Rationae Personae and Rationae materiae. These immunities are enjoyed both under national and international law. Under domestic law, national constitutions determine the contents of immunities and privileges that may be enjoyed by a whole range of state officials including members of parliament, judges, state agencies etc. These include freedom from criminal and civil accountability arising out their decisions or actions performed while in office. In international law however such immunities arise from customary international law, which is the law recognised over a time in settled state practice together with opinio juris sive necessitatis i.e. practice considered by states to be of binding quality. Much of the customary international law has now been codified into international conventions or incorporated into domestic statutes. The 1648 Peace Treaty of Westphalia that ended the European Wars is generally regarded as the beginning of the concept of the modern state, principles of state sovereignty and territorial integrity. This form of government is what is reflected under Article 2 of the UN Charter. Therefore because all states are equal and sovereign, the Head of State of one sovereign state cannot be subjected to the jurisdiction of the courts of foreign states unless with his consent.

Rationae Personae immunities are personal immunities that attach to the person of the privileged individual while still holding office and exempt him from being subjected to any form of legal process whether criminal or civil including arrest, service of summonses or execution of a decree. This is the highest form of immunity enjoyed by state officials and it is absolute in nature covering all activities of the individual concerned whether for official or private acts, and whether arising prior to his appointment to office or during incumbency. The only limitation to this form of immunity is that it is exhausted once the person leaves office. The inviolability of the Head of State from the indignity of having to answer to judicial process of the host state is therefore deemed in international law to be crucially important, for without it intercourse between states may become impossible. A recent case where rationae personae immunities were upheld in a judicial proceeding was in the US case Tachiona v Mugabe. A group of Zimbabweans sued President Robert Mugabe, his Foreign Minister Stan Mudenge and the Zimbabwe ruling Party ZANU/PF for torture and deprivation of property in Zimbabwe. Service of summons both for themselves and the Party were served upon President Mugabe and Mr Mudenge while the two were attending a conference in New York. The US Government filed a suggestion of immunity from legal process at the District Court for Mugabe and Mudenge. The judge upheld the immunity of both Mugabe and Mudenge since they were head of State and foreign minister respectively of a sovereign state and struck out the suit against them. The District Court however maintained that it had jurisdiction over ZANU/PF and proceeded to enter default judgement against the Party and to assess damages. The US government appealed the decision. The Circuit Appeals Court affirmed the judgement of the District Court striking out the suit on the basis of the immunity from legal process of Mugabe and Mudenge, but went further to overturn the District Court’s judgement against ZANU/PF that service of summons on Mugabe and Mudenge as the representatives of the Party was proper service. The absoluteness of the principle was explained by the Appeals Court as follows:

“As discussed above, see Part II (A), supra, section 11(g) of the U.N. Convention on Privileges and Immunities extends to Mugabe and Mudenge the immunities that diplomats enjoy under the Vienna Convention. These include not only the immunity from legal process set forth in Article 31, but also the “inviolability” of the person: [emphasis mine].

“The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”.

The Government argues that the district court erred in holding that Article 29 of the Vienna Convention did not protect Mugabe and Mudenge from service of process as agents for ZANU-PF. We agree. Although the term “inviolable” is not defined in the Vienna Convention, we have described it as “advisedly categorical” and “strong.” 767 Third Ave. Assocs. v. Permanent Mission of Zaire, 988 F.2d 295, 298 (2d Cir.1993) (discussing inviolability of mission premises under Article 22 of the Vienna Convention). The text of Article 29 makes plain that a person entitled to diplomatic immunity may not be arrested or detained. The scope of inviolability, however, extends further; Article 29 also protects against “attack[s]” on the “person, freedom or dignity” of the diplomatic envoy. For example, courts have held that the inviolability principle precludes service of process on a diplomat as agent of a foreign government, see Hellenic Lines, Ltd. v. Moore, 345 F.2d 978, 979-81 (D.C.Cir.1965), and, as applied to missions, prevents a landlord from seeking to evict a diplomatic mission from its premises for non-payment”.

Rationae Materiae immunities or functional immunities on the other hand are more difficult to establish because they attach to what are called ‘official acts’ of the privileged individual. They do not come to an end even after the state official has ceased holding office. A whole range of officials enjoy functional immunities including minor officials so long as they were acting on behalf of the state and are thus exempted from criminal and civil actions. In this respect the acts of the official concerned are deemed to have been performed on behalf of the State and therefore are attributed to the state itself. The Appeals Chamber of ICTY in the Blaskic Judgement (Prosecutor v Thomir Blaskic) observed that state officials acting in their official capacity “are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called “functional immunity”. This is a well-established rule of customary international law going back to the eighteenth and nineteenth centuries , restated many times since”.

What then are the official acts for which an official can claim immunity as opposed to private acts for which he may be held accountable? Can a state authorize the commission of crimes, or more particularly international crimes? The answer to the question was given in the affirmative in the Pinochet (3) Case.Lord Goff of Chieverley expressed the principle as follows: “In my opinion, the principle which I have described cannot be circumvented in this way. I observe first that the meaning of the word ‘functions’ as used in this context is well established. The functions of, for example, a head of state are governmental functions as opposed to private acts; and the fact that a head of state does an act other than a private act, which is criminal does not deprive it of its governmental character. This is as true of a serious crime such as murder or torture as it is of a lesser crime”.

Lord Goff then proceeded to quote Lord Bingham of Cornhill C.J. who said as follows:

“a former head of state is clearly entitled to immunity in relation to criminal acts performed in the course of exercising public functions. One cannot therefore hold that any deviation from good democratic practice is outside the pale of immunity. If the former sovereign is immune from process in respect of some crimes where one does draw the line?”

As noted, opinion is divided as to whether a head of state also enjoys immunity from prosecution for international crimes. Surprisingly in The Case Concerning the Arrest Warrant of 11 April 2000 Democratic Republic of Congo v Belgium the International Court of Justice, which is the judicial organ of the United Nations, in a very guarded language held that as between states, heads of states could enjoy immunity from prosecution even for the most serious crimes. In that case a Belgian investigating magistrate issued an international warrant of arrest against the Foreign Minister of Congo Mr Yerondia Ndombasi for war crimes and for committing crimes against humanity. Congo filed an application at the ICJ complaining a violation of its sovereignty by Belgium. The Court upheld Congo’s application and in the course of its judgement made some important observations. It said,

“The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity. The Court has also examined the rules concerning the immunity or Criminal responsibility of persons having an officia1 capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable to the latter…. It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts”.

b. The Advent of crimes against international law

The manner in which international criminal law has treated Heads of States immunities may be examined in three phases (1) The Nuremberg phase i.e. the Second World War cases, (2) the Post Nuremberg Phase and (3) the current phase expressed in the Rome Statute.

(i) The Nuremberg Phase

In the judgement of October 1946 the Nuremberg Tribunal made a statement that has come to be regarded as the classic catch- phrase of international criminal law that, “Crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced.” While this statement is no doubt important, international criminal law has also not been able to create a clear distinction between the criminal responsibility of the ‘men’ who commit international crimes, and responsibility of states for committing international crimes. When a government adopts a criminal policy of terrorizing and exterminating sections of the population, criminal responsibility of the individual and that of the State becomes blurred and inextricably intertwined. The very horror of international crimes and the only justification there is for excluding international law immunities and special privileges from Heads of States and states officials is that the perpetrator perverted legitimate instruments of state from their purpose of maintaining law and order and turned them into instruments of creating terror and committing mass crimes. These individuals used state machinery to accomplish heinous criminal purposes and yet want to invoke their official position to escape the consequences of their wicked deeds. Unfortunately this is the history of international criminal law as we will discover in this comment. The Nuremberg Tribunal American Chief Prosecutor Justice Robert Jackson aptly summarised the legal reasoning behind the exclusion provisions in the Nuremberg Charter when he said,

“The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defence based on either of these doctrines can be entertained”.

The tribunal agreed. “The authors of these acts” the tribunal said “cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings”.

Adolf Hitler and the Reich government committed apocalyptic crimes that were so evil in form and so shocking, that the whole world was shaken into a realization that a new genre of evil had attacked the human race even threatening it with extinction. He was able to commit such monumental crimes by seizing the Germany Government which he then perverted into an instrument for commission of unspeakable crimes. It is beyond belief that one human being could be so evil as to ascribe to himself the authority that Hitler did, even to the extent of denying his fellow human beings the bare right to exist. Hitler and the Nazi government created the Holocaust that decimated some 6 million Jews, set up concentration and labour camps where opponents were starved to death and the gas chambers where women, children and the weak members of the society were suffocated before being incinerated. A Prosecutor in Nuremberg Trials Benjamin Ferencz described the horrifying Nazi operation as follows:-

“Hitler began the German march of conquest over Europe. Behind the Blitzkrieg of the German tanks came the Einsatzgruppen to murder without pity or remorse every Jewish man, woman or child, every gypsy or perceived adversary they could catch. Prisoners of war were executed or starved to death, millions of civilians were forced into slave labour, while those unable to work were simply annihilated in gas chambers and concentration camps. Japanese troops committed similar crimes in areas they occupied. Repeated Allied warnings that those responsible for atrocities would be held to account went unheeded. The British proposed that, when the war was won, prominent Nazis be taken out and simply executed. It could have come as a relief but not as a surprise when defeated German and Japanese leaders found themselves in the dock to answer for their deeds in a court of law”.

The 1945 Charter of the International Military Tribunal for the Prosecution and Punishment of Major War Criminals was really the first international legislative instrument that addressed immunities from prosecution for heads of States in respect of the conducts enumerated in the Charter. Article 7 of the Charter provided that

‘the official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment’.

The same provision was repeated unchanged as Article 2(4) (b) of the Control Council no 10 for the Punishment of Persons Guilty of War Crimes, Crimes against Peace and Against Humanity and adopted with some modifications as Article 6 of The Tokyo Charter of the International Military Tribunal. It was clear that what occupied the minds of the prosecutors during the Nuremberg years was the extreme criminalization of the entire machinery of Government by the Nazis and their allies. The Prosecutors indicted Nazi government organs for being criminal organizations and produced indictments criminalizing the entire Hitler’s Cabinet, the secret Police, the Army command and several other government departments that were used to pursue Hitler’s criminal policy. Though the Nuremberg tribunal judges refused to criminalize the Hitler Cabinet, the dissenting judgement of the Soviet Union Judge harshly chided his colleagues for refusing to declare the Hitler government a criminal organization. The dissenting judgement captures the thinking of this period in the following words:

“The Tribunal considers it proven that the Hitlerites have committed innumerable and monstrous crimes. The Tribunal also considers it proven that these crimes were as a rule committed intentionally and on an organized scale, according to previously prepared plans and directives (“Plan Barbarossa”, “Night and Fog”, “Bullet”, etc.).The Tribunal has declared criminal several of the Nazi mass organizations founded for the realization and putting into practice the plans of the Hitler Government. In view of this it appears particularly untenable and rationally incorrect to refuse to declare the Reich Cabinet the directing organ of the State with a direct and active role in the working out of the criminal enterprises, a criminal organization. The members of this directing staff had great power, each headed an appropriate Government agency, each participated in preparing and realizing the Nazi Programme”.

The Nuremberg phase however suffers one serious setback expressed by Professor Kelsen as ‘victor’s justice’. The tribunals were set up by the victorious allied powers who after occupying Germany and Japan decided on the law to be applied with the single aim of punishing their vanquished foes and appointed judges and prosecutors to apply the system they had created.

(ii) The Post Nuremberg

The Post Nuremberg phase has been marked by the UN Security Council directly, though controversially, establishing or assisting the establishment of a series of international criminal tribunals along the very lines of the post-World War 11 courts. After the Nuremberg Trials the UN General Assembly directed the International Law Commission to formulate principles of international law distilled from the Nuremberg Charter and the IMT judgement and also draw a Draft Code of offences to be used in creating an international criminal court of the future. The international criminal court was not created immediately as expected due to the Cold War events but for our purpose Principle III of the Nuremberg Principles provided as follows;

“The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law”

Article 3 of the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind contained a similar provision. The same provisions with the same standard wording were reproduced as Article 7(2) of the 1993 Statute of the International Tribunal of the Former Yugoslavia,as Article 6(2) of the 1994 Statute of the International Tribunal for Rwanda and as Article 6(2) of the 2002 Statute of the Special Court for Sierra Leone.

There is a paucity of judicial opinions, less than one would in fact expect, arising from the Ad Hoc International Criminal Tribunals concerning the Head of State immunity. In the first Tribunal case relating to a former Head of State, Prosecutor v Jean Kambanda the ICTR did not even mention the head of state immunity in relation to the accused, but In the Milosevic case the ICTY dealt superficially with the issue when the Tribunal’s competence over a former head of state was challenged by the Amici curiae.The tribunals’ decisions have however one common characteristic: that is their insistence that they enjoyed a special relationship with the UN Security Council, raising the question then whether the ad hoc tribunal’s power arose from customary international law or from the special enforcement power of the UN Security Council. In the Blaskic Decision the Appeals Chamber did point out that the ICTY as a UN subsidiary body created under Chapter VII of the UN Charter stood in a vertical relationship vis-à-vis states and could issue orders binding on states. The Appeals Chamber however rejected the notion that international courts in this respect enjoyed unlimited power over State Officials and declined to issue orders citing general principles of international law that affords protection to State Sovereignty. All the same the Tribunal observed that there was an exception in this respect when it comes to serious crimes of concern to the international community as a whole. The Chamber observed

“The few exceptions relate to one particular consequence of the rule. These exceptions arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity”.

In the Krstic Decision the ICTY unconvincingly sought to depart from the Blaskic decision despite a strong dissenting opinion from Judge Shahabuddeen. As we have noted already the ICJ in the Arrest Warrant Case did not entirely agree that state officials cannot invoke immunity before national jurisdictions in respect of the most serious international crimes. The ICJ noted obiter dictum that an incumbent or former minister of Foreign Affairs enjoys procedural immunities before national courts but “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”So the question will arise when they have that jurisdiction and when they do not possess it. An important decision on Head of State immunity before international courts was delivered by the Special Court of Sierra Leone in the Charles Taylor Case. It is important however to remember that Taylor had already lost the status of Head of State when the decision was being delivered. The Special Court in its decision had to contend with the defence assertion that it was a mere domestic court of Sierra Leone and so the Court’s mind was heavily pre-occupied with having to defend its status of being an international criminal Court established by the UN Security Council.

(iii) Article 27 of the Rome Statute

The current position concerning head of state immunities is expressed in the Rome Statute establishing the International Criminal Court. Article 27 of the Statute has turned to be the most problematic provision relating to the Court’s jurisdiction and one that is about to bring the institution down to its knees. The Article is more elaborately structured than similar provisions contained under the IMT Charter, the Nuremberg Principles or the Statutes of the Ad Hoc Tribunals. It is framed in two paragraphs, the first paragraph dealing with official capacities of Heads of States, or Government, members of government or Parliament, elected representatives or government. The structure of the paragraph leaves no doubt that it is the Rationae Materiae immunities of state officials that are being excluded by this part. Paragraph 27(2) is more difficult because it deals with jurisdictional immunities Rationae Personae. This paragraph stipulates that personal immunities cannot bar the ICC from exercising jurisdiction. As the ICC seeks to assert its authority as a supranational Court it is faced with insurmountable hurdles arising from its application of Article 27 provisions. Here we make the following observations:

1.There is an innate weakness in the ICC structure because of its being delinked from the United Nations system. The ICC cannot therefore move with the same confidence and assertiveness over states and governments as the ad hoc Tribunals which could always fall back to Chapter VII of the UN Charter as a subsidiary organ of the Security Council bestowed with the special function for maintenance of peace and security. The Appeals Chamber of the ICTY in the Decision on the Defence Motion on Interlocutory Appeal Jurisdiction emphasized the basis for the establishment of the Tribunal as follows,

“The Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia”.

As a treaty based Court the ICC is disadvantaged in this respect and cannot resort to the authority of UN Charter except where a referral has been made by Security Council under Article 13(b) of the Rome Statute as in the case of Darfur.

1. The ICC suffers an image problem because its claim to universality is seriously dented by the absence of the major world powers such as USA, China, Russia, India and Pakistan from the slate of state parties. That means that the ICC has to tread wearily because over half of the world population that reside in these states are not subject to the Court’s jurisdiction.The ad hoc Tribunals could always surmount this hurdle by arguing that as a creation of the UN Security Council it had the support of the entire membership the UN. In its decision of 12th December 2011 Prosecutor vs. Omar Hassan Ahmad al Bashir[xxxix] the Pre-trial Chamber 1 alluded to the fact that because 120 states had ratified the Statute and that even non states parties had twice approved prosecution of other countries Heads of States therefore it could deduce a general practice having emerged of prosecuting Heads of States before international courts. What the Pre-Trial Chamber failed to observe was that these non-states parties are actually the major powers that dominate world politics militarily and economically and as such are driven by self-interest[xl]. Nowhere else has the application of naked power over international law been so openly displayed as in the attitude adopted by major powers towards the ICC. The US for instance not only withdrew its signature from the Rome Statute, but even publicly campaigned against the Court by preparing Article 98(2) agreements and passing laws threatening weak states with sanctions if they did not sign them. Despite its long time disagreement with the ICC, the United States determinedly attends all meetings of the Assembly of States Parties ostensibly to offer support for the ICC but in reality to make sure that no decisions are passed that have an adverse effect on US interests[xli].It is astounding that the Pre-Trial Chamber could draw a favourable inference from such lukewarm support. Major Powers may render support to the ICC when the Court is targeting weak states and when their own leaders are not the focus of investigations, but will react quite violently if their heads of states are threatened with prosecution.

3. Article 27 and article 98 are directly controversial and contradictory. It is evident that Article 98 is critical to curbing and limiting the ICC’s interference over states sovereign rights, immunities of state officials and from upsetting international order. The ICC admitted in the Al Bashir case( just quoted) that there exists a tension between these two articles of the Rome Statute and yet proceeded to cite Article 119(1) as the basis for decision given by the Pre-trial Chamber to define its own judicial functions. The reliance placed on Article 119(1) itself is controversial and one would have expected the Court to identify the nature of the dispute as one concerning the obligations of states towards each other and as such Article 119(2) would be more appropriate in addressing the issue at hand by seeking a determination to be made either by the Assembly of States Parties or the International Court of Justice. Article 98 may be contrasted with Article 27. Whereas Article 98 appears at the co-operation structure of the Statute under the heading “Co-operation With Respect To Waiver Of Immunity And Consent To Surrender” Article 27 is placed in Part 3 under the heading GENERAL PRINCIPLES OF CRIMINAL LAW. General principles have a historical significance in that they are designed to safeguard the fair trial rights of an accused person. Professor Otto Trifterer,a foremost authority in international criminal law, observes,

“Article 98 seems at first sight as contradictory and inconsistent with article 27. But article 98 does not limit the criminal responsibility under substantive law. It deals with the situations where the exercise of the Court’s jurisdiction may be blocked as it is in other cases where the suspect is not available before the Court. The ratio behind Article 98 is that states should not be obliged to break their international obligations by surrendering suspects to the Court, even if this leads to impunity”

Professor Triffterer also observes also that Article 25(4) excludes questions of state responsibility from the ICC jurisdiction. He noted that

“The Rome Statute does not deal with any form of state responsibility for commission of crimes. But it clearly expresses that the individual criminal responsibility established by the Statute shall not affect the responsibility of states under international law. Since there is no state responsibility under the Statute it can only mean responsibility of states outside the Statute”

Any State that is faced with the prospect of arresting a Head of State or any other official will have to first determine whether by doing so that state would be in breach of international law relating to immunities which is what the Republic of Malawi tried to tell the Court. The immensity of the problem is well illustrated by the standoff between the AU and the ICC over President Al Bashir of Sudan and the international discussion over the subject .The AU’s interpretation of Article 98 seems to be similar to that of Professor Triffterer, and the AU accuses the ICC of changing customary international law. An excerpt of the AU Commission statement is worth reproducing here as it summarises the dilemma posed by the two articles follows,

“The AU Commission wishes to point out that Article 27(2) of the Statute provides that “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”. However, this Article 27 appears under the part of the Statute setting out ‘general principles of criminal law’ and applies only in the relationship between the Court and the suspect. In the relationship between the Court and states, article 98(1) applies. This Article provides: “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”. As a general matter, the immunities provided for by international law apply not only to proceedings in foreign domestic courts but also to international tribunals: states cannot contract out of their international legal obligations vis-à-vis third states by establishing an international tribunal. Indeed, contrary to the assertion of the ICC Pre-Trial Chamber I, article 98(1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute. This is because immunities of State officials are rights of the State concerned and a treaty only binds parties to the treaty. A treaty may not deprive non-party States of rights which they ordinarily possess. In this regard, it is to be recalled that the immunity accorded to senior serving officials rationae personae, from foreign domestic criminal jurisdiction (and from arrest) is absolute and applies even when the official is accused of committing an international crime”.

A disagreement of this magnitude between the ICC and states parties cannot be healthy for the Court’s functioning. Professor Jan Klabbers has pointed that the legal relationship between international organizations and its member states can be complicated and may lead to uncertainty in the law relating to international organizations. The African Heads of States have requested its Commission to seek an advisory opinion of the International Court of Justice which should be sorted out with utmost urgency.

This article was  originally written months before the Kenyan general elections on March 4 2013 by Boniface Njiru and it is available at http://www.kenyalaw.org/klr/index.php?id=168 I

ICC’S NIGHTMARE: THE PROSPECT OF TRYING AN INCUMBENT HEAD OF STATE IN A FOREIGN COUNTRY. Part 1

How Far Can The ICC Stretch Article 27 Of The Rome Statute?

Article 27 of the Rome Statute has turned out to be the most problematic provision for the ICC. This is because the rule for exclusion of immunities for Heads of State and other high state officials as originally formulated in the Nuremberg Charter and Tokyo Proclamation arose out of the horrifying experiences during the First and Second World Wars situations. State officials who had subverted instruments of government from their legitimate purpose and turned them into instruments of terror and for committing heinous crimes were pursued across the country by victorious armies, captured and then prosecuted in hastily contrived courts. The same may be said concerning the UN established tribunals, the ICTY and ICTR. The rule however has taken a revolution under the Rome Statute and heads of state and officials of otherwise stable states and legitimate governments may now be summoned to The Hague to answer charges for committing ICC crimes. This seriously threatens State sovereignty hitherto guaranteed under UN Charter. But is there a limit to the extent the ICC and other international criminal tribunals can exclude the traditional immunities attaching to heads of states and other high ranking officials, even for the most serious crimes?
1. INTRODUCTION
A crisis could be looming at the International Criminal Court concerning the Kenyan situation. In the next few months Kenyans will go into a General Election where they will elect a new Head of State . Among the contenders for the office of the President will be two ICC indictees, Uhuru Muigai Kenyatta and William Samoei Ruto . The prospect of having a Head of State with an appointment to keep with The Hague is no longer an idle thought, but is a serious possibility that is already causing jitters around some circles. The ICC has so far studiously remained aloof from the whole debate, refusing to interfere with Kenya’s democratic process and leaving it all for Kenyans to decide for themselves. But the matter is certainly disturbing given the number of high level international visitors to Kenya who feel constrained to offer the Kenyan voter some unsolicited advice on how to cast their vote.
The focus of this article is on article 27 of the Rome Statute which excludes immunities and privileges ordinarily enjoyed by heads of state and other government officials under international law, if they are indicted before the ICC. The historical origin of the exclusion clauses contained in article 27 is here examined and the question posed is whether the ICC can properly exercise criminal jurisdiction over an incumbent Head of State democratically elected in a free and fair election and then proceed to put him on trial in a foreign country over conducts that were not committed while he was Head of State. Is there a limit to the jurisdiction that international courts may exercise over incumbent Heads of States and other government officials or do they hold an unlimited jurisdiction in this respect? Sovereign immunity is a fundamental principle of international law and is an essential tool in international intercourse between states and for maintenance of peace . It is suggested in this paper that by putting to trial a head of state of a democratic state, the ICC would be exercising an exorbitant jurisdiction. In criminal law a court exercises an exorbitant jurisdiction over an accused person when though valid rules are applied according to the court’s own procedure, the assertion of jurisdiction is nevertheless unreasonable, unfair and excessive . It is a jurisdiction often exercised by courts of powerful states with a political goal in mind. Such a jurisdiction would obviously be inappropriate for an international criminal court. The ICC was created by states through a self-contained multilateral treaty of the category known as law making or regime creating treaties which also settled the basis of the Court’s jurisdiction . Of course the ICC can simply stick to the black letter of the law and just assert its jurisdiction, but by doing so it will have to ignore a number of important things, one being the diplomatic embarrassment the trial of a sitting president is likely to cause the Governments of Netherlands and Kenya. The state of Netherlands currently hosts the International Criminal Court at The Hague. The ICC will also have to ignore the negative resulting impact the trial may occasion on stifling the democratic aspirations of Kenyans. Kenya of today is by all standards not the same that it was some five years back when the events under consideration by the ICC took place. Since that time Kenyans have accomplished the great feat of adopting a new constitution through a national referendum that was conducted in the year 2010, and have taken other impressive strides towards giving Kenya a brand new face of a democratic State. New institutions of governance have sprung up to enhance our democratic gains and there is a reinvigorated judiciary that is credibly delivering quality judgements that meet international standards. Free expression has been spurred up everywhere and public debate on important public issues is common; and then there are impressive development projects that have given Kenya a facelift and are there for everyone to witness.
In this comment we opine that the jurisdiction that the international courts exercise and one which allows them to set aside sovereign immunities for heads of states and other state officials was not created with the aim of upsetting the international rules that encourage states to intercourse, but arose out of the horrifying experiences of the First and Second World Wars situations. State officials in Hitler’s government subverted legitimate instruments of government and turned them into instruments for committing heinous crimes. State machinery and apparatus were so extensively debased by the Nazi state officials that the entire government became one criminal enterprise engineered towards committing unspeakable acts of cruelty. It was certainly incumbent on the international community to take appropriate steps to confront this genre of evil through adoption of freshly improvised criminal law tools. For state officials to use institutions of government for a criminal purpose is totally unacceptable, but then for them to shield themselves from criminal accountability by invoking the fiction of state sovereignty and official immunity from prosecution for their despicable conducts, is simply outrageous. It is remarkable that the architects of so much evil were never brought to justice to account for their abhorrent crimes. Hitler and Mussolini just vanished in a cloud of rumours while Emperor Hirohito somehow escaped justice amidst inexplicable excuses by the Allies. About 25 years previously Kaiser William of Germany another war criminal of the First World War was allowed to escape justice in a similar fashion when Netherlands refused to surrender him.

This article was originally written months before the Kenyan general elections on March 4 2013 by Boniface Njiru* and it is available at http://www.kenyalaw.org/klr/index.php?id=168
I have divided the article into three parts which will be published separately for easier reading on this blog.

*LLB (University of Nairobi), LLM International and European Law (University of Amsterdam), Diploma in International Criminal Law (European University Institute, Florence). The author is an Advocate of the High Court of Kenya and a Lecturer at the Presbyterian University of East Africa. He is first Kenyan lawyer to be placed on the List of Counsel of the International Criminal Court.

Sonko, Waititu barred from poll

sonkoThe office of the Ombudsman has declared Makadara MP Gideon Mbuvi alias Sonko and his Embakasi counterpart Ferdinand Waititu unfit to vie for any elective office.

In the recommendation made to the Independent Electoral and Boundaries Commission,the Commission of Administrative Justice chairman Omollo Otiende on Monday 17th December, recommended the two legislators be barred from contesting for any post.

The commission has also received complaints against Juja Member of Parliament William Kabogo regarding the death of university student Mercy Keino, but said it could not comment on the matter given there is an ongoing inquest.

More to follow…

The Internet and The Constitution: Press Freedom

In the new Constitution freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or is discriminatory.[1]

Furthermore, the state shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium.[2]Consequently, nobody is subject to penalty for any opinion or view or the content of any broadcast, publication or dissemination.[3]Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that  are necessary to regulate the airwaves and other forms of signal distribution andare independent of control by government, political interests or commercial interests.[4]

The previous constitution did not bear any express reference to the ‘press’ or ‘the media’. However, even in the absence of an express reference to the term ‘media’ or ‘press’, section 79 of the previous Constitution guaranteed that “no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons).

In this technology saturated world , one cannot assume matters relating to the Internet and since the constitutions describe  the degree and extent  of power which human beings should exercise  over each other in the process of governance, it is tantamount that there are clear provisions on the constitution regarding the same . Further there should legislations to re-enforce the provisions in the constitution


[1] Article 34 (1) of the Kenyan Constitution 2010.

[2] Article 34 (2) of the Kenya Constitution 2010.

[3] Article 34 (2) (b) of the Kenya Constitution 2010.

[4] Article 34 (3) of the Kenya Constitution 2010.

The Internet and The Consitution:Consumer Rights

In the emerging digital economy where technology is rapidly taking the place of personal interactions in the supply of goods and services, the consumer has become both more empowered and more vulnerable. Strong consumer protection regimes are an imperative for an Internet-driven globalized market.

The repealed Constitution did not make any provisions declaring the rights of consumers. Consumer protection therefore remained the subject of statutory enactments/Acts of Parliament. The Kenya Information and Communications Act, 1998 and its Kenya Communications Regulations 2001 made various provisions for the protection of consumers of ICT services.

However under the current Constitution,in section 47 all Consumers    have the right-

 

  •  to goods and services of reasonable quality;
  • to the information necessary for them to gain full benefit from goods and services;
  • to the protection of their health, safety and economic interests; and
  • to be compensated for loss or injury arising from defects in goods or services.

Closely linked with consumer rights is the right to fair administrative action. A modern trend in many administrative offices has been the adoption of service charters that include an open door policy where members of the public can present their grievances. However, this is a practice that depends on the goodwill of the officeholder as it is not anchored in law. Even while in the communications sector the Regulator, Communications Commission of Kenya (CCK) has been generally fair in responding to consumer complaints, the law will now compel them to also be expeditious, efficient, lawful, reasonable as well as procedurally fair.

Consequently, Consumer Protection Bill, 2011 is to be enacted to provide for the protection of the consumer, prohibit unfair trade practices in consumer transactions,to promote a fair, accessible and  sustainable marketplace for consumer products and services and for that purpose to establish national norms and standards relating to consumer protection, to provide for improved standards of consumer information, to promote responsible consumer behavior, to promote a consistent legislative and enforcement framework relating to consumer transactions and agreements, to make consequential amendments to various other Acts; and to provide for matters connected with and incidental thereto.

The Internet and The Constitution:Right of Access to Public Information

Information is the raw material for the emerging knowledge economy. Public information, in particular, is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law. It is therefore important that organisations that have the right to publish public information and the government bodies that create or control that information avail it to the public in a form that is accurate, timely and accessible.

Under the new Constitution every citizen is guaranteed the right to information held by the State or by another person that is required for the exercise or protection of any right or fundamental freedom. The right to correction or deletion of untrue or misleading information is also assured.[1] Finally, the provision to the public of timely and accurate information is included in Article 232’s articulation of the values and principles that should guide public institutions in fulfilling their service to the public.[2] Kenyans now have free online access to the historical and current records of the debates of the Kenya National Assembly and previous parliaments or legislatures dating as far as 1960 and coming forward to 2011. This comes close on the heels of digitizing over 100 years of the Kenya Gazette

Though the constitutionally guaranteed freedom of expression includes the right to “receive ideas and information without interference”[3] the previous Constitution did not create any public right to information held by the state.The transparency of international, national and local administrations is a basis for their legitimacy and public trust.


[1] Section 35 (1) provides that  every citizen has the right to access-

a. information held by the State; and

b. Information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

(3) The State shall publish and publicize any important information affecting the nation.

[2] Section 232 (1) The values and principles of public service include:

(f) transparency and provision to the public of timely, accurate information.

[3] Section 79 of the now repealed Constitution of Kenya.