Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Const... more Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Constitutions in Africa and across the globe. It brought with it sweeping changes in so far as rights and fundamental freedoms in the Bill of Rights are concerned. For the first time in post-independence Kenya, economic and social rights have been introduced into Kenya’s Bill of Rights under Chapter Four of the Constitution. Amongst these rights is the right of every person to the highest attainable standard of health which includes the right to healthcare services and the right to reproductive healthcare. This right also includes the right of every person to emergency medical treatment. It is this last limb of this right that is forming the subject matter of this paper. Further, the Constitution guarantees equality and freedom from discrimination, and the full enjoyment of all rights and fundamental freedoms. The right to equality encompasses within itself the right of a poor patient to quality healthcare regardless of their ability to pay. Most importantly also, the scope of the Bill of Rights has also been widened as the Constitution now stipulates that most of the rights provided for in the Bill of Rights bind private individuals and corporations, as well as the state. Despite these constitutional guarantees though, the Kenyan media has been replete with reports of patients dying because they have been denied emergency medical treatment on account of inability to pay hospital charges. The question then becomes the extent to which this constitutionally guaranteed right is available for beneficiaries of rights under the Constitution.
In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domes... more In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to 'general rules of international law' as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.
The new Kenyan Constitution gives a very critical treatment to gender. It seeks to repudiate the ... more The new Kenyan Constitution gives a very critical treatment to gender. It seeks to repudiate the historical exclusion of women from the mainstream society. It strikes at the socio-legal barriers that Kenyan women have faced over history. Compared with the old constitutional order, the new legal framework not only creates space for women to maneuver their way in the private and public sphere on an equal footing with men, but also institutionalizes direct gender-specific measures that seek to correct the consequences of women’s historical exclusion from the society. Such measures include affirmative action. Through affirmative action, the new constitution seeks to elevate women to a pedestal that has hitherto been the preserve of men. In this paper, we trace the legal position of women throughout Kenya’s history. We argue that in the pre-colonial and colonial period women had a more or less diminished legal status. This situation did not change much after independence and throughout the subsequent regimes women’s legal status did not improve. The law discriminated against them either directly or in its effect. While multi-partys brought some gains, these were not significant enough to break off the legal and social chains that beset women in Kenya. The new constitution is a culmination of the incremental steps taken by the country to level the socio-legal terrain in favor of women. It provides the same opportunities for men and women. At the same time it seeks to rectify the imbalances that women have suffered throughout years of historical exclusion. The new constitution represents a significant improvement in women’s status in Kenya in all spheres of life. We discuss the opportunities and suggest that if women are to make a wholesome contribution to the Kenyan society they must take advantage of the framework in the new constitutional dispensation.
Health Act 2017, right to health, health law, article 43 Constitution, highest attainable standar... more Health Act 2017, right to health, health law, article 43 Constitution, highest attainable standard to health, bill of rights, Kenya health law, Kenya Health Professions Oversight Authority, Kenya Health Intergovernmental Consultative Forum, Kenya Health Human Resource Advisory Council, amendment of Health Act
International Journal of Clinical Legal Education, 2014
The Advocates Act Cap 16 and The Advocate (Admission) Regulations made thereunder 5 Regulation 3 ... more The Advocates Act Cap 16 and The Advocate (Admission) Regulations made thereunder 5 Regulation 3 of the Advocate (Admission) Regulations requires students to undertake a course of legal education at an institution established for the purpose e.g. the current institution is the Kenya School of Law where students learn practical courses. 6 At the faculty this occurs after the second year of study and takes a period of about 6 weeks.
In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domes... more In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to 'general rules of international law' as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.
Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Const... more Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Constitutions in Africa and across the globe. It brought with it sweeping changes in so far as rights and fundamental freedoms in the Bill of Rights are concerned. For the first time in post-independence Kenya, economic and social rights have been introduced into Kenya’s Bill of Rights under Chapter Four of the Constitution. Amongst these rights is the right of every person to the highest attainable standard of health which includes the right to healthcare services and the right to reproductive healthcare. This right also includes the right of every person to emergency medical treatment. It is this last limb of this right that is forming the subject matter of this paper. Further, the Constitution guarantees equality and freedom from discrimination, and the full enjoyment of all rights and fundamental freedoms. The right to equality encompasses within itself the right of a poor patient to quality healthcare regardless of their ability to pay. Most importantly also, the scope of the Bill of Rights has also been widened as the Constitution now stipulates that most of the rights provided for in the Bill of Rights bind private individuals and corporations, as well as the state. Despite these constitutional guarantees though, the Kenyan media has been replete with reports of patients dying because they have been denied emergency medical treatment on account of inability to pay hospital charges. The question then becomes the extent to which this constitutionally guaranteed right is available for beneficiaries of rights under the Constitution.
In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domes... more In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to ‘general rules of international law’ as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.
Health Act 2017, right to health, health law, article 43 Constitution, highest attainable standar... more Health Act 2017, right to health, health law, article 43 Constitution, highest attainable standard to health, bill of rights, Kenya health law, Kenya Health Professions Oversight Authority, Kenya Health Intergovernmental Consultative Forum, Kenya Health Human Resource Advisory Council, amendment of Health Act
Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Const... more Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Constitutions in Africa and across the globe. It brought with it sweeping changes in so far as rights and fundamental freedoms in the Bill of Rights are concerned. For the first time in post-independence Kenya, economic and social rights have been introduced into Kenya’s Bill of Rights under Chapter Four of the Constitution. Amongst these rights is the right of every person to the highest attainable standard of health which includes the right to healthcare services and the right to reproductive healthcare. This right also includes the right of every person to emergency medical treatment. It is this last limb of this right that is forming the subject matter of this paper. Further, the Constitution guarantees equality and freedom from discrimination, and the full enjoyment of all rights and fundamental freedoms. The right to equality encompasses within itself the right of a poor patient to quality healthcare regardless of their ability to pay. Most importantly also, the scope of the Bill of Rights has also been widened as the Constitution now stipulates that most of the rights provided for in the Bill of Rights bind private individuals and corporations, as well as the state. Despite these constitutional guarantees though, the Kenyan media has been replete with reports of patients dying because they have been denied emergency medical treatment on account of inability to pay hospital charges. The question then becomes the extent to which this constitutionally guaranteed right is available for beneficiaries of rights under the Constitution.
In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domes... more In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to 'general rules of international law' as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.
The new Kenyan Constitution gives a very critical treatment to gender. It seeks to repudiate the ... more The new Kenyan Constitution gives a very critical treatment to gender. It seeks to repudiate the historical exclusion of women from the mainstream society. It strikes at the socio-legal barriers that Kenyan women have faced over history. Compared with the old constitutional order, the new legal framework not only creates space for women to maneuver their way in the private and public sphere on an equal footing with men, but also institutionalizes direct gender-specific measures that seek to correct the consequences of women’s historical exclusion from the society. Such measures include affirmative action. Through affirmative action, the new constitution seeks to elevate women to a pedestal that has hitherto been the preserve of men. In this paper, we trace the legal position of women throughout Kenya’s history. We argue that in the pre-colonial and colonial period women had a more or less diminished legal status. This situation did not change much after independence and throughout the subsequent regimes women’s legal status did not improve. The law discriminated against them either directly or in its effect. While multi-partys brought some gains, these were not significant enough to break off the legal and social chains that beset women in Kenya. The new constitution is a culmination of the incremental steps taken by the country to level the socio-legal terrain in favor of women. It provides the same opportunities for men and women. At the same time it seeks to rectify the imbalances that women have suffered throughout years of historical exclusion. The new constitution represents a significant improvement in women’s status in Kenya in all spheres of life. We discuss the opportunities and suggest that if women are to make a wholesome contribution to the Kenyan society they must take advantage of the framework in the new constitutional dispensation.
Health Act 2017, right to health, health law, article 43 Constitution, highest attainable standar... more Health Act 2017, right to health, health law, article 43 Constitution, highest attainable standard to health, bill of rights, Kenya health law, Kenya Health Professions Oversight Authority, Kenya Health Intergovernmental Consultative Forum, Kenya Health Human Resource Advisory Council, amendment of Health Act
International Journal of Clinical Legal Education, 2014
The Advocates Act Cap 16 and The Advocate (Admission) Regulations made thereunder 5 Regulation 3 ... more The Advocates Act Cap 16 and The Advocate (Admission) Regulations made thereunder 5 Regulation 3 of the Advocate (Admission) Regulations requires students to undertake a course of legal education at an institution established for the purpose e.g. the current institution is the Kenya School of Law where students learn practical courses. 6 At the faculty this occurs after the second year of study and takes a period of about 6 weeks.
In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domes... more In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to 'general rules of international law' as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.
Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Const... more Kenya’s Constitution has been hailed far and wide by many as one of the most transformative Constitutions in Africa and across the globe. It brought with it sweeping changes in so far as rights and fundamental freedoms in the Bill of Rights are concerned. For the first time in post-independence Kenya, economic and social rights have been introduced into Kenya’s Bill of Rights under Chapter Four of the Constitution. Amongst these rights is the right of every person to the highest attainable standard of health which includes the right to healthcare services and the right to reproductive healthcare. This right also includes the right of every person to emergency medical treatment. It is this last limb of this right that is forming the subject matter of this paper. Further, the Constitution guarantees equality and freedom from discrimination, and the full enjoyment of all rights and fundamental freedoms. The right to equality encompasses within itself the right of a poor patient to quality healthcare regardless of their ability to pay. Most importantly also, the scope of the Bill of Rights has also been widened as the Constitution now stipulates that most of the rights provided for in the Bill of Rights bind private individuals and corporations, as well as the state. Despite these constitutional guarantees though, the Kenyan media has been replete with reports of patients dying because they have been denied emergency medical treatment on account of inability to pay hospital charges. The question then becomes the extent to which this constitutionally guaranteed right is available for beneficiaries of rights under the Constitution.
In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domes... more In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to ‘general rules of international law’ as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.
Health Act 2017, right to health, health law, article 43 Constitution, highest attainable standar... more Health Act 2017, right to health, health law, article 43 Constitution, highest attainable standard to health, bill of rights, Kenya health law, Kenya Health Professions Oversight Authority, Kenya Health Intergovernmental Consultative Forum, Kenya Health Human Resource Advisory Council, amendment of Health Act
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Papers by Maurice Oduor
international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded
international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to ‘general rules of international law’ as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.
Drafts by Maurice Oduor
international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded
international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to ‘general rules of international law’ as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.