Books by ALPHONCE ODHIAMBO
The division of roles between different players in the society is for good reason. There is alway... more The division of roles between different players in the society is for good reason. There is always something to be achieved by such arrangements. For instance, while there are professionals trained and tasked with the noble duties of teaching and management of schools, there are those who are trained and mandated with the equally noble duty of dispute resolution. Each time persons who are specifically mandated to do one thing decide to do something else, problems are bound to arise.
Papers by ALPHONCE ODHIAMBO
Over the past ten years, the citizens of the Republic of Kenya have sat back and watched as notio... more Over the past ten years, the citizens of the Republic of Kenya have sat back and watched as notions of a woman"s worth in dowry are propagated. They have watched as women are pressured into paying their own dowry to their own parents so as to enjoy the constitutional right to marry partners of their own choosing. They have watched as women are sold in open-air markets by their husbands who believe that, having paid their wives" dowry, they are part of their property. Kenyans have equally watched as the payment of dowry is presented as conferring the rights to use and abuse as well as to sell wives. Kenyans have watched as men who establish working families through cohabitation have their wives branded "borrowed wives" or "free wives" or "wives on loan". This paper argues that the payment of dowry has far-reaching consequences which require action to mitigate. The payment of dowry is a threat to women"s constitutional rights. In particular, it threatens the right to human dignity; freedom and security of the person; freedom from slavery and servitude; and, the right to personal autonomy. The paper recommends the total abolition of dowry payment through the criminalization of dowry as a means of guaranteeing women"s constitutional rights and fundamental freedoms.
Law, however binding, must not be seen as being cast on stone. The power to enact legal provision... more Law, however binding, must not be seen as being cast on stone. The power to enact legal provisions also comes with the power to make amendments to the very same laws. In light of new knowledge of the effects of old solutions to old problems, the law can be remolded to address its known and foreseen insufficiencies.
If one is interested in questions such as justice, rights, social policy and law reform, then, the suitability of legal measures in addressing societal concerns must be an area for relentless consideration and reconsideration. One of the areas that are ripe for consideration is the best interest principle with respect to orphaned children.
The national and international legal standard for the treatment of children is encapsulated in the ‘best interest principle. However, when children become orphaned, they suddenly but informally lose their rights. Everything that is done for them is packaged as a favor. Orphans find themselves in situations in which everything that is done for them is described as ‘charity’ or ‘philanthropy’. Riding on the presumption that everything offered to orphans is charity or philanthropy, the society feels justified in dropping the best interest principle and adopting standards that can only be described as being ‘good’, ‘okay’ or ‘better than’ rather than what is best for the orphaned child.
This paper argues that there is a need to engineer a measure that takes care of the welfare of the orphaned child in a manner that actually ensures the best interests of the child. It proposes the introduction of the ‘godparent system’ which is not only better than the other options but actually takes care of the best interests of orphans.
SSRN Electronic Journal
Childhood imposes the status of severe legal disability upon children thus incapacitating them fr... more Childhood imposes the status of severe legal disability upon children thus incapacitating them from making fundamental decisions including those aimed at saving their own lives. As per the Age of Majority Act, 1974, this legal disability stays in place until one attains eighteen years during which that legal incapacity ceases to exist. Alive to this legal position, the Children Act, 2022 created parental right to consent as a remedy for the said childhood legal incapacity. Unless parental legal rights have been terminated, the parents of a minor have the sole authority to consent to medical care for their child or children. With reference to surgery, routine male circumcision to be precise, this paper argues that, left unchecked, parental consent is and has proved to be an avenue for abuse of children. On account of parental consent, completely unnecessary routine male circumcision have been carried out during which children have lost their lives. This paper also argues that parental right to consent to surgery has limits and is subject to supervision. In particular, parental right to consent does not extend to routine underage male circumcision for the reasons that are outlined herein below.
This article investigates the concept of public interest in its application in commercially strat... more This article investigates the concept of public interest in its application in commercially strategic alliances between dominant sectors of the Kenyan economy. The relations between the media and the betting industries have been hugely financially rewarding. This has been achieved by simply avoiding legal processes which would call for the application of public interest consideration in processing approval for such alliances. The question is whether such relations have equally been rewarding on the public interest front.
Life in the Republic of Kenya is run more on presumptions than law. Actions and omissions are det... more Life in the Republic of Kenya is run more on presumptions than law. Actions and omissions are determined by presumptions rather than actual fact and law. The leading presumption in Kenya is that the rich and wealthy have more rights than the poor. It is on the basis of this presumption that there is a world of difference in the lives, rights, security and influence of the rich and the poor in Kenya. This article interrogates whether there is any truth to the presumption that wealth confers more rights upon a person in Kenya. Secondly, it addresses the question whether a comparison between one individual who is suffering the consequences arising from him or her sleeping on his on her rights and another individual who is enjoying the fruits of enforcement of his or her rights may be used as a determinant of inequality in Kenya. I make the argument that the disparities arising from the indolence of one individual and the vigilance of another individual are not a determinant of inequality in the Kenya.
The promulgation of the Constitution of Kenya, 2010 brought in a breath of fresh air having had t... more The promulgation of the Constitution of Kenya, 2010 brought in a breath of fresh air having had the troubles and the misfortune of being governed under the 1963 Constitution. The Constitution of Kenya, 2010 introduced certain legal guarantees meant to resolve the historic problems which Kenyans had painfully been dragged through. One of those legal guarantees is the right to housing It provides that every person has the right to accessible and adequate housing. Secondly, every person has inherent dignity and the right to have that dignity respected and protected. Thirdly, every person has the right to own property of any description in any part of Kenya. Finally, the Constitution provides that State shall not arbitrarily deprive a person of property or interest in any property or restrict the enjoyment of such property unless the such deprivation is sanctioned by law. The Republic of Kenya also has obligations under international law with regard to the above mentioned human rights. In spite of all these legal provisions and legal obligations, evictions and demolitions have been handled as political matters rather than a legal issue. In the conduct of evictions and demolitions, the right to human dignity; the right to housing; the right to own property; and, security of title to property have not only been threatened but have been denied, violated and infringed. This study will analyze the law as it is and suggest possible areas of improvement and reform with a view to ensuring the protection of constitutional rights and other legal entitlements of which Kenyans are guaranteed.
The beautifully curved or crafted narratives of ‘happily ever after’ and ‘knights in shining armo... more The beautifully curved or crafted narratives of ‘happily ever after’ and ‘knights in shining armor’ which purveys books and movies and which everyone getting into a relationship hopes to experience can only survive in certain natural or artificial circumstances. Historically, such pictures of successful human relations survived on patriarchy and traditional gender roles which no longer work. However, given the existing contemporary differences in opinion and ideologies on how the society should run and how men and women should relate in the society, successful relationships cannot survive on their own or on the obsolete historical context. In this paper, I make the argument that to achieve the ‘happily ever after’ status in a relationship, if you may, parties to the relationship must endeavor to find a middle ground between their opposing personal opinions and beliefs. In particular, this paper focuses on the extremities of traditional gender roles and contemporary concept of equality with a view to finding a working formula.
The last decade, between 2010 and 2020, has seen the introduction and growth of the use of phrase... more The last decade, between 2010 and 2020, has seen the introduction and growth of the use of phrases of generalization such as ‘all men’ and ‘all women’ in making conclusions. The use of the said phrases has been employed in protest against certain social ills and push for change. This article is not about whether the use of such phrases of generalization should or should not continue. Rather, it is an inquiry into whether such usage of generalization works for or against social change. In this article I submit that the usage of generalization is a serious threat to the growth human rights and achievement of social change. The threat that the users of phrases of generalization pose is just as serious as the threat human rights violators pose to the establishment of safer and just societies.
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Books by ALPHONCE ODHIAMBO
Papers by ALPHONCE ODHIAMBO
If one is interested in questions such as justice, rights, social policy and law reform, then, the suitability of legal measures in addressing societal concerns must be an area for relentless consideration and reconsideration. One of the areas that are ripe for consideration is the best interest principle with respect to orphaned children.
The national and international legal standard for the treatment of children is encapsulated in the ‘best interest principle. However, when children become orphaned, they suddenly but informally lose their rights. Everything that is done for them is packaged as a favor. Orphans find themselves in situations in which everything that is done for them is described as ‘charity’ or ‘philanthropy’. Riding on the presumption that everything offered to orphans is charity or philanthropy, the society feels justified in dropping the best interest principle and adopting standards that can only be described as being ‘good’, ‘okay’ or ‘better than’ rather than what is best for the orphaned child.
This paper argues that there is a need to engineer a measure that takes care of the welfare of the orphaned child in a manner that actually ensures the best interests of the child. It proposes the introduction of the ‘godparent system’ which is not only better than the other options but actually takes care of the best interests of orphans.
If one is interested in questions such as justice, rights, social policy and law reform, then, the suitability of legal measures in addressing societal concerns must be an area for relentless consideration and reconsideration. One of the areas that are ripe for consideration is the best interest principle with respect to orphaned children.
The national and international legal standard for the treatment of children is encapsulated in the ‘best interest principle. However, when children become orphaned, they suddenly but informally lose their rights. Everything that is done for them is packaged as a favor. Orphans find themselves in situations in which everything that is done for them is described as ‘charity’ or ‘philanthropy’. Riding on the presumption that everything offered to orphans is charity or philanthropy, the society feels justified in dropping the best interest principle and adopting standards that can only be described as being ‘good’, ‘okay’ or ‘better than’ rather than what is best for the orphaned child.
This paper argues that there is a need to engineer a measure that takes care of the welfare of the orphaned child in a manner that actually ensures the best interests of the child. It proposes the introduction of the ‘godparent system’ which is not only better than the other options but actually takes care of the best interests of orphans.