Under the 2010 Constitution, international law is deemed to be part of the Kenyan legal system, indicating a shift from the former dualist approach. Although international law is deemed to have direct application without the necessity of domestic legislation, there are problematic issues and ambiguities that have an implication for the extent to which international law may be applicable. It is necessary to examine these critical issues in order to provide a framework for a coherent understanding and application of international law in Kenya.
There is, for instance, the question of whether the relationship is of a monistic nature, with international law having a normative precedence over all conflicting national laws including the Constitution, or reflects a harmonising approach which subordinates international law to the Kenyan Constitution. Formal legislation is essential in order to avoid interpretative differences by courts and state agencies. The supremacy of international law in its relationship with Kenyan statutes is necessary in the light of the progressive nature of the international human rights regime. In addition, the involvement of parliament in the making of international agreements requires to be balanced against the flexibility that is necessary for the effective performance of international obligations by government agencies.
This article considers the legislative framework and the law reform proposals that have gone unimplemented in South African arbitration law. Recent developments in the jurisprudence are discussed and the implications of the cases are mapped out. International trends in the European Union are also noted. Specific mention is made of relevant law reforms in Swiss law, as these are particularly instructive on the inter-relationship of the compétence-compétence, waiver and res judicata doctrines.
The article first traces the development of the generally accepted rule that children have rights, and how the Children's Act embodies this notion, specifically in relation to parental responsibilities and rights and the best interests of the child. Secondly, the manner in which African customary law finds expression in the Children's Act is also explored. It is argued that the combination of historically Western and African customary law values in the Children's Act reflects a new approach to children's rights, which has the potential of transforming the interpretation and application of the law relating to children. In the final instance, the article investigates some of the practical realities of children in South Africa. In this regard, the article makes specific recommendations regarding the phenomena of child-headed households and street children.
One of the most pressing current international issues is the restructuring of the United Nations (UN). Since its inception with an initial membership of fifty-one states, the UN has expanded dramatically and developed into a complex and fragmented global institution with a current membership of 193 states. The changing realities since 1945 have had a significant impact on the functioning and structure of the UN and reform of the international institution is therefore increasingly proposed and debated. One of these changing realities is the (renewed) process of regional integration in various parts of the world. The objectives and structures of the UN and regional organisations often display certain similarities and regional organisations often act within areas that were previously the monopoly of specifically the UN. This overlap in authority may create uncertainty as to the exact relationship between the UN and regional alignments. This article evaluates to what extent the African Union (AU) has progressed in its aim of continental regionalism and examines the impact that regionalism may have on the proposed restructuring of the UN. In view of the growing importance of regionalism it is suggested that serious consideration be given to eventually restructuring the UN as an international organisation consisting of 'sovereign' regional organisations. States invested with the basic aspects of sovereignty will then enjoy representation at the regional level, as it is at this level where their interests can best be served.
This article considers a series of cases between Von Abo and the Government of the Republic of South Africa reported as follows: Von Abo v Government of the Republic of South Africa & Others (2009) 2 SA 526 (T); Von Abo v President of the Republic of South Africa (2009) 10 BCLR 1052 (CC); (2009) 5 SA 345 (CC); and Government of the Republic of South Africa and Others v Von Abo (2011) 5 SA 262 (SCA); (2011) 3 All SA 261 (SCA). These cases concerned the employment of the remedy of diplomatic protection, claimed as a right under the South African Constitution, by a South African citizen to protect his private commercial interest outside South Africa. The article observes that diplomatic protection, as of right, is a nonexistent or unsuitable remedy for an individual seeking to protect private interests in a foreign country. Other options may be useful and effective. However, the article further notes, given the exponential increase in recent years of South African-owned investments in foreign countries, particularly in other African states, that the South African government has a significant role to play in ensuring the safety and security of South African-owned investments abroad.
In the past the phrase 'access to justice' referred to access to courts, but since the 1970s it has acquired a broader meaning and is still evolving. Views on access to justice are closely linked to the socio-economic situation at a particular point in time. Our current world is complex and has given rise to matching complex needs. Huge social imbalances have been created and many groups of people have become marginalised and excluded from a fair determination of rights. Legal problems have thus acquired a social dimension, requiring the civil justice system to play an important role in realising social justice. Current access-to-justice concerns are aimed at promoting and achieving the social inclusion of those excluded from the justice system, and so the meaning of the phrase access to justice is extended to include access to mechanisms that facilitate social inclusion. Broad consensus on the basic guiding principles for such mechanisms has yet to emerge. Nevertheless, a new approach to access to justice has so far yielded many far-reaching procedural reforms in many countries, as well as many innovative measures (such as PLEI programmes, help centres, ombudsman institutions, special tribunals and funding schemes), giving reason for optimism that justice systems will be able to meet the needs of the most disadvantaged members of society.