STRATHMORE LAW JOURNAL

STRATHMORE LAW JOURNAL

VOLUME 2, NUMBER 1, AUGUST 2016

Strathmore Law School Madaraka Estate, Ole Sangale Road P.O. Box 59857 00200 Nairobi - KENYA Tel. +254-703-034601 editor.sup@strathmore.eduwww.press.strathmore.eduwww.law.strathmore.eduTwitter: @strathmorelaw

Editorial BoardJohn Osogo Ambani – Editor-in-Chief Luis Franceschi – Dean of School of Law Humphrey Sipalla – Managing Editor Francis Kariuki Mukami WangaiJerusha Asin

Graduate Editorial AssistantsRaphael Ng’etich Martin Mwendwa

Student Editorial AssistantCecil Abungu

International Advisory BoardPatricia Scotland, Baroness of Asthal, QCWilly Mutunga, Former Chief Justice and President of the Supreme Court of KenyaJB Ojwang (Professor), Judge, Supreme Court of KenyaTimothy Endicott (Professor), Oxford UniversityJames T Gathii (Professor), Loyola University Chicago Law SchoolFrans Viljoen (Professor), Centre for Human Rights, University of PretoriaPaolo G Carozza (Professor), University of Notre Dame

Typesetting and artwork by John Agutu, Email: [email protected]

Printed by Colourprint Ltd, P.O. Box 44466 – 00100 GPO Nairobi

Strathmore Law Journal (SLJ) is the principal scholarly publication of Strathmore University Law School, Nairobi. The SLJ is a peer reviewed journal that publish-es scholarly contributions on topical aspects of African law and the law in Africa. The online edition is available on open access at www.press.strathmore.edu.

We generally accept submissions until 31 December of every year. As a generalist journal, we consider all sub-disciplines of law, with an emphasis on promoting legal scholarship relevant to Africa.

Please find our Submission Guidelines, Style Guide and back issues at http://press.strathmore.edu/academic-journals/

Contents

Editorial ................................................................................................................. vii

Foreword ............................................................................................................... xiii

Focus on terrorism - articles

Islam and terrorism: The blurred boundary between the cosmic and this world

Ochieng L Ahaya .............................................................................................. 1

A critique of the international legal regime applicable to terrorismNabil Mokaya Orina ......................................................................................... 21

Focus on terrorism - commentary

Regulating terrorism before the act of terror: A comparative studyFrederick B Fedynyshyn ...................................................................................... 37

The way forward on counter-terrorism: Global perspectivesAlex P Schmid ................................................................................................... 49

General articles

Derivative action under the Companies Act 2015: New jurisprudence or mere codification of common law principles?

Yohana Gadaffi and Miriam Tatu...................................................................... 75

Some thoughts on the implementation of political participation standards for persons with intellectual disabilities in Kenya

Lucianna Thuo ................................................................................................... 97

Chinese foreign direct investment and human rights in Kenya: A mutually-affirming relationship?

Rosemary Mwanza ............................................................................................. 133

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vi Strathmore Law JournaL, auguSt 2016

Recent developments

Chronicles of the Doha wars: The battle of Nairobi - Appraisal of the Tenth WTO Ministerial

Mihir Kanade ..................................................................................................... 155

The ‘great escape’: In pursuit of President Al Bashir in South AfricaJerusha Asin ....................................................................................................... 165

The sexual minority rights conundrum in Africa: Contextualising the debate following the Coalition of African Lesbians’ application for observer status before the African Commission

J Osogo Ambani ................................................................................................. 181

Selected recent institutional and rulemaking developments in the law of the sea (2015-2016)

Humphrey Sipalla .............................................................................................. 189

Book Review

Cyber-attacks and the exploitable imperfections of international lawReviewed by Ivan Sang ........................................................................................ 205

Constitutional law of Kenya on devolution Reviewed by Tom Kabau ..................................................................................... 213

Kenya-South Africa dialogue on devolutionReviewed by Teddy Musiga ................................................................................ 221

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Editorial

On 4-5 August 2015, Strathmore University Law School hosted its sec-ond Annual Law Conference under the theme, ‘Terrorism and chal-lenges to emerging democracies in Africa’. This second issue of the

Strathmore Law Journal (SLJ) continues with the practice begun in our inaugural issue of featuring scholarly commentary flowing from the theme of the Annual Law Conference, while at the same time, remaining open, as a generalist journal, to contributions from other areas of African law and the law in Africa.

Terrorism has plagued human societies from time immemorial. In recent times, as human societies have organised themselves around the nation-state, and as the nation-state has taken on the task of maintaining harmonious societies out of diverse communities under the rule of law, the ripple effects of terrorism on the national and international order have reverberated across borders and socie-ties.

Ben Saul recalls that inter-state disputes in Europe in the 1930s arising from contentious requests for extradition of accused terrorists led to the drafting of the 1937 League of Nations Convention for the Prevention and Punishment of Terrorism and the 1938 League of Nations Convention for the Creation of an International Criminal Court, neither of which came into force due to the out-break of war.1

Ben Saul further points to the problematic definition of “‘terrorism’ as a legal concept” since the 1930s, an effort that has been reinvigorated by the September 11 attacks and the subsequent Chapter VII UN Security Council Resolution 1373 (2001) that directed all states to criminalise terrorism in municipal law.

It can be argued that a clear legal definition has eluded terrorism for the phenomenon has indisputably distinct cultural, historical and socio-political con-texts across time and space. As liberation movements in the then colonies and social upheaval in established states increased after 1945, the 1950s-70s struggled with a wave of terrorism that was largely tied to national liberation claims. In Africa, liberation movements, from Algeria to South Africa were almost invari-

1 Saul B, ‘Defining terrorism: A conceptual minefield’ Sydney Law School Legal Studies Research Paper No. 15/84, September 2015 SSRN: http://ssrn.com/abstract=2664402.

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ably called ‘terrorist’ at their time. Tanzanian journalist Jenerali Ulimwengu in an opinion-editorial in March 2015 controversially highlights the difference between terrorism in the 60s and 70s to the contemporaneous actors and events. Ulim-wengu’s ‘terrorists of yore’ acted in a context of a ‘blurred line between terror and struggle’.

The Supreme Court of India offers a sobering reflection on contemporary terrorism in Peoples Union for Civil Liberties & Anor vs. Union of India Writ Petition (Civil) 389 of 2002:

Terrorism has become the more worrying feature of the contemporary life. Though violent behaviour is not new, the present day ‘terrorism’ in its full incarnation poses extraordinary challenges to [the] civilised world. The basic edifices of [the] modern state, like democracy, state security, rule of law, sovereignty and integrity, basic human rights etc. are under the attack of terrorism. Though the phenomenon of terrorism is complex, a ‘terrorist act’ is easily identifiable when it does occur. The core meaning of the term is clear even if its ex-act frontiers are not.[…] To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws.

Yet, alive to the inextricable links between democracy and rule of law, the Supreme Court of India further observes:

The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism. […] If human rights are violated in the process of combating terrorism, it will be self-defeating. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. The lack of hope for justice provides breeding grounds for terrorism. Terrorism itself should also be understood as an assault on basic rights. In all cases, the fight against terrorism must be respectful to the human rights.

In Africa, continental action in combating terrorism began in 1992, when the Organisation of African Unity (OAU) adopted Resolution on the Strength-ening of Cooperation and Coordination among African States [AHG/Res.213 (XXVIII)], including extremism and terrorism. Among the continental legal in-struments adopted include the 1994 Declaration on the Code of Conduct for Inter-African Relations [AHG/Del.2 (XXX)], the 1999 OAU Convention on the Prevention and Combating of Terrorism and its 2004 Additional Protocol, the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, the 2002 AU Plan of Action on the Prevention and Combating of Terrorism, and the 2011 African Model Law on Counter Terrorism. In addi-tion, regional institutions have taken significant steps to combat terrorism, for instance the decision by ECOWAS states to jointly launch military attacks against Boko Haram in Nigeria, Cameroon and Chad.

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It would hardly escape notice to the keen follower of news regarding ter-rorism that there has been some change to the name of one terrorist group in particular. This group is variously called Islamic State in Iraq and Syria (ISIS), Islamic State in Iraq and the Levant (ISIL) – in Arabic, al-Dawla al-Islamiya fil Iraq wa al-Sham2, Islamic State (IS) and Da’esh. Earlier references, commonly used by English speaking governments and media, was ISIL/ISIS. This occurred due to the difficulty in translating ‘al-Sham’, whose meaning has changed over centuries but largely describes the area around Syria, southern Turkey, Iraq, and may even include Jordan, Lebanon and the Palestinian Territories.3 What is clear is that the first three name changes, from Islamic State in Iraq (2006) to ISIL/ISIS (2013)4 to simply IS (June 2014)5 represent the group’s expansionist ambitions as it grew from Iraq to engulf Syria and set root in Libya as well as gain affiliates in Boko Haram in northern Nigeria/Chad/Niger/Cameroon as well.

It is in response to representations from Muslim leaders in the West that Western governments began adopting the term Da’esh to refer to the group. The Islamic Society of Britain and the Association of Muslim Lawyers pointed out to former UK Prime Minister David Cameron that ‘[the group] is neither Islamic, nor is it a state. The group has no standing with faithful Muslims, nor among the international community of nations’.6 As many in the Arab world including media organisations used ‘Da’esh’, which is an acronym derived from the group’s name, and given that it has ‘appropriately pejorative’7 connotations, given its phonetic similarity to the “Arabic..., which means to tread underfoot or crush’,8 this has been adopted by English speaking media and governments.9

While noting these considerations, and not in any way undervaluing the importance of not legitimising the self-styled ambitions of Da’esh, in this edi-tion of the Strathmore Law Journal, we have retained the term used by each author.

2 Irshaid F, “Isis, Isil, IS or Daesh? One group, many names” BBC Monitoring, 2 December 2015;Dearden L, “Isis vs Islamic State vs Isil vs Daesh: What do the different names mean – and why does it matter?” The Independent, 23 September 2014, variously transliterates it as “Al-Islamiya fi al-Iraq wa al-Sham”. See also, Woford T, “ISIL, ISIS or IS? The Etymology of the Islamic State, Newsweek Europe, 16 September 2014; Panetta A, “ISIS, ISIL, Daesh: A primer on why the terrorist group’s name keeps changing” CTV News, 18 November 2015.

3 Irshaid, ‘Isis, Isil, IS or Daesh?’.4 Dearden, ‘Isis vs Islamic State vs Isil vs Daesh’.5 Irshaid, ‘Isis, Isil, IS or Daesh?’.6 Dearden, ‘Isis vs Islamic State vs Isil vs Daesh’.7 Dearden, ‘Isis vs Islamic State vs Isil vs Daesh’.8 Dearden, ‘Isis vs Islamic State vs Isil vs Daesh’, also Irshaid, ‘Isis, Isil, IS or Daesh?’.9 France in September 2014 and Britain in June 2015.

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In this issue, Ochieng Ahaya, who presented at the Annual Conference, opens with a socio-religious perspective of terrorism, presenting the argument that extremist violence perpetrated in the name of religion, flows not from the rightful tenets of the religion itself, but from an obfuscation of the theological notion of cosmic war and the real world, particularly with the geopolitical ten-sions of the ‘clash of civilisations’. This has led, in the case of Islam, to a harsh and retrogressive interpretation of Sharia, and the actions of such groups as Da’esh and Al-Shabaab.

Mokaya Orina, who also featured at the Annual Conference, proceeding from the lack of a comprehensive binding terrorism specific instrument in inter-national law, investigates the interplay and potential synergies from the various sub-branches of international law, in the regulation of terrorism. Considering the tenets of human rights law as an important ‘fallback’ amid the lack of compre-hensive definition and regulation, Orina affirms the need for counter-terrorism efforts to respect the rule of law.

Two authors present brief but incisive commentary on terrorism. Fred Fe-dynyshyn interrogates an important question regarding the regulation of ter-rorism and the sanctioning of abstract relationships to criminal activity beyond conspiracy or attempt. As governments legitimately seek to protect their resident populations from unspeakable violence by preventing terrorist acts, a number have sought legal authority to sanction before the terrorist act. In a compara-tive study of Western nations, Fedynyshyn recalls examples of such regulation including criminalising of membership, travel restrictions, intangible support and financial support. Alex Schmid, drawing from his vast experience, closes this is-sue’s treatment of terrorism with a frank reflection of the five key areas that need attention if terrorism is to be defeated. Schmid, who was a keynote speaker at the Annual Conference, notes that though there have been some tactical successes in counter terrorism, a strategic breakthrough is yet to be achieved, especially in religiously motivated terrorism.

In our ‘General Articles’ Section, Gadaffi and Tatu review the 2015 Kenyan Companies Act, focusing on its codification of the common law rules on de-rivative action as established in Foss v Harbottle. With a comparative study of the Kenyan Act with the UK 2006 Companies Act, whence the Kenyan Act heavily borrows, the US Federal Rules of Civil Procedure and the Model Business Cor-porations Act, and relevant cases thereof, Gadaffi and Tatu conclude that the new Kenyan Act fails to comprehensively address the challenges that arose from common law derivative action.

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Human societies have had a poor track record in their regard of what com-mon law tradition ill-advisedly calls persons of ‘unsound mind’. Intellectual dis-abilities have, for too long, been conflated with mental illness, and used to limit the due political rights of persons with such disabilities. Luciana Thuo inter-rogates this subject, recounting the developments of international human rights law that have sought to strengthen the protection of persons with intellectual disabilities, and linking these to Kenya’s new constitutional order.

Rosemary Mwanza discusses the competing narratives of foreign direct in-vestments (FDIs) in developing countries: whether they undermine or affirm human rights protections. In the Kenya-China context, Mwanza identifies im-portant gaps that need be taken note of, such as the lack of substantive human rights provisions in the 2001 Kenya-China bilateral investment treaty (BIT), and recommends legal and non-legal measures to mitigate such risks.

Mihir Kanade opens our recent developments section with a reflection on the Tenth Ministerial of the World Trade Organisation that was held in Nairobi on 15-19 December 2015. This Tenth Ministerial had opened amidst tensions over continuation of the Doha Development Agenda and a perceived challenge to the global trade regime by the emergence of regional ones. Kanade considers whether, given pertinent decisions of the Nairobi Package on such issues as sub-sidies for farm exports, public stockholding for food security purposes, the spe-cial safeguard mechanism for developing countries, cotton, among others, this first ever WTO Ministerial held in Africa was beneficial for developing countries.

Jerusha Asin reviews the legal and political debate surrounding the failure by South Africa to arrest Sudanese president Omar el-Bashir during the July 2015 AU Summit in Johannesburg. In reviewing the strained AU-ICC relation-ship and the legal questions over immunity of high ranking state officials from prosecution, Asin interrogates the currency of legalism as a model for ordering international life in the context of state cooperation, where legal obligations to cooperate do not necessarily equate to political commitment to do so.

John O Ambani reviews the struggle the African human rights system is faced with regarding sexual minority rights. Ambani recalls the relevant legal provisions and jurisprudence of international human rights instances, and the cultural relativism debate. He relates these to the debate around the request for an advisory opinion from the African Court on Human and Peoples’ Rights over the extent to which AU political organs can direct the African Commission on Human and Peoples’ Rights over its interpretive mandate of the African Charter.

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This relates to the African Commission’s decision to grant observer status to the Coalition of African Lesbians.

Humphrey Sipalla reviews recent developments in the work of the key in-stitutions of the UN Convention on the Law of the Sea, namely, the Meeting of State Parties, the International Seabed Authority and the Commission on the Limits of the Continental Shelf. Sipalla also briefly makes note of the coming into force of the Agreement on Port State Measures to Prevent, Deter and Elimi-nate Illegal, Unreported and Unregulated Fishing (PSMA).

This issue closes with three reviews of recent publications. In reflecting on the value proposition of Yaroslav Radziwill’s Cyber-attacks and the exploitable im-perfections of international law (Brill Nijhoff, 2015), Ivan Sang’s review shadows the focus theme of this issue. The last two reviews are of publications on Kenya’s new system of devolved governance and its comparison with the South African, whence it was inspired. As devolution has been termed ‘the most complex and least understood aspect of the Constitution’, the reviews by Tom Kabau of John Mutakha Kangu’s Constitutional law of Kenya on devolution (Strathmore University Press, 2015), and Teddy Musiga’s of Kenyan-South African dialogue on devolution, edited by Nico Steytler and Yash Pal Ghai (Juta Publishers, 2015), highlight im-portant scholarship to redress said complexity and poor understanding.

In this second issue of the Strathmore Law Journal, we have focused particu-lar effort to further strengthen our editorial processes both the external double blind peer review, and the subsequent internal editing process. The editors sin-cerely thank the following, whose contributions as blind peer reviewers in the period since the last issue of the SLJ in June 2015, have been a critical part of our continuing commitment to ensure the quality of the journal: Juliet Okoth Amenge, Evelyne Asaala, Conrad Bosire, Ken Buhere, Mihir Kanade, Joshua Kembero, Eunice Kiumi, Joy Malala, Harrison Mbori, Tem Fuh Mbuh, Teddy Musiga, Catherine Ngina Mutava, Satang Nabaneh, Kameldy Neldjingaye, Je-hoshaphat John Njau, Linet Njeri, Ken Nyaundi, Walter Khobe Ochieng, Sa-rah Ochwada, Tom Odhiambo, Maurice Oduor, Dev Kumar Parmar, Mutuma Ruteere, Brian Sang, Solomon Sacco, Desmond Tutu and Seth Wekesa. These former are the ‘giants on whose shoulders we stand’.

Humphrey Sipalla Managing Editor

August 2016, Nairobi

xiiiStrathmore Law JournaL, auguSt 2016

Foreword

This edition of the Strathmore Law Journal introduces an outstanding collec-tion of articles, book reviews and recent legal developments. It is the product of a year of laborious reading, blind peer-reviews and professional editing car-ried out under the supervision and enthusiasm of the Editorial Board under the leadership of Osogo Ambani, one of the most disciplined and focused young Kenyan scholars.

Strathmore Law Journal’s 2016 edition is one more step forward towards the realisation of Strathmore Law School’s vision and mission. There is excellent and innovative scholarship and jurisprudence in Africa and about Africa that perme-ates the most varied realities and legal challenges the continent is facing.

This edition presents the reader with engaging reflections on what I en-joy calling contextualised human rights issues. Several authors write on terror and terrorism, which highlight the conflict between security, privacy and human rights. The topics of trade and human rights, devolution, the political participa-tion of persons with disabilities, as well as the rights of shareholders when it comes to derivative action are also featured. Finally, the editor-in-chief takes a look at the breath-taking expectations on the CAL application for observer status before the African Commission. On this issue, as I write, Africa awaits a decisive judicial verdict on a matter where the judicial and political organs of the AU are reading from contradictory scripts.

The authors have excelled in expounding their intellectual curiosity. They have analysed the topic of their choice with a critical mind, wit, freedom and, more importantly, with the difficult aim of finding the truth they set themselves to seek the day they entered law school.

William M. Sullivan, one of the most prominent modern advocates for a revival of professional responsibility, wrote an influential paper in 2005, titled “Work and integrity: The crisis and promise of professionalism in America”.1 He focuses on creating a new generation of professionals who embrace a stronger sense of social purpose. For Sullivan, educational training should include a strong social and ethical component; an essential part of the work of an advocate is to under-

1 Sullivan, WM, Work and integrity: The crisis and promise of professionalism in America, 2ed, Jossey-Bass, San Francisco, 2005, 327.

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stand the context so that he can give an intelligent response to the expectations others have of him in his client-advocate relationships.

This is a sort of third apprenticeship which has been largely ignored, and it is turning the wine of law and lawyers into vinegar before our eyes. Neil Hamil-ton and Sarah Schaefer have also pointed out in their paper “What legal educa-tion can learn from medical education about competency-based learning out-comes including those related to professional formation and professionalism”2 that there is a clear worldwide shift in legal education towards this third appren-ticeship. Hamilton and Schaefer advise that we should move away from a struc-ture- and process-based curriculum, where exposure is limited to specific content for a specified period of time defined only by the expert judgment of teaching staff, towards empirical research on the actual needs of clients and lawyers in the legal system, and a competency-based curriculum that includes an assessment of each student’s developmental stage with respect to the core competencies.

Hamilton and Schaefer argue that the new lawyer should foster trust by caring about the person, taking into account individual personal needs and pref-erences; promote a respectful environment that embraces diversity and open interaction; aim at getting proper personnel, resources, and adequate facilities; develop and practice superior communication skills which cannot be improvised; be disciplined in completing tasks and responsibilities and serve as a positive role model and mentor; and finally, pursue scholarship, seek and generate new knowl-edge, and share it generously.

Law schools cannot be reduced to teaching the technicalities of a moribund law, forgetting ethics and the soft skills that will make our future lawyers succeed or fail. The best schools in the world are waking up to this reality, and they are trying to learn from other professions which have set the pace.

I hope the depth and thoroughness of the articles contained in this edition of the Strathmore Law Journal will be our small contribution to the immense and exciting task of advancing African legal scholarship to the next level by exciting the minds of teachers and students alike to appreciate the beauty of law and its technical and jurisprudential challenges.

Luis Franceschi, LLB, LLM, LLD Dean, Strathmore Law School

2 Hamilton, N & Schaefer, S ‘What legal education can learn from medical education about competen-cy-based learning outcomes including those related to professional formation and professionalism’, 400 Georgetown Journal of Legal Ethics 29 (2016), 399-438.

1Strathmore Law JournaL, auguSt 2016

Islam and terrorism: The blurred boundary between the cosmic and this worldOchieng L Ahaya*

Abstract

Today the barbarity of crimes in the name of religion is all the more disturbing

particularly when one considers the righteous religious language in which such

heinous acts are cloaked. Violence perpetrated in the name of God continues to

engage the world at alarming levels. It is in this regard that this study examines

the general relationship between violence and religion in the specific context of

Islam from the point of view of the cosmic war theory as advanced by Mark

Juergensmeyer. The study observes that violent activities related to Islam are a

result of the blurring of boundaries between the symbolic cosmic world of religion

and this world, as a result of which the symbolic violence of religion translates into

real violence. This translation is occasioned by violent groups in Islam legitimis-

ing their violence on the inherent symbolic violence of religions as they respond to

‘unfavourable’ local and global structural conditions.

Introduction

Violent terrorism carried out in the name of God, or associated with it, has tragically become a common feature today.1 In these instances, terrorism is

1 Martin CA, Essentials of terrorism: Concepts and controversies, 4ed, Sage Publications, Los Angeles, 2016, 130.

* PhD, Chair of Department and Lecturer, Department of Social Science Education, Masinde Muliro University of Science and Technology (MMUST). Email; ahayaochieng @yahoo.com.

Focus on terrorism – articles

Ochieng L Ahaya

2 Strathmore Law JournaL, auguSt 2016

either inspired by the defensive motives of religions, or is driven by the motive to ensure the predominance of a faith, or even, in some instances, driven by an aggressive combination of both.2 However, religion is not always the only model of explaining terrorism.3 Nationalism and ideology have been identified equally as potent catalysts for explaining terrorism.4 Undoubtedly, there is enormous diversity of conditions to be considered when trying to understand and explain terrorism.

A number of situations have the capability of provoking terrorism.5 This presents a challenge of diversity that confronts any attempt at generalising ter-rorism. Analyses of these generalisations show that they are characterised by explanations that lay emphasis at different levels.6 These levels include explana-tions at the individual as well as group levels. These explanations aim primarily at psychological explanations/theories that try to identify why individuals join terrorists groups and how they are retained. The second level of explanations emphasises societal and national aspects.7 This category attempts primarily to identify causal relationships between certain historical, cultural and social politi-cal characteristics of the bigger society and the occurrence of terrorism.8 This generalised position is visible in terrorism theories that emphasise societal con-ditions such as modernisation. The final level of explanations emphasises the systemic or international aspects.9 This category isolates causal relationships be-tween characteristics of the international state system and the relations between states, on the one hand, and the occurrence of international terrorism, on the other. One common theoretical argument on terrorism in this category con-ceives terrorism in terms of the fierce competition between superpowers during the Cold War and the existence of nuclear arms which made international ter-rorism a preferred weapon in the struggle against global hegemony.10 Religion as a phenomenon apparently relates with terrorism at all the three levels of general conception as we shall see shortly in the following section.

2 See a discussion on the three levels of categories of generalisations of terrorism in chapter 7 ‘Reli-gious terrorism’ in Martin, Essentials of terrorism, 130-155.

3 Martin, Essentials of terrorism, 130.4 Martin, Essentials of terrorism, 130.5 Martin, Essentials of terrorism, 130.6 Brynjar and Skjolberg, ‘Why terrorism occurs: A survey of theories and hypotheses on causes of

terrorism’ Norwegian Defense Research Establishment (2000), 8.7 Brynjar and Skjolberg, ‘Why terrorism occurs’, 14-26.8 Brynjar and Skjolberg, ‘Why terrorism occurs’, 14-26. 9 Brynjar and Skjolberg, ‘Why terrorism occurs’, 26-28.10 Brynjar and Skjolberg, ‘Why terrorism occurs’, 26-28.



Theoretical framework

It is argued in this paper that it is more common to conceive the association between religion and terrorism in the Islamic context at the societal level men-tioned in the previous section than at the individual and systemic levels. This is the case when we seek to explain terrorism and Islam primarily in the context of the historical development and culture of the larger society as it relates to religion. The common claim of a clash of civilisations11 between the West and Islam easily fits into this category. A close scrutiny, however, will still reveal that religious phe-nomena in general interact with terrorism at the individual and group, as well as at the international, levels mentioned above. In all these interactions, religion has the potential to be the direct cause of terrorism, as well as the agent of powerful mo-tivations towards terrorism by conferring it with legitimacy. Religious interaction with terrorism therefore is potentially multi-dimensional and touches simultane-ously at the individual/group, societal, and international levels mentioned earlier.

While acknowledging the multi-dimensional nature of the interaction be-tween religion and terrorism, this study is theoretically guided by the grand script of the cosmic war as advanced by Mark Juergensmeyer. This theory maintains that violence is intrinsically bound to all religions. The logic that supports this position argues that since religious language is about the tension between or-der and disorder, religion is frequently about violence that easily translates into terrorism.12 Therefore, there exists an intrinsic appeal of war to the religious internal self-understanding similar to that generally found in the internal logic of warfare. It is this intrinsic appeal of war that is frequently exploited by terror groups. Perpetrators of terrorism often place religious images of divine struggle (cosmic war) in the service of worldly political battles. For this reason, acts of religious terror serve not only as tactics in political strategy but also as evocations of a much larger spiritual confrontation.13 This logic is among other things, con-firmed by the leader of the Islamic State of Iraq and Syria (ISIS) terror group Al-Baghdadi in his now famous phrase that ‘Islam was never a religion of peace but a religion of fighting and that this war is the war of Muslims against infidels.’14

11 McDaniel C, ‘Islam and the global society: A religious approach to modernity’ 2 Brigham Young Uni-versity Law Review, 4 (2003), 507. See also, Huntington SP, The clash of civilizations and the remaking of world order, Simon and Schuster, New York, 1996.

12 Juergensmeyer M, ‘The logic of religious violence’ in Rapoport D (ed), Inside terrorist organisations, Columbia University Press, New York, 1988, 179.

13 See Juergensmeyer M, Terror in the mind of God: The global rise of religious violence, 3ed, University of California Press, Berkley, 2003, 148-166.

14 ‘Is Islam a religion of war or peace? Both - and Muslims must decide, priest says’ Catholic News

Ochieng L Ahaya


Consequently, this group has developed a harsh and regressive interpretation of Sharia as drawn from the Qur’an particularly the sections that repeatedly instruct Muslims to support each other and to separate themselves from non-Muslims.15 The claim to have Islamic legitimacy and authority has seen the group take re-sponsibility for and justify its terrorist activities.16 We first turn, however, to reli-gious phenomena in general.

Of religion in general

To many students of culture, it is probable that religion is considered one of its most amorphous factors. This is so because not only is religion found in all known human societies,17 it also interacts significantly with other cultural institutions. Religion interacts with material culture, human behaviour, morals, ethics and the general value system. It has been expressed in this regard that there is no other cultural institution that presents so vast a range of expressions and implications as religion.18 The complexity of the religious phenomenon and its intimacy with the other aspects of life explain the attraction and attention it offers to scholars from across disciplines, all of whom have analysed religion with their own approach and method.19 This fate has been achieved due to the fact that religious concepts and ideas are not constrained by physical environment,20 and any excursion into religion more often meets with no other limitations than those of the inspiring spirit of the human mind itself; a feature that has found expression in the different descriptions of religion as offered by different scholars.21

Agency, 21 May 2015 http://www.catholicnewsagency.com/news/is-islam-a-religion-of-war-or-peace-both-and-muslims-must-decide-priest-says-24503/ on 29 June 2016.

15 “Hannah Brockhaus: Muslims who interpret Quran peacefully ‘find a strong ally’ in the Church” Catholic News Agency, 12 August 2016.

http://www.catholicnewsagency.com/news/muslims-who-interpret-quran-peacefully-find-a-strong-ally-in-the-church-98031/on 15 August 2016.

16 See more in ‘Abdullahi Ahmed An-Na’im: How Islamic law can take on ISIS’ Sunday Times, 17 Novem-ber 2015

http://www.timeslive.co.za/sundaytimes/opinion/2015/11/17/How-Islamic-law-can-take-on-ISIS on 29 June 2016.

17 See Pals DL, Eight theories of religion, 2ed, Oxford University Press, New York, 2006, 6-7.18 See Smith H, The religions of man, Harper Colophon Books, New York 1965, 312.19 See for example, Sigmund Freud in his psychoanalytic approach to study of religion, and Emile Dur-

kheim in the sociological approach to the study of religion, in Pals, Eight theories of religion, 53-118.20 Fuchs S, Origin of religion: Introduction to history of religion, Pontifical Institute Publications, Kerala, 1975,

12.21 Fuchs, Origin of religion, 12.



Among the many descriptions of religion some can be categorised as onto-logical. Descriptions in this category concentrate on the objects towards which religious activity is directed such as ‘God’ or ‘gods’.22 Psychological descriptions of religion pertain to religious activity itself and concentrate on what can be termed as the religious behaviour.23 Dialectical descriptions, as yet another cat-egory of religious descriptions, looks at religion in terms of the unique rela-tionship between subject and object in religious activity.24 All these categories underscore the position that religion interacts with human subjects variously, and with immense complexity of results in which the interplay of variables often proves difficult to establish with surgical accuracy.25 One area of interaction that displays enormous difficulty to analyse is the relationship between religion and violence in general, and the often-touted relationship between Islam and ter-rorism in specific terms. To this end, we posit the following question, to which the paper responds: what is the nature of the relationship between religion and violence in general, and religion with Islam in specific terms?

Religion and violence

Numerous researches have been carried out on the theoretical relationship between religion and war. The more recent works in this area include: Fields of blood: Religion and the history of violence26 by Karen Armstrong, and Not in God’s name: Confronting religious violence27 by Jonathan Sacks. In Fields of blood, Armstrong refutes the common western outlook that religion is inherently violent, which is often taken for granted and seems self-evident. This position explains why the main hope for peace is often state secularism, which aims to keep faith and statecraft separate. Arguing that this is an incorrect diagnosis leading to a flawed prescription, Armstrong maintains that throughout history, human beings have always chosen to intertwine religion with all their other activities, mainly because people wanted to endow everything they did with significance. This intertwining explains why religion is involved with politics, which also explains why religions have often been tied up with violence. Consequently, citizens often face the duty

22 Stark R and Bainbridge WS, A theory of religion, Peter Lang Publishing Group, New York, 1987, 11-25.23 Stark and Bainbridge, A theory of religion, 11-25.24 Stark and Bainbridge, A theory of religion, 11-25.25 See criticisms of the 19th century social thought and the traditions of grand theory associated with

the founding fathers of social science in Stark and Bainbridge, A theory of religion, 11-25.26 Armstrong K, Fields of blood: Religion and the history of violence, Alfred A Knopf Publishers, New York,

2014, 3-17.27 Sacks J, Not in God’s Name: Confronting religious violence, Hodder and Stoughton Publishers, London,

2015, 3-87.

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of confronting and trying to control violence without blaming religion for it or imagining that the solution lies in the sheer separation of religion and state. By exploring known examples of violence involving most of the religious faiths of the world, Armstrong argues finally that more often than not, violent impulses that originated elsewhere such as with nationalism, struggles for territory, re-sentment at loss of power, etc., present themselves as ‘religious’ disputes when really they have little to do with religion.28 Connecting this position to Islam, Armstrong takes issue with the Taliban or ISIS marauders who often cite their religious sources as the justification for their killing. This, Armstrong notes, is not a sign that they have spent too much time with the Qur’an, but instead, too little, and have ignored the many passages exhorting mercy and tolerance.

In Not in God’s name, Jonathan Sacks, like Karen Armstrong reviewed above, maintains the same line of theoretical postulation that refutes religion as inher-ently violent even though the two often go hand in hand. Neither does Sacks maintain that some religions are more violent than others, as this, according to him, is what leads to hostility between religions. The explanation for religion’s af-finity to violence, according to this author, lies in religion’s dual nature, as we can see in the three monotheisms of Judaism, Islam and Christianity. These religious traditions are spiritual belief systems that encourage prayer, charity and forgive-ness, as well as tribal identities whose noble sentiments have often been confined to fellow believers. It is in this latter category where religion becomes an identity and builds a community, that conflict and violence ensue.

The dual nature of religion therefore explains the religious paradox when the prophets and saints preach worldly detachment, and yet the most successful religions are increasingly attached to earthly powers lusting after power, territory and glory, things that are secular, even profane. It is also often too easy to main-tain that serving God means making or even forcing everyone else to worship as you worship. At its most extreme, this becomes what Sacks calls ‘altruistic evil: evil committed in a sacred cause, in the name of high ideals’. According to Sacks, ISIS is one such blatant example of altruistic evil. The barbarity of crimes in its name is all the more disturbing for the righteous religious language in which such crimes are cloaked.29 Yet, as Sacks rightly points out, the Qur’an celebrates human diversity rather than wanting to stamp it out: ‘Had God Willed, He could have made you one community’.30

28 See Armstrong, Fields of blood, 3-17.29 Sacks, Not in God’s name, 3-87.30 Quran 5: 48.



Generally, the two works by Armstrong and Sacks are both partly theologi-cal in their approach and view the close relationship between religion and terror-ist activities mainly from the perspective of the misinterpretation of religion and its sources. Armstrong maintains in this regard that often it is a result of spend-ing too little time with the given religious sources, while Sacks in his ‘theology of the Other’, sees the link in terms of the lack of acknowledging other peoples’ religion, as he says, ‘keep your own faith and identity, but acknowledge the stran-ger as your brother’. This paper is generally in agreement with the two positions, but also points out the fact that general research has shown that religious expres-sion itself even without misinterpretation is full of warfare symbolism, as can be seen in religious phenomenal aspects such as sacrifice, general worship and even songs. Religious statements such as, ‘we will crush the devil,’ ‘Christian life is war,’ and ‘we are the soldiers of God,’ all confirm the warfare symbolism as used in religion.

Rene Girard and Juergensmeyer are some of the scholars who have done extensive research in this general area of the intrinsic relationship between vio-lence and religion. In Violence and the sacred, Girard envisages religion as a way of regulating social violence and creating social cohesion in society. In this respect he argues that the sacrifices offered in religion, in essence, cast out the violence that threatens the community, hence turning such violence of the community from inside to outside. Put another way, Girard sees the function of religion as keeping violence out of ‘the community’ by way of a scapegoat sacrificial ritual that substitutes for it.31 Community as a given religious entity should be understood in this case as an aspect of social relationship between agents who consider themselves to be culturally distinctive from members of other groups with whom they have minimum regular interaction,32 and whom they frequently see as ‘the other’.

In his part, Juergensmeyer has explored the intrinsic appeal of war to the religious internal self-understanding and the enduring role of religion in warfare. In a lecture ‘God and War’, Juergensmeyer demonstrated how the internal logic of war and religion are generally similar, and how both generally constitute an expres-sion of fundamental efforts to understand the chaos that threaten the social (this world) and the metaphysical order.33 In this way, religion can sometimes be viewed

31 Girard R, Violence and the sacred, Johns Hopkins University Press, Baltimore, 1979, 1-7.32 See Eriksen T, Ethnicity and nationalism: Anthropological perspectives, Pluto Press, London, 1993, 12. 33 Juergensmeyer M, ‘God and war: The odd appeal of war, are we at war, and what does God have to

do with it’ Princeton University Public Lectures, 21-23 February 2006.

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as being no more than a form of language describing a struggle (read also as war) taking place in the cosmic plane (‘the world beyond’), and that pits the positive versus the negative categories as usually determined by the religion itself. How-ever, the demarcation or boundary between ‘the cosmic’ and ‘this world’ is often blurred and problematic in real terms. Terrorism, as a form of violence, and when viewed in the light of its connection with religion, in Juergesmeyer’s view, consti-tutes the public performance of violence through acts that reach out to particular audiences and which adheres to this grand script of the cosmic war,34 but with blurred boundaries or demarcations between the two worlds. The consequence of the blurred demarcation is that this time the religious violence that is the result, instead of being cosmic, becomes real violence, executed on the real rather than the cosmic plane, and people shed real rather than symbolic blood.

In Global rebellion: Religious challenge to secular states, Juergensmeyer further ad-vances his theory to explain violence and the new socio-political forces of the contemporary globalised world.35 At this point we note in this paper that glo-balisation has often been viewed as one of the principal ways of encroachment presented by modernity that is comprised of the processes in the interactions of human cultures that succeed in compressing and intensifying humankind’s knowledge of the world.36 As a consequence, the traditional boundaries and separations created by polities, and the physical properties of time and space are increasingly made inconsequential. Under modernity, we first saw religion relegated, and its place assumed by the modern nation states which usually were secular.37 Globalisation, in its turn, has furthered the relegation of religion in the state, and therefore is fast dismantling nations while enhancing secularism at the same time.38 In the above-mentioned book, Juergensmeyer captures the globalisation scenario and employs it to explain why religious activism erupted in the last decades of the 20th century. He focuses on what he calls loss of faith in secular nationalism partly due to the collapse of confidence in the western mod-els of nationalism, and partly due to the rise of globalisation. In both situations, Jugensmeyer argues, religion fights back by providing both an ideology of order and an image of cosmic war that should deliver back that order.39

34 Juergensmeyer, ‘God and war’.35 Juergensmeyer M, Global rebellion: Religious challenge to secular states: From Christian militias to al-Qaeda,

University of California Press, Berkeley, 2008, 1-26. 36 McDaniel, ‘Islam and the global society’, 509.37 Malan K, Politocracy: An assessment of coercive logic of the territorial state and ideas around a response to it, Scott

J (trans), Pretoria University Law Press, Pretoria, 2012, 1.38 Juergensmeyer, Global rebellion, 1-26.39 Juergensmeyer, Global rebellion, 1-26.



It is clear that both Girard and Juergensmeyer exhibit a difference of view on the relationship between religion and violence. However, there is little doubt that in their theories, both writers agree that violence is intrinsically bound to reli-gion, all religions. The logic that supports this position argues that since religious language is about the tension between order and disorder, religion is frequently about violence.40 An examination of this position in the context of Islam may adduce the case of the ‘pelting of Satan’ which is one of the rituals of the Hajj.41 This ritual takes place at Mina, situated seven kilometers off Masjid al-Harram.42 Mina contains jamarat, the three stone pillars pelted as a compulsory ritual of Hajj symbolising the pelting of Satan with stones, in emulation of the prophet Ibrahim when he pelted Satan for trying to dissuade him from sacrificing his son Ishmael.43 Furthermore jihad as a concept in Islam basically denotes struggle or tension between two positions.44 Some Muslim writers maintain in respect to jihad that there is often no alternative but for a Muslim to exert self with ut-termost power to establish Islam.45 These two examples suffice to confirm the cosmic struggle as applicable in the case of Islam. This conformity to the cosmic struggle informs the ISIS leader al-Baghdadi’s assertions that Islam is a religion of fighting, as we saw earlier, and that the West is the foe.

In concluding this section, we note that history in general is full of evidence to support the link between religion and violence when it confirms that no other cultural institution has shed more human blood than religion in general.46 This is because not only have religion’s characteristics led spiritual persons into violence, but violent situations have reached out for religious justifications as well. As Juer-gensmeyer ably stated ‘…extremism in religion [has] led to violence at the same time as violent conflicts have cried out for religious validation….’47 Against this background, we can argue that as it is with all religions, the relationship between Islam and violence in general is intrinsic: a position that brings about the relation-ship between Islam and terrorism, as with all other religions.

40 Juergensmeyer, ‘The logic of religious violence’, 179.41 Ahmed N, The fundamental teachings of Quran and Hadith, Kitab Bhavan, New Delhi, 1980, 39-47.42 Ahmed, The fundamental teachings of Quran and Hadith, 39-47.43 Ghani A, The history of Makkah Mukarramah, Dar-us-Salam Publications, Houston, 2004, 18.44 Al-Qardawi Y, The lawful and the prohibited in Islam, Al-Birr Foundation, London, 2003, 216-217.45 Maududi SA, Fundamentals of Islam, Islamic Publications, Lahore, 1980, 241-262.46 Tiwari NK, Comparative religion, Motilal Banardidass, Delhi, 1983, 4.47 See Juergensmeyer, Terror in the mind of God, 1-26.

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Islam and the acts of terrorism

Barack Obama captured the pulse of the world today with regard to terror-ist violence when he observed that the world was at a crossroads between peace and war; between disorder and integration; and between fear and hope.48 This presented a paradox considering the enormous gains made under the new world order which had seen the prospects of war between the major world powers radi-cally reduced, and which witnessed more people living instead under democratic governments elected by them.49 Yet, at the same time, the very global forces including technology that had brought the rest of the world together had made it more difficult for nations to insulate themselves from the new dangers created by the same global forces, as is evident in the case of terrorism.50 Terrorism as a phenomenon has grown fast over the last two decades to affect countries almost everywhere in the world. Its monumental growth has become an issue of global concern as can be discerned from the many international conferences and sum-mits that have been held to debate and offer solutions to its attendant impact.51

In terms of impact, terrorism as a phenomenon targets human society in all sectors; social, economic, political and religious, etc. It is likewise not limited to any particular geographical region, underscoring it as a universal and global phenomenon. We have already mentioned the many categorical levels of ter-rorism and how these explain the multiple perspectives and diverse theories as-sociated with the terrorism phenomenon in the world today. We further saw the societal perspective that often traces the phenomenon to the socio-economic and political conditions in the world when terrorism is interpreted as a yearning for an alternative to the status quo. Yet, another common perspective in this category views terrorism in terms of individual or group dynamics. This view holds terrorist activities as forms of reaction to issues related to nationalism, ethnicity, poverty, radicalisation, failure of democracy, and religion.52 The main argument at this point is that a close analysis of the modern nation state with its secular and capitalistic tendencies in relation to terrorist activities, confirms a

48 See ‘Remarks by President Obama in Address to the United Nations General Assembly’ White House, 24 September 2014

https://www.whitehouse.gov/the-press-office/2014/09/24/remarks-president-obama-address-united-nations-general-assembly on 30 June 2016.

49 ‘Remarks by President Obama in Address to the United Nations General Assembly’.50 See ‘Remarks by President Obama in Address to the United Nations General Assembly’.51 See for example, the International Counter Terrorism (ICT) 14th Annual International Conference,

World Summit on Counter-terrorism: Terrorism Global Impact on 8-11 September 2014 https://www.ict.org.il/articles.aspx?wordID=12 on 30 June 2016.52 See Crenshaw M, ‘The causes of terrorism’ 13 Comparative Politics, 4(1981), 381.



combination of many of these perspectives in operation; a position supported in this article.

Ever since the last quarter of 18th century, the nation state has been reli-giously venerated.53 Koos Malan corroborates this observation when he writes that the state has developed its own ideology that leaves an imprint on the mod-ern man, and fosters dependence upon the state, inculcating a belief in, and loyalty towards, the state.54 Bikuh Parekh asserts further in this regard of the modern nation state that:

All citizens are expected to privilege their territorial over their other identities; to consider that they share in common as citizens far more important than what they share with other members of their religious, cultural and other communities; to define themselves and relate to each other as individuals to abstract away their religious, cultural and other views when conducting themselves as citizens; to relate to the state in an identical manner; and to enjoy an identical basket of rights and obligations. In short the state expects of all its citizens to subscribe to an identical way of defining themselves and relating to each other and the state. This shared political self-understanding is its constitutive principle and necessary presup-position. It can tolerate differences on all matters but not on this one, and uses educational, cultural, coercive and other means to secure that all its citizens share it. In this important sense it is a deeply homogenizing institution.55

Prior to the advent of the modern nation state, wars of religion had always included nationalistic as well as religious movements. However, since the late 18th century, religion has been surpassed by nationalism as the chief factor in human group relationships.56 During the medieval periods, it has been observed, human-kind notoriously fixed its gaze toward the heavens seeking divine revelation.57 Then, in the succeeding extroverted period of the Renaissance, this gaze shifted horizontally toward humankind and the world.58 In the resultant atmosphere of human confidence as a characteristic of this extroverted period, intellectual focus shifted to what humankind had to say, instead of remaining fixed on divine rev-elations as before.59 At this juncture, the main gist is that no other phenomenon in human societies captures singularly the historical shift in the western national aspirations so totally today as the modern secular state phenomenon. This is to

53 Malan, Politocracy, 1.54 Malan, Politocracy, 1.55 Parekh B, Rethinking multiculturalism: Cultural diversity and political thought, Harvard University Press,

Cambridge Massachusetts, 2000, 185.56 See Malan, Politocracy, 1-7.57 Cox H, The secular city, SCM Press, London, 1965, 1-12.58 Malan, Politocracy, 3.59 Malan, Politocracy, 3.

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say also that the much hyped ‘clash of civilisations’ between Islam and the West,60 in many scenarios, bears witness to the modern secular state effectively, repre-senting the western rubric in the eyes of many extremist Muslim groups, and also explains the groups’ yearnings for Islamic states as is the demand made in some Muslim-majority nations. Global Muslim groupings such as ISIS, al-Qaeda, and al-Shabaab are all relevant examples of these groups generally united in their opposition to the West as well as in their intentions to establish polities governed purely by Sharia (Islamic law) in the form of positive law.

These groups propagate the notion that the West is generally at war with Is-lam and they convince their followers that there is a clash of civilisations between Islam and the West, and also that terror activities constitute a remedy to this clash besides constituting part of worship in Islam. Recent terror attacks in Kenya, also confirm to some extent the above logic with group actors at the regional lev-el. This is to say that contemporary terrorist actors are usually groups organised by religious fanatics opposed to westernisation, and, to foreign ideologies which they feel are not in tandem with, and threaten, Islam.61 Incidences of terrorism have increased in the last two decades with group actors of global status who occasionally also have local presuppositions as the case of terrorism in Kenya carried out by the al-Shabaab group with its connection to al-Qaeda indicates. It is also noted that some of the terrorist players or agents operating in Kenya are internationally grounded as intelligence investigations have shown.62 On 14 June 2015, during a botched terrorist attack on a Kenyan military barracks, among the terrorist casualties was a Caucasian of British origin,63 supporting, among other claims, the global nature of terrorism in Kenya. This adds therefore to the view that Al-Shabaab’s threat in Kenya was not a mere issue between Kenya and the failed state of Somalia.64

60 McDaniel, ‘Islam and the global society’, 507-510.61 Moghadam A, Berger R, and Beliakova P, ‘Say terrorist, think insurgent; Labeling and analyzing

contemporary terrorist actors’ 8 Perspectives on Terrorism, 5 (2014).62 Otiso K, ‘Kenya in the crosshairs of global terrorism: Fighting terrorism at the periphery’1 Kenya

Studies Review, 1 (2009),107-132.63 See ‘Al-Shabaab fighters killed in fire fight at Kenyan base’ Aljazeera news, 14 June 2015 http://www.aljazeera.com/news/2015/06/al-shabab-fighters-killed-firefight-kenyan-

base-150614092239160.html on 16 August 2016.64 A section of the Kenyan masses and politicians prefer to view the increased al-Shabaab terrorist

activities in the country in terms of the presence of the Kenya Defence Forces in Somalia. See for example, ‘Faith Karimi: Kenyans debate: Time to get troops out of Somalia?’ CNN, 28 September 2013

http://edition.cnn.com/2013/09/28/world/africa/kenya-mall-attack-reaction/ on 16 August 2016.



When all is said and done, there is little doubt that today’s terrorism is overwhelmingly Muslim, and its roots pervade the Muslim world. Furthermore, the terror groups will always choose, prefer or intend that we associate them with Islam. In this respect, groups like Boko Haram, al-Qaeda, al-Shabaab and ISIS are always trying to portray themselves as religious leaders, holy warriors: all in defense of Islam. ISIS, in particular, presumes to declare itself the ‘Is-lamic State.’ Usually these groups propagate the notion that the United States of America and the West, generally, are at war with Islam, a position that also forms the basis of how these groups recruit their membership.65 As a result, Muslim communities have found themselves increasingly plagued by many events that have struck the world as both offensive and shocking, and which in some way or another are related to their religion.66 Islamic culture in some parts of the world has become associated with harshness and cruelty in the popular imagination.67 In many parts of the world, the image of Islam is hardly that of a humane reli-gion but the symbol of a draconian tradition that exhibits little compassion and mercy towards human beings, yet mercy is a central value upon which Islam is based. We note in support that, out of the 114 chapters of the Qur’an (the su-preme authority of Islam), with the exception of the Ninth, all begin with the invocation ‘... in the name of God, the compassionate the merciful…’

In the next section, we turn our attention to the claim of the clash of civilisations between Islam and the West, and its connection to terrorism in the context of the modern nation state as a western concept opposed to Islam in the eyes of many Muslim terrorist group actors.

Clash of civilisations narrative in the modern secular state concept

In contrast to the rise of secular civilisation in the Western world, the ori-gin of the phenomenon in the Muslim world occurred in completely different circumstances. Before Napoleon’s invasion of Egypt in 1778, the entire Muslim empire, dominated by the Ottoman Turks, was relatively Islamic in norms, laws, values and traditions.68 What was to follow Napoleon’s invasion was phenomenal and the Muslim world is still recoiling from its impact and the attendant influenc-

65 McDaniel, ‘Islam and the global society,’ 507-510. 66 Fadl KMA, ‘The culture of ugliness in modern Islam and reengaging morality’ 2 UCLA Journal of

Islamic and Near Eastern Law (2003), 34.67 El Fadl, ‘The culture of ugliness in modern Islam and reengaging morality’, 34.68 Akhtar S, ‘Islam and the challenge of modern world’ in Kurzman C (ed), Liberal Islam: A sourcebook,

Oxford University Press, Oxford, 1998, 319-327.

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es. Shabir Akhtar confirms western secular influence on Muslims when he ob-serves that since the end of 19th century, the entire house of Islam has survived on an intellectual overdraft, and that the West is no longer some abstract force in the distant land, but that ‘Muslims are living in the West’.69 As a result of the western influence on Muslims and their general way of life, many observers con-tend that the main socio-cultural challenge facing Muslims in the contemporary world is how to deal with westernisation and its attendant values of secularism, nationalism, and capitalism, and still maintain an Islamic identity.70

Secularism, it has been argued in some quarters, is incompatible with Islam for it ignores any form of theocracy.71 Proponents of this position often employ a civilisational theoretical approach focusing on Qur’an-based religious essentials to explain the impact of Islam on the socio-political order. Ahmet Kuru captures this approach by drawing attention to the absence of the ‘distinction between the church and state’ in Islam claiming that ‘Render unto Caesar’ is a Christian position that separates state and religion.72 Proponents of this view assert that secularism encourages a different set of policies based on science and human-made laws rather than divine criteria, relegating religion to the realm of private preference and judgment.73 Mamadiou Dia, while maintaining the incompatibility of Islam and secularism, argues that the later sacrifices the unitary character of Islam to a dualist point of view that is foreign to it and in many ways equiva-lent to the Christianisation of Islam.74 However, modernity, and by extension a secular phenomenon, is in a central sense inescapable. Akhtar points out in this regard that today even traditional Muslim believers are far more secularised than they themselves might imagine.75

The main point of argument here is that the question whether ‘God and Caesar’ are one or separate in Islam in this era of secularisation is still a prob-lematic theoretical principle, but a practical reality too as can be deduced from the significant levels of secularism among Muslims. A report in 2005 on state-

69 Akhtar, ‘Islam and the challenge of modern world’, 321.70 Akhtar, ‘Islam and the challenge of modern world’, 319-23. 71 See generally Islam and secularism in Ahaya O, ‘The secular state premise and the Kadhi court

debate during Kenya’s constitutional review moment’ Unpublished PhD Thesis, Moi University, 4 September 2015, 45-51.

72 Kuru A, ‘Passive and assertive secularism: Historical conditions, ideological struggles, and state poli-cies toward religion’ 59 World Politics (2007), 527.

73 Mutalib H, ‘Islamic resurgence and the twenty-first century: Redefining old agendas in a new age’ 13 The American Journal of Islamic Social Sciences 1, (1996), 97.

74 Dia M, ‘Islam and humanism’ in Kurzman (ed), Liberal Islam, 295-303.75 Akhtar, ‘Islam and the challenge of modern world’, 321.



religion relations in forty-four Muslim countries concluded that the majority of the world’s Muslim population lived in countries that either proclaimed the state to be secular, or that made no pronouncements concerning Islam as the official state religion.76 The example of Kenya during the constitutional moment that largely delivered the 2010 Constitution of Kenya, further confirms this reality, when Muslims in Kenya were more concerned with the issue of Kadhi courts than the separation of religion and state as enshrined in the same Constitution.77

It must be noted all the same that some Muslim scholars maintain to the contrary that Islam has no issue of compatibility with the secular state phenom-enon. Abdullahi Ahmed An-Na’im, in Islam and the secular state: Negotiating the future of Sharia,78 has argued that two debates pervade almost all discussions about Islam, Muslim societies, and the role of both in the 21st century. The first of these debates revolves around Sharia as a comprehensive guide to good conduct for Muslims, and its applicability within Muslim pluralist states. The other de-bate frames capitalism, socialism and secularism as antithesis to Islam and what it stands for. An-Na’im joins this debate submitting that secularism is not an unwelcome counter-force to ‘true’ Islam since Islam and the state have always been separate. Instead, secularism is the indispensable path to reclaiming Islam, advancing pluralism, human rights, women’s rights, civil society and citizenship.79

This article observes that the background of divided opinion with regard to Islam and secularism and by extension the modern secular state is a potential recipe for frustration among certain sections of the Muslim populations. Ber-nard Lewis has argued in support of this position, that Islamic fundamentalism has given an aim and form to an otherwise aimless and formless resentment; an anger of the Muslim masses at the forces that have devalued their traditional values and loyalties and, in the final analysis, robbed their beliefs, aspirations, dig-nity and, to a considerable extent, their livelihoods.80 This perspective on Islamic fundamentalism resonates closely with the position advanced by Armstrong in

76 See United States Commission on International Religious Freedom, The religion-state relationship and the right to freedom of religion or belief: A comparative textual analysis of the constitutions of predominantly Muslim countries, March 2005

http://www.uscirf.gov/sites/default/files/resources/stories/pdf/Comparative_Constitutions/Study0305.pdf on 16 August 2016.

77 Ahaya, ‘The secular state premise and the Kadhi court debate during Kenya’s constitutional review moment’, 45-51.

78 An-Na’im AA, Islam and the secular state: Negotiating the future of Sharia, Harvard University Press, Cam-bridge Massachusetts, 2008, 1-294.

79 An-Na’im, Islam and the secular state, 267-294.80 Lewis B, ‘The roots of Muslim rage,’ 266 The Atlantic, 3 (1990), 47-60.

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Fields of blood discussed earlier when she advanced the theory that the violence as-sociated with religion often has its roots elsewhere in society and not in religion.

An-Na’im elaborates this position further when he notes that the key to understanding the role of Islam in politics and violence lies in the fact that there is no one authoritative entity that can establish or change Sharia doctrine for Muslims on any subject. In this respect Islam lacks the equivalent of the Vatican and papal infallibility. How Sharia is interpreted by the many different sectarian brands of Muslim communities is, therefore, at best based on the product of an intergenerational consensus of scholars, and on the leaders of each com-munity in other circumstances. By nature, therefore, Islamic belief and practice is, arguably, fundamentally individual and voluntary. Consequently, Islamic fun-damentalism (Islamism) is hardly uniform since multiple forms of it continue to spread and diversify from the numerous interpretational models. As a result, it is possible to encounter today Islamists who are radical or moderate, political or apolitical, violent or quietist, traditional or modernist, democratic or authori-tarian.81 All the same, Islamists are usually subscribers to the violent strand of Islamic interpretation increasingly conceived by others as terrorism. Their own self-understanding, however, is that of people acting from inside religion, as it were, to defend their individual and collective identity against a perceived western onslaught and to effect a moral and material regeneration in their society.82 But, to what extent do their interpretation and reactions represent the ideals of Islam, and how is terrorism therefore Islamic? These are questions that we turn to next.

Islamism in the general scheme of Islam

Many terrorist acts such as the attack on students of Garissa University College in Kenya, on 2 April 2015,83 the Paris attacks of 13 November 201584 and the more recent Brussels attack85 constitute chapters in the long saga of the ‘ugly’86 that has forced many Muslims who are embarrassed and offended by

81 Fuller GE, ‘The Future of Political Islam’ Foreign Affairs Magazine March/April 2002, 49.82 Fuller, ‘The future of political Islam’.83 See “Garissa university attack plotter Mohamed Kuno ‘dead’” BBC News 1 June 2016 http://www.bbc.com/news/world-africa-36427289 on 16 August 2016.84 “Keith Perry: Paris attacks: ISIS gunmen shouted ‘Allah Akbar’ as victims were slaughtered in co-

ordinated attacks” Mirror 14 November 2015 http://www.mirror.co.uk/news/world-news/paris-at-tacks-isis-gunmen-shouted-6830234 on 9 May 2016.

85 See “Kim Wilsher: Brussels terror cell ‘planned to attack euro 2016 tournament’” The Guardian 11 April 2016 https://www.theguardian.com/world/2016/apr/11/brussels-terror-cell-planned-to-attack-euro-2016-tournament on 9 May 2016.

86 El Fadl referring to the association of terrorism with Islam in, El Fadl, ‘The culture of ugliness in



this legacy to take an apologetic stance. It has become common for a section of Muslims in this category to argue that Islam as an ideal must be separated from Muslim subjects, and that Islam, therefore, does not necessarily sanction the violent behaviour associated with terrorism.87 Alternatively, these apologetic Muslims also argue that only a small percentage of the Muslim population is Ar-ab.88 Thus, because of the troubled image of Arabs in the world many Muslims would rather distance themselves from the Arab identity or culture.89 This article agrees with Khaled Abou El Fadl when he argues that often these arguments are factually correct and even logical but unconvincing because they are evasive and may not take into consideration a variety of countervailing factors. For instance, these arguments ignore the role of intervening factors such as history in the understanding of the present, as the argument in this article in the case of the secular state phenomenon has attempted to do. The apologists assume equally erroneously that it is possible to separate with surgical accuracy a system of be-lief from the social practices that have grown around it.90 These apologetic argu-ments, as the main thesis of this article sustains, fail to take into consideration the role of human subjectivities in determining and acting upon religious doctrines, wherein some peculiar ways of the actions mentioned; translate into radicalism and eventually violence.

To explore this argument further the article agrees that values and their meaning in culture are neither constant nor stable but instead are constantly shifting, evolving and mutating in response to a variety of influences and mo-tivations.91 It is therefore good advice that when considering even religiously-revealed values it must be borne in mind that such values, like any other values, acquire meaning within developing and constantly changing societal contexts. It is sustainable in this case that it is always impossible to eliminate subjectivities of both historical and social dimension from participants as they endeavour to gen-erate meaning. For example, the diverse notions about the relationship between religion and the state in Islam as occasioned by modernity and as demonstrated by the varying positions as examined earlier in this article, expresses the various interpretive ventures that existed at different times in the history of Islam, and

modern Islam and reengaging morality’, 35.87 El Fadl referring to the association of terrorism with Islam in, El Fadl, ‘The culture of ugliness in

modern Islam and reengaging morality’, 35.88 El Fadl referring to the association of terrorism with Islam in, El Fadl, ‘The culture of ugliness in

modern Islam and reengaging morality’, 35.89 El Fadl, ‘The culture of ugliness in modern Islam and reengaging morality’, 35.90 El Fadl, ‘The culture of ugliness in modern Islam and reengaging morality’, 36.91 El Fadl, ‘The culture of ugliness in modern Islam and reengaging morality’, 47.

Ochieng L Ahaya


that gave the notion of this relationship a variety of imports and connotations as circumstances dictated. In this sense, Islamic civilisation, as envisaged in the civilisational conflict between the West and Islam, is in reality a complex bundle of competing interpretations generated by a variety of communities of meaning at different times and places and under different stimuli. The same logic informs and supports the argument sustained in this article that acts of cruelty that con-stitute terrorism are not expressions of some profound Islamic authenticity or truth. To the contrary, these cruelties can be seen as part of a struggle between the interpretive communities over who gets to speak for Islam and how, as influ-enced by the subjectivities of the multiple dimensions of modernity as it appar-ently alienates the Islamic historical experience. El Fadl captures the spirit of this argument best when he maintains:

Despite the waving of the banner of Islamic authenticity and legitimacy Muslim terrorists are far more anti-western than they are pro-Islamic. Their primary aim is not to explore or investigate the parameters of Islamic values or the historical experience of Islamic civiliza-tion, but to oppose the West. Islam therefore is just a symbolic universe in which they func-tion. Their protest is framed in Islamic terms because they are Muslims but it is not the case that they protest because they are Muslims or because they belong to a normative imperative that might be labeled as the Islamic civilization.92

Islam and terrorism: The main argument and conclusion

This article argues that there is no express connection between Islam and terrorism just as is the case with other religions. However, in Islam, as in other world religions, there rages an intrinsic struggle that is both cosmic and symbolic, as we saw in the example of ‘pelting of Satan’, which is one of the rituals of Hajj. It is in this intrinsic struggle that the symbolic violence has great and real potential to translate into real physical violence, usually fired by catalysts in the form of interpretations of prevailing societal conditions resulting in a war fought on our real plane; a war that depends on who creates meaning, and at what time. This potential is certainly what Al-Baghdadi exploits in interpretational terms when he states:

O Muslims, Islam was never for a day been the religion of peace. Islam is the religion of war….Mohammed was ordered to wage war until Allah is worshipped alone….He himself left to fight and took part in dozens of battles. He never for a day grew tired of war. 93

92 El Fadl, ‘The culture of ugliness in modern Islam and reengaging morality’, 49.93 A statement by Abu Bakr al- Baghdadi in ‘Soeren Kern: UK: Politicians Urge Ban on the Term

“Islamic State”’ The Gatestone Institute 4 July 2015 https://www.gatestoneinstitute.org/6095/uk-ban-



This unfolding on Islam and violence is closer conceptually to Johan Gal-tung’s ‘violence triangle’94 in which cultural and structural violence cause direct violence while direct violence reinforces structural and cultural violence. Galtung argues that direct violence is often the more visible and takes many forms. In its classic form, it involves the use of physical force, as in killing or torture, rape and beatings. It can also involve any avoidable impairment of fundamental human needs even life itself which makes it impossible or difficult for people to meet their needs and achieve their full potential.95 Cultural violence, on the other hand, refers to aspects of culture that can be used to justify or legitimise direct or struc-tural violence, and may be exemplified by religion and ideology.96 Cultural vio-lence makes direct and structural violence look or feel ‘right’, and so acceptable to society. One mechanism of cultural violence is to change the ‘moral colour’ of an act from ‘red/wrong’ to ‘green/right’, or at least to ‘yellow/acceptable’.97

Structural violence, on its part is said to exist when some groups are as-sumed to have, and, in fact, do have, more access to goods, resources, and op-portunities than other groups, as the result of unequal inbuilt advantages in the very social, political and economic systems that govern societies, states and the world and often seen in the form of the deprivation of basic human needs. Thus, from this perspective, the terrorist violence of ISIS as ‘direct violence’ can be conceived as the result of unequal localised as well as global ‘structural conditions’, as is seen, for example, in the phenomenon of failed states. The ‘cultural dimension’, on its part, sets in and exploits the inherent close symbolic relationship between Islam and violence by explaining the failed states from the clash of civilisations’ perspective and equating this with the symbolic cosmic war narrative that ‘Islam is war.’

In conclusion, the inherent relationship between religion and violence as envisaged in the symbolic cosmic war or struggle translates into real violence and, therefore, terrorism, when the thin line or boundary between ‘this’ (the real world) and the cosmic plane becomes blurred through preaching and creation of meaning in society, by the likes of Al-Baghdadis of ISIS, Osamas of al-Qaeda, and the al-Shabaab movements, as a result of which the two worlds merge to become one: the radicalising process. At such moments of merger, the symbolic struggle in the cosmos becomes real from the point of view of the participants.

islamic-state on 30 June 2016.94 See Galtung J, ‘Violence, peace, and peace research’ 6 Journal of Peace Research, 3 (1969), 167-191.95 Galtung, ‘Violence, peace, and peace research’, 168-169.96 Galtung J, ‘Cultural violence’ 27 Journal of Peace Research, 3 (1990), 291-305.97 Galtung, ‘Cultural violence’, 294-305.

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In this way, Islam, like other world religions, has a potential inherent relationship with violence and eventual terrorism as long as the symbolic cosmic foe can be given a real face in this world. It is common to conceive radicalism as a process that witnesses individuals or groups who more and more adopt political and so-cial ideals and aspirations that are more and more extreme, and which undermine the contemporary ideas and expressions of freedom of choice. This article is in agreement, but adds that, in religion in general, and Islam specifically, radicalism from the cosmic war narrative perspective translates into the blurring of bounda-ries in the creation of meaning through interpretations and preaching in which the symbolic wars of religion become real war. ‘The blurring of the boundary in the creation of meaning’ therefore is the key to understanding religion and violence, in general, and Islam and terrorism specifically.


A critique of the international legal regime applicable to terrorismNabil Mokaya Orina*

Abstract

Terrorism is a global phenomenon that permeates state borders and predominantly

causes immeasurable suffering to civilians. The need for international cooperation

and concerted efforts in combating terrorism cannot be gainsaid. Already, sectoral

instruments have been passed to regulate certain aspects of terrorism. However,

without a single terrorism specific instrument, acts of terrorism generally classified

will fall under spheres of international law which include; public international law,

international criminal law, international humanitarian law, human rights and

refugee law. This paper makes a critical analysis of these spheres of international

law and how they apply to states’ counter-terrorism efforts.

Introduction

States are required to take measures and cooperate with each other in order to maintain international peace and security within their international obliga-tions.1 Terrorism is no doubt an issue that threatens international peace and se-curity. Noting the absence of a comprehensive internationally binding terrorism specific instrument, it is important to interrogate the interplay between the dif-ferent spheres of international law and terrorism and attempt to find a balance. In this discourse, this paper is divided into five parts. The first contextualises

1 The United Nations Security Council has called upon states through UNSC S/RES/1456 (2003) High-level meeting of the Security Council: Combating terrorism, to take measures in countering terrorism which comply with all their obligations under international law and to adopt such mea-sures in accordance with international law, especially international human rights law, refugee law and humanitarian law.

* Lecturer, Moi University, School of Law.

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terrorism within international criminal law while showing its connection with international crimes. The second interrogates the justification of the use of force in combating terrorism and whether it falls within the purview of the provisions of the Charter of the United Nations (UN Charter) on self-defence. The third explores the difficulties in classification of the fight against terrorism as a precur-sor in determining which regime of law is to be applied. The fourth explores the linkage between refugee law and terrorism. The last addresses what the author considers to be most important fallback and that is the relationship between ter-rorism and human rights. The paper concludes that modification and balancing will be vital to ensure the ‘fight against terrorism’ respects the rule of law.

International criminal law and terrorism

Defining terrorism

Internationally, there is no satisfactory and generally accepted definition of terrorism.2 This is fundamentally due to the fact that unlike ordinary crimes, terrorism has an ideological coloration. Depending on one’s point of view, a perpetrator could be classified as a hero, a normal criminal or a terrorist.3 Mostly, international conventions have dodged the complex task of defining terrorism. However, different countries have specific legislations criminalising various acts of terrorism. Amidst these complexities, this article focuses on how terrorism fits within the sphere of international criminal law; and finally whether acts of ter-rorism fit in other categories of international crimes such as war crimes, crimes against humanity and genocide.

Terrorism as an international crime

Terrorism was under consideration for inclusion as an international crime during the discussions leading to the Rome Conference that culminated in the adoption of the Rome Statute of the International Criminal Court (Rome Stat-ute). However, terrorism was not incorporated into the Rome Statute mainly because there was no general agreement of what terrorism entails.4 Acts of ter-ror, however, are crimes that have time and again shocked the conscience of

2 De Than C and Shorts E, International criminal law and human rights, Sweet & Maxwell, London, 2003, 232.

3 De Than and Shorts, International criminal law and human rights, 232.4 The Rome Conference regretted that, ‘no general acceptable definition of the crimes of terrorism

and drug crimes could be agreed upon for the inclusion, within the jurisdiction of the Court.’ See Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Done at Rome On 17 July 1998 (UN Doc. A/CONF.183/10).

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A critique of the international legal regime applicable to terrorism

Strathmore Law JournaL, auguSt 2016

humanity.5 Despite the lack of a widely accepted definition of terrorism, the international community is optimistic that those who the bear responsibility of harming civilians will not go scot free. Indeed, when acts of terror are committed within the context of an armed conflict there is a possibility that they can amount to war crimes if they fulfill the necessary elements.6 Similarly, acts of terror can amount to crimes against humanity as well as genocide. In the same breath, state excesses in combating terrorism risk falling within the categorisation of crimes against humanity.7

Acts of terrorism as crimes against humanity

Acts of terror committed systematically or in a widespread manner directed against a civilian population may amount to crimes against humanity.8 Sporadic acts may not fit into this category but singular acts of a serious magnitude may fit in the definition.9 The number of victims involved could be an important in-dicator of whether the crimes committed reach the threshold of crimes against humanity.10 These acts may fall within the category of murder, torture, inhumane acts, among others,11 whether done in peace time or in time of war. Reiterating this position, the Prosecutor of the International Criminal Court (Prosecutor) concluded that acts of terror committed by the Islamic State of Iraq and Syria

5 Some of the 21st Century acts of terror that have had a huge impact on humanity include; the 11 September 2001 twin towers attack in the USA; the Westgate Mall attack and the Garissa University College attack in Kenya; see Institute for Economics and Peace, ‘Global terrorism index 2014: Mea-suring and understanding the impact of terrorism’2014

http://www.visionofhumanity.org/sites/default/files/Global%20Terrorism%20Index%20Re-port%202014_0.pdfon 19 September 2015.

6 Article 8(2), Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90.7 The US has faced immense criticism of its counter-terrorism efforts. See Paust J, Beyond the law: The

Bush administration’s unlawful responses in the “war” on terror, Cambridge University Press, New York, 2007. He explains how the USA had to embark on what he calls ‘dirty war’ in its quest to counter terrorism. This involved breach of international laws as well as human rights law. Kenya has also come under sharp criticism with allegations of extrajudicial killings and forced disappearance. See Human Rights Watch, ‘Kenya: Killings, disappearances by anti-terror police; donors should suspend support for abusive units’ 18 August 2014, https://www.hrw.org/news/2014/08/18/kenya-killings-disappearances-anti-terror-police on September 18, 2015.

8 Article 7, Rome Statute of the International Criminal Court, defines crimes against humanity to encom-pass acts such as murder, extermination, enslavement, deportation or forcible transfer of popula-tion, torture, rape among other atrocities.

9 See Perisic P, ‘Impermissibility of Targeted Killings in the War on Terror’ The 10th International Academic Conference, Vienna, 3 June 2014.

10 It is estimated, from media reports, that almost 3000 people perished in the 11 September 2001 Al-Qaeda attack in New York while there were many non-fatal injuries, 67 people reportedly died in the Westgate Mall Attack and 148 students and staff of Garissa University College were reported to have died; see Institute for Economics and Peace, ‘Global terrorism index 2014’.

11 Article 7, Rome Statute of the International Criminal Court.

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(ISIS) amounted to crimes against humanity despite the International Criminal Court (ICC) lacking territorial jurisdiction.12 The many civilian deaths resulting from terrorism may bring certain acts of terrorism within the purview of crimes against humanity.

Acts of terrorism as war crimes

The Rome Statute has defined war crimes as ‘serious violations of the laws and customs applicable in international armed conflict’ and ‘serious violations of the laws and customs applicable in an armed conflict not of an international character.’13 It is accepted that this definition has been established through state practice and has achieved the status of customary international law.14 For terror-ist acts to be classified as war crimes, they must have occurred within the context of an armed conflict whether international or non-international. An internation-al armed conflict is considered to take place whenever there is resort to using force between states.15 On the other hand, a non-international armed conflict is said to take place ‘whenever there is […] protracted armed violence between governmental authorities and organised armed groups or between such groups within a state.’16 Further, both the International Criminal Tribunal for Rwanda (ICTR) Statute and the Special Court for Sierra Leone (SCSL) Statute contain references to terrorist acts within the context of an armed conflict.17 They outlaw the deliberate targeting of civilians.

Acts of terrorism as genocide

The Convention on the Prevention and Punishment of the Crime of Gen-ocide (Genocide Convention)18 and the Rome Statute define genocide as encom-passing acts resulting in serious bodily or mental harm to members of a group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to pre-

12 See, International Criminal Court, ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the alleged crimes committed by ISIS’ ICC Weekly Update #239, 6-10 April 2015, 3. The report indicates that ISIS is alleged to have committed mass executions, sexual slavery, rape and torture, all of which fall within the definition of crimes against humanity.

13 Article 8, Rome Statute of the International Criminal Court.14 See International Committee of the Red Cross, ‘Customary international humanitarian law’ https://

ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156 on 10 August 2016.15 The Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdic-

tion, IT-94-1-A, 2 October 1995, para 70.16 Prosecutor v Tadic (Defence Interlocutory Appeal).17 Article 3(d), Statute of the Special Court for Sierra Leone, 16 January 2002, 2178 UNTS 138 and Article

4 (d), Statute of the International Tribunal for Rwanda, 25 May 1993, 82 UNTS 280.18 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277.

25



vent births within the group; and forcibly transferring children of the group to another group.19 However, for these acts to be deemed as genocide, the mental element of intending to destroy the whole or in part, a national, ethnical, racial or religious group, is a precondition. Therefore, in relation to terrorism, this can result in cases where the fight against terrorism has a religious or ethnic colora-tion. Nevertheless, at times, they can be coalesced into genocidal terrorism.20 If classified as genocide, terrorism can be the subject of ICC trial and also, the in-ternational community’s exercise of universal jurisdiction. Recently, a group that has fashioned itself as the Islamic State of Iraq and the Levant (ISIL), whose activities are considered to amount to terrorism,21 has enslaved, killed or other-wise displaced the Yazidi – a minority community in Iraq.22 There are compelling reasons to classify these acts as genocide.23

Terrorism and use of force; justification

International law lays down a prohibition against the use of force between states as expressed in Article 2(4) of the UN Charter. This prohibition has at-tained the status of jus cogens.24 However, the UN Charter allows two exceptions to the prohibition against the use of force. First, under Chapter VII, the UN Security Council (UNSC) can allow for the use of force in extraneous circum-stances to restore international peace. Secondly, Article 51 allows for use of force in the exercise of a state’s inherent right of self-defence. Increasingly though, invoking the latter justification has been marred with controversies since not every instance of the use of force against a state is deemed to be an armed at-tack, under Article 51. Escalating this controversy is the fight against terror that is often a hit-and-run scheme with no direct nexus with a responsible state. A third exception will be in situations where a state consents to such an invasion.25

19 Article 2, Convention on the Prevention and Punishment of the Crime of Genocide and Article 6, Rome Statute of the International Criminal Court.

20 See Presbyterian Church of Sudan v Talisman Energy, Inc. 244 F. Supp. 2d 289 (SDNY 2003). In this case, the Canadian firm was sued for facilitating genocidal terrorism.

21 United Nations Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the human rights situation in Iraq in the light of abuses committed by the so-called Islamic State in Iraq and the Levant and associated groups, 13 March 2015.

22 ‘Yazidi Attacks may be genocide says UN’ BBC News, 19 March 2015 http://www.bbc.com/news/world-middle-east-31962755 on 18 September 2015.

23 ‘Yazidi Attacks may be genocide says UN’.24 See Green JA, ‘Questioning the peremptory status of the prohibition of the use of force’ 32 Michi-

gan Journal of International Law, 2(2011).25 See Deeks AS, ‘Consent to the use of force and international law supremacy’ 54 Harvard International

Law Journal, 1(2013).

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Use of force and UN resolutions

With an absolute provision mandating the UNSC to invoke force in restor-ing international peace and security, it is important to examine the impact of this decree in fighting terrorism. Perhaps, in the 1990s, one would have doubted whether terrorism could attain the attention of the UNSC. However, since the ‘9/11’ attacks, the debate has focused increasingly on whether terrorist attacks give rise to the right of self-defence or are compelling enough to allow the UN to invoke force to maintain peace.26 Vide UNSC Resolution 1368 it might be argued that the UNSC implicitly conferred on the US the right of self-defense in its pursuit of the Al Qaeda and affiliate groups in Afghanistan. If this is the case, other questions such as how the UNSC permits such actions will follow.27 Whereas subsequent resolutions have stated authoritatively that support for ter-rorists in the form of allowing the use of a state’s own territory for planning and training for terrorist actions may necessitate use of force,28 there is still a grey area as to the limits of the use of force and when the threat will be considered neutralised.29 Drawing from the UN resolutions, support for terrorism or allow-ing the use of a state’s territory by terrorists can be deemed contrary to interna-tional law thus forming an exception for the UN Charter’s prohibition against the use of force.30 Nevertheless, for purposes of consistency and predictability of international law, where a resolution allows use of force against a state, it should be explicit and case specific.

Use of force as self-defence

Provided in Article 51, it has always been argued that recognition of a state’s right to self-defence was an appreciation of the pre-UN Charter situation.31 If this is the case, issues with regards to its scope will arise.32 Combating terrorism is not a carte blanche. Often, terrorists operate parallel to states’ armed forces.

26 Ulfstein G, ‘Terrorism and the use of force’ 34 Security Dialogue, 2 (2003), 156.27 See Ulfstein, ‘Terrorism and the use of force’.28 UNGA, Declaration on measure to eliminate international terrorism, UN A/RES/49/60 9 December 1994;

UNGA, Declaration on principles of international law on friendly relations and co-operation among states in ac-cordance with the Charter of the United Nations, UN A/Res/2625(XXV) 24 October 1970, lays down that member states shall not tolerate the use of their territory for terrorist acts.

29 See Arend AC, ‘International law and the preemptive use of military force’ 26 The Washington Quar-terly, 2 (2003).

30 See Ulfstein, ‘Terrorism and the use of force’.31 Arend, ‘International law and the preemptive use of military force’.32 This debate extends to interrogate whether the operation of the UN statute mandates some limita-

tions of this right. See Arend, ‘International law and the preemptive use of military force’.

27



Therefore, there is a requirement that the level of force involved be of a certain magnitude. In the Nicaragua case, the International Court of Justice (ICJ) exam-ined the question of whether the United States of America (USA) was respon-sible for acts performed by the contras in Nicaragua. One of the ICJ’s findings was that border incidents could not be deemed to constitute an armed attack upon the state.33 The ICJ held that ‘substantial involvement’ in sending irregular forces into another country may be deemed an armed attack giving rise to the right of self-defence.34 Applying these standards for terrorists, there must be a substantive connection between them and the harbouring state. Also, there will be need to ensure the imminence of a threat which is often difficult to ascertain in hit-and-run terrorist attacks.

These dynamics in invoking the right to self-defense seem to have neces-sitated the rise of preemptive or anticipatory self-defense. Though not acknowl-edged by the UN Charter, it is often claimed to fall under the broad inherent right of self-defense. The exercise of the right to self-defense in post ‘9/11’ has posed serious challenges regarding legal justification. Increasingly, the USA’s exercise of the right to self-defence in preemptive strikes against alleged terrorists after the attacks of 11 September 2001 has gained approval both by NATO and a large number of other states in the world.35 This approach, popularly known as the ‘Bush Doctrine’, is gaining notoriety within states in defence of their citizens out-side their borders. Kenya’s incursion into Somalia in pursuit of Al Shabaab prior to joining the African Union Mission in Somalia is a closer example of the propa-gation of this doctrine. Further, the US continues to offer air support through the use of drones in Somalia in the fight against Al-Shabaab. Is there sufficient evidence therefore at the moment to conclude that customary international law in regard to self-defence and particularly anticipatory self-defence has changed?

Even though pre-dating the UN Charter, the 1837 Caroline case, remains of great importance in this discourse. Here, the US Secretary of State formulated the ‘Caroline test’ requirements of burden of proof, immediacy, necessity and

33 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, 103.

34 Military Activities in Nicaragua, para 195.35 The North Atlantic Treaty Council (2001) resolved on 12 September 2001 that if the attack against

the USA ‘was directed from abroad’, this should be deemed to trigger collective self-defence under Article 5, North Atlantic Treaty, 4 April 1949, 34 UNTS 243. On 2 October 2001, North Atlantic Treaty Organisation’s Secretary General announced that, on the basis of information provided by the USA, the NATO Council had ascertained that the attack ‘was directed from abroad’. See also the resolution passed by the foreign ministers of the member-states of Inter-American Treaty of Reciprocal Assistance, 2 September 1947, 21 UNTS 77, on 21 September 2001, which declared that the attacks were to be considered as ‘attacks against all American states’.

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proportionality.36 Necessity and proportionality have been reiterated in the Nicara-gua case37 and in the ICJ’s advisory opinion on the legality of the threat or use of nuclear weapons (the Nuclear Weapons case).38 Whereas it is not within the scope of this paper to explore whether counter-terrorism efforts across state borders have satisfied the Caroline test or whether customary international law has expanded the scope of self-defense, it is without doubt that states are treading on dangerous ground by opening floodgates in ignoring the restrictions on the use of force in international law.39 This may in itself constitute a threat to inter-national peace and security or be indicative of state practice necessitating the realignment of international law.

Consented use of force

Perhaps a new justification, mostly in the fight against terrorism, is upon consent by a state. It is arguable that there are sound equitable grounds for states to be able to use force in another state if that state does not have the will or abil-ity to address acts of terrorism originating within its own territory.40 However, such an invasion can be justified once the regime in force supports or consents to the invasion.41 Without such consent, a state cannot claim an express right of self-defense against any other state that does not take sufficient steps to com-bat terrorism within its territory. Controversies could emanate on determining sufficient steps considering the economic and technological disparities between states. Therefore, unless invited or supported by the state concerned, the point of departure must always be restricted to Article 2(4) of the UN Charter and its narrow exceptions. This exception seems to be the only one independent of the UNSC’s politics in justifying the use of force.

36 The Caroline v United States 11 US 496 (1813).37 Military Activities in Nicaragua, para 176.38 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para 41.39 In the advent of the Charter of the United Nations, 26 June 1945, 1 UNTS XVI, cases such as the

Cuban missile crisis, the 1967 six-day war, and the 1981 Israeli attack on the Osirak reactor in Iraq, NATO and US actions against Yugoslavia in Kosovo in 1999 are among the cases where force has been used outside the Charter of the United Nations.

40 Vöneky SNU, ‘Response – the fight against terrorism and the rules of international law – comment on papers and speeches of John B. Bellinger, Chief Legal Advisor to the United States State Depart-ment’ 8 German Law Journal, 7 (2007), 751.

41 For example Kenyan Mission in Somalia. See ‘Universal TV: Somalia PM stated that Kenya has the right to fight Al Shabaab inside Somalia’ Amisom Daily Media Monitoring,26 October 2011

http://somaliamediamonitoring.org/26-oct-2011-daily-monitoring-report/ on 11 August 2016.

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International humanitarian law and terrorism

Within the purview of international humanitarian law (IHL), terrorism is only fathomable where such acts occur as part of an armed conflict.42 Once an armed conflict is identified, it necessitates a further distinction between an in-ternational armed conflict and a non-international armed conflict. Even though IHL does not provide a definition for terrorism, it prohibits most acts committed in armed conflict that would commonly be considered ‘terrorist acts’ if they were committed in peacetime.43 Additionally, where the fight against terrorism meets the threshold of an international armed conflict or non-international armed con-flict, IHL will accord combatants minimum guarantees.

Combating terrorism within the context of armed conflict

Common Article 3 to the Geneva Conventions of 1949 assumes that an ‘armed conflict’ exists where the situation reaches a level that distinguishes it from other forms of violence to which international humanitarian law does not apply, namely ‘situations of internal disturbances and tensions, such as riots, iso-lated and sporadic acts of violence and other acts of a similar nature’. Further, the Tadic case44 puts forth the requirement of organisation and intensity. All these are likely to be above the reach of most contemporary terrorist incidents. How-ever, where it results in protracted violence as in the case of Afghanistan, Soma-lia and Syria, such a classification is possible. Also, with foreign states taking part in the fight against terrorism, it does not escape the possibility of being classified as an international armed conflict.

Fundamentally, the IHL principle of distinction entails that persons fight-ing in armed conflict must at all times distinguish between civilians and combat-ants and between civilian objects and military objectives.45 All attacks not direct-ed against combatants or military objectives are deemed ‘indiscriminate attacks,’ thus prohibited.46 This principle also has implications on the means of warfare selected, if they cannot target a specific military object. Mostly, terrorists target civilians and civilian installations, thus outrightly violating this principle. Howev-

42 Article 2 and Article 3 Geneva Conventions of 12 August 1949.43 These include indiscriminate attacks on civilians, disproportionate attacks among others.44 The Prosecutor v Dusko Tadic, Judgment, IT-94-1-T, 7 May 1997, para 561-568.45 Article 52, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of

Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.46 Article 51(4), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection

of Victims of International Armed Conflicts (Protocol I).

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er, response of the state should not be disproportionate. Humanitarian law, once applicable, should be adhered to regardless of whether the other party complies. Another cardinal principle is that of proportionate attacks whose aim should be to neutralise the threat posed by an adversary.

Beyond these principles, IHL also proscribes ‘measures of terrorism’ or ‘acts of terrorism.’ Additional Protocol II prohibits ‘acts of terrorism’ against persons not or no longer taking part in hostilities.47 This proscription aims to highlight individual criminal accountability and protect against collective punishment and ‘all measures of intimidation or of terrorism.’48 Additionally, ‘acts or threats of violence with the primary purpose of spreading terror among the civilian population’ are also strictly prohibited under IHL.49 This is basically aimed at ‘attacks that aim specifically to terrorise civilians, for example campaigns of shelling or sniping at civilians in urban areas.’50 Finally, hostage-taking and use of civilians as human shields is prohibited by IHL.51

Challenges of applying IHL

Many contemporary armed conflicts are associated with amorphous groups operating across porous borders of two or more states.52 This means that one state or many states find themselves battling a group that operates across their borders. A closer example of this is the Al Shabaab that operates mainly in So-malia but has carried out attacks in Kenya and Uganda.53 Armed conflicts in the context of combating terrorism are not the traditional conflicts that are easy to classify. The following challenges attend efforts towards classification.

47 Article 4(2)(d), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.

48 Article 33 and 4(2), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, states that, ‘Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.’

49 Article 51(2), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and Article 13 (2), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).

50 Article 51(4), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), provides: ‘Indiscriminate attacks are prohibited’; Rule 11, Customary International Humanitarian Law Rules.

51 Article 34, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention); Article 51(7), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I).

52 Organisation for Economic Co-operation and Development, Improving international support to peace processes: The missing piece, conflict and fragility, OECD Publishing, Paris, 2012, 19.

53 Stanford University, ‘Mapping militant organizations: Al Shabaab’ http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/61 on 10 August 2016.

31



First, states are reluctant to admit that acts of terrorism within their bor-ders have reached the threshold of an ‘armed conflict.’ In the Tadic case, the ICTY determined that an armed conflict occurs when there is ‘…protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.’54 With regard to the issue of protracted armed violence, the terrorist attacks in Kenya, for instance the Westgate Mall attack, lasted three days and involved both the elite paramilitary unit of the Kenya Police Service and the military.55 Are these indications that there was an existing armed conflict? Some commentators suggested that the involvement of the military rather than the police indicates the existence of an armed conflict.56 My view would be that taking every situation where the military is involved as a situation of existence of an armed conflict would be an exaggeration. Kenya, for instance, has seen increased use of military in law enforcement to assist the police efforts, but within the strict parameters of respect for human rights.57 The military’s role in many states is not restricted to protection against exter-nal aggression but in disaster management and providing back-up response to emergency situations that do not provide a chance to evaluate whether an armed conflict is in place.58

Secondly, the aspect of organisation as enumerated in the Tadic case implies that the group must have some command structure in addition to the criteria under Article 1 of Additional Protocol II. Additionally, these groups ought to conduct their operations in accordance with IHL. This criterion is a tall order for suspected terrorists groups whose activities, targeted at civilians, are con-trary to humanitarian laws; they neither wear a distinctive insignia nor carry arms openly.59 Mostly, they prefer fighting amidst civilians in order to delay or subvert

54 Prosecutor v Tadic (Judgment), para 561.55 Kenya National Assembly, Report of the joint committee on administration and national security; and defence

and foreign relations, on the inquiry into the Westgate Mall terror attack, and other terrorist attacks in Mandera in North Eastern and Kilifi in the Coastal Region, 2013.

56 Schindler D, ‘The different types of armed conflicts according to the Geneva Conventions and Protocols’ 163 Recueil des Cours (1979), 147. The author suggests that involvement of the military is a stronger indicator of existence of an armed conflict. He states: ‘The hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces…’(Emphasis added).

57 Articles 241(3)(b) and (c), Constitution of Kenya (2010), for example, require that where the defence forces are deployed internally, they should report to the National Assembly in the case of emergency and disaster situations, and seek the approval of the National Assembly in the case of restoring peace and stability.

58 See, for example, Article 241(3)(b), Constitution of Kenya (2010), which provides that: ‘The Defence Forces shall assist and cooperate with other authorities in situations of emergency or disaster…’.

59 Bhuta N, ‘States of exception: Regulating targeted killing in a “global civil war”’ in Alston P and

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retaliatory measures.60

Thirdly, problems stem from counter-terrorism activities that occur beyond states borders. Difficulties may arise in respect of legal categorisation of those ‘terrorists’ taking a direct part in hostilities especially if they are acting in proxy or alongside a state that is harbouring them.61 States tend to take advantage of legal black holes in respect of the status of those captured which, mostly means denying them the ‘prisoner of war’ status.62 In some instances, it is difficult to classify a war as that of national liberation.63

With these challenges, it is without doubt that human rights law (as discussed below) provides better protection, and states must be willing to conduct counter-terrorism activities while guaranteeing suspected terrorists the minimum guarantees under national and international human rights law.64

Refugee law

To win against terrorism, it is a precondition that all methods resorted to must be premised on the rule of law.65 Failure to which, states end up exacerbating violence as terrorists find sympathisers who they recruit.66 As states wrestle with balancing between national security and international obligations, the UNSC has been at the fore-front urging them to imple-ment counter-terrorism measures that safeguard the status of refugees.67 From the refugee law perspective, the principle of non-refoulement has been contentious in its application

Macdonald E (eds), Human rights, intervention and the use of force, Oxford University Press, Oxford, 2008, 265.

60 For example in Somalia, before being forced out of Mogadishu, Al-Shabaab insurgents used the high population in the by conducting attacks from various parts of the city which exposed the civilians to attacks by the TFG/AMISOM forces thus delaying the mission. See Human Rights Watch and Harvard Law School’s International Human Rights Clinic, Documentation of the Use of Explosive Weapons in Populated Areas, November 2011http://www.hrw.org/sites/default/files/related_material/2011_armsother_EWIPA_0.pdf on 23 July 2015.

61 Vite S, ‘Typology of armed conflicts in international humanitarian law: Legal concepts and actual situations’ 91 International Review on The Red Cross, 873(2009).

62 Steyn J, ‘Guantanamo Bay: The legal black hole’ Twenty-Seventh FA Mann Lecture, 25 November 2003, 12.

63 For example, the militias advancing the Islamic State war in Syria among other states could claim it is a war on liberation.

64 Article 14, International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.65 Barak A, The judge in a democracy, Princeton University Press, Princeton, 2006, 287.66 Khalil L, ‘Authoritarian and corrupt governments’ in Forest J (ed), Countering terrorism and insurgency in

the 21st century: International perspectives, vol 2, Praeger Security International, London, 2007, 85.67 UNSC S/RES/1373 (2001) Threats to international peace and security caused by terrorist acts, urges

states to prevent the movement of terrorists by implementing effective border controls and securing the integrity of identity papers and travel documents. Further, it reiterates the need to uphold the Convention Relating to the Status of the Refugees, 14 December 1950, 189 UNTS 150.

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and at times abused.68 In addition, states have adopted restrictive legislations that limit the right to asylum.69

Non-refoulement and challenges

Non-refoulement is a universally acknowledged principle. It is expressly pro-vided for in human rights treaties.70 Both regional and domestic courts have in-terpreted the right to life and freedom from torture to include prohibition against refoulement.71 States have an obligation to conduct any transfer of detainees in a manner that is transparent and consistent with human rights and the rule of law. Some states have reportedly extradited, expelled, deported or otherwise trans-ferred foreign nationals, some of them terror suspects, to their countries of ori-gin or to countries where they face a risk of torture or ill-treatment, in violation of the principle of non-refoulement.72

A further interpretation of the principle includes an obligation on states not to expose individuals to ‘the danger of torture or cruel, inhuman or degrad-ing treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.’73 International law has established absolute prohibition of refoulement if there is a risk of torture or other cruel, inhuman or degrading treatment. The principle of non-refoulement prohibits not only the re-moval of individuals but also the mass expulsion of refugees.74

States have an obligation to uphold the right to non-refoulement.75 In em-phasising the importance of this right, the providing clause does not allow for reservations; that is, contracting states cannot place a reservation on this fun-

68 Office of the United Nations High Commissioner for Human Rights, Human rights, terrorism and counter-terrorism, Fact sheet No.32, 2008.

69 Office of the United Nations High Commissioner for Human Rights, Human rights, terrorism and counter-terrorism, 18.

70 Article 3, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 De-cember 1984, 1465 UNTS 85, and Article 22(8), American Convention of Human Rights, 21 November 1969, 1144 UNTS 123.

71 R (on the application of) ABC (a minor) (Afghanistan) v Secretary of State for the Home Department [2011] EWHC 2937 (Admin.) (U.K); M.S.S v Belgium and Greece [GC], No. 30696109, ECtHR Judgment of 1 January 2011.

72 Article 33 (1), Convention Relating to the Status of the Refugees, Article 3, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Article 16, International Convention for the Protec-tion of All Persons from Enforced Disappearance, 20 December 2006, 2716 UNTS 3.

73 Article 7, International Covenant on Civil and Political Rights, interpreted in CCPR General Comment No. 20, Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992.

74 Article 12(5), African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217.75 Article 33, Convention Relating to the Status of the Refugees.

Nabil Mokaya Orina


damental clause.76 However, this right is not afforded to persons contemplated under Article 33(2).77 There are only two instances when a state can be relieved of its international obligation under refugee law. First, persons who qualify as refugees may not claim protection under this principle where there are ‘reason-able grounds’ for regarding the refugee as a danger to the national security of the host country; and second, where the refugee, having been convicted of a particular serious crime, is a danger to the host community.78 This can only be exercised when certain fundamental elements are met.79

In its 20th Session, in October 1996, the African Commission on Human and Peoples’ Rights held that the expulsion of Burundi refugees living in Rwanda without opportunity to contest their removal violated their rights under the African Charter on Human and Peoples’ Rights.80 The decision by Kenya to expel refugees of Somali origin from Daadab Camp as a counter-terrorism measure has likewise not escaped criticism.81 Also, the international appeal on European nations to admit refugees from Syria is a clear indication that regardless of how complex the fight against terrorism might be, the law must be upheld.

Human rights

Human rights can be described as universal values and legal guarantees that guard individuals and groups against acts predominantly carried out by state agents that interfere with fundamental freedoms, rights and human dignity.82 They are universal in nature and indivisible. Basically, human rights involve re-spect, protection and fulfilment of civil, cultural, economic, political and social

76 Article 33, Convention Relating to the Status of the Refugees.77 Convention Relating to the Status of the Refugees.78 Article 33(2), Convention Relating to the Status of the Refugees.79 These elements are (a) particular serious crime; this entails the commission and subsequent convic-

tion for the said crime, (b) he/she must be convicted by a final judgement; this clause contemplates that only a conviction that is a product of due process meet the threshold, (c) he/she constitutes a danger to the community of the country of refugee; the said refugee must not only constitute dan-ger but this danger should be directed to the host state.

80 Organisation mondiale contre la torture, Association internationale des juristes democrates, Commission internatio-nale des juristes, Union interafricaine des droits de I’Homme v Rwanda, Communications No. 27/89-46/90-46/91-99/93.

81 ‘Alvin Attalo: The ramifications of Kenya’s decision to expel refugees from Dadaab Camp’ OxHRH Blog, July 2016 http://ohrh.law.ox.ac.uk/the-ramifications-of-kenyas-decision-to-expel-refugees-from-dadaab-camp/ on 10 August 2016.

82 Office of the United Nations High Commissioner for Human Rights, Human rights, terrorism and counter-terrorism.

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rights, as well as the right to development.83 Terrorism has a direct impact on the enjoyment of a number of human rights as it aims at the very destruction of human rights, democracy and the rule of law. The disparaging impact of ter-rorism on human rights and security has been recognised at the highest level of the UN.84

International and regional human rights law prescribe that states owe a duty to protect individuals under their jurisdiction from terrorist attacks, recognised as part of the states’ obligations to ensure respect for the right to life and the right to security.85 In fulfilling their obligations under human rights law, to protect the life and security of individuals under their jurisdiction, states have a right and a duty to take effective counter-terrorism measures, to avert and deter future ter-rorist attacks. Additionally, states should bring to justice those responsible for such acts. On the other hand, the universality of human rights calls for the re-spect of human rights even for those accused of the most egregious offences in society.86 In essence, suspects of terrorism must be accorded their rights such as due process, fair hearing, prohibition of torture and other cruel, inhuman or degrading treatment or punishment and prohibition against non-refoulement among others.87

This means therefore that as part of states’ duty to protect individuals with-in their jurisdiction, all measures taken to combat terrorism must in themselves, conform with states’ obligations under international law, in particular interna-tional human rights, refugee and humanitarian law. Terror cannot be fought with

83 Office of the United Nations High Commissioner for Human Rights, Human rights, terrorism and counter-terrorism.

84 See UNSC S/RES/1373(2001) Threats to international peace and security caused by terrorist acts; UNSC S/RES/1377(2001)Threats to international peace and security caused by terrorist acts; UNGA, Human rights and terrorism, A/RES/48/122, 20 December 1993; UNGA, Measures to elimi-nate international terrorism, A/RES/49/60, 9 December 1994; UNGA, Human rights and terrorism, A/RES/49/185, 23 December 1994; UNGA, Human rights and terrorism, A/RES/50/186, 22 Decem-ber 1995; UNGA, Human rights and terrorism, A/RES/52/133, 12 December 1997; UNGA, Mea-sures to eliminate international terrorism, A/50/160, 3 July 2001; UNGA, Human rights and terrorism, A/RES/58/174, 22 December 2003; UN Commission on Human Rights, Human rights and terrorism, E/CN.4/RES/2001/23, 23 April 2001; UN Commission on Human Rights, Human rights and terrorism, E/CN.4/RES/2004/44, 19 April 2004; UN Human Rights Council, Protection of human rights and fundamental freedoms while countering terrorism: mandate of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Resolution 6/28, 14 December 2007; UN Human Rights Council, Protection of human rights and fundamental freedoms while countering terrorism, Resolution 7/7, 27 March 2008.

85 Article 30, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).86 Article 14, International Covenant on Civil and Political Rights.87 Pati R, Due process and international terrorism: An international legal analysis, Martinus Nijhoff Publishers,

Leiden, 2009, 288.

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terror. While noting the tension that exists between combating terrorism and state security, the retired Israeli Judge Aharon Barak urges states to distinguish themselves from terrorists by upholding the rule of law.88 This contribution re-iterates this position also as states endeavour to maintain national and interna-tional peace and security and human rights.

Conclusion

Acts of terror continue to inflict untold suffering on civilians throughout the world. On the other hand, the international legal regime for combating terror is almost comprehensive but only in an ideal situation. Contemporary terrorism and conflicts associated with it present challenges to states. In an attempt to defend the citizenry against acts of terror, states find themselves acting outside the realm of the law. This article reaches the conclusion that states should co-operate within the various spheres of international law to ensure the maximum protection of victims of terrorism especially refugees and displaced persons. In addition, measures should be taken to ensure accountability for those responsible through international criminal law by furthering the discussion to establish ter-rorism as a crime sui generis and, lastly, states have a chance to foster more respect for human rights by respecting the rights of those suspected of terrorism.

88 Barak, The judge in a democracy, 286.


Regulating terrorism before the act of terror: A comparative study Frederick B Fedynyshyn*

Abstract

In light of the growing risks that terrorism presents to civilised society, Western

governments have adopted a broad range of laws and administrative regulations

designed to thwart terrorists before they can commit acts of terror. Beyond mere

conspiracy or attempt, these laws have sought to proscribe activity that exists as a

stand-alone offence but that acts as a proxy for the sorts of offences that constitute

true terror activity. This article serves to examine these various approaches. It

groups these approaches into four categories: prohibitions on membership in

terror organisations; intangible support to terror organisations; restrictions on

travel to areas that have terror groups operating openly; and money laundering

and other financial crimes tied to the financing of terror organisations. It then

identifies a single example within each group to use as a case study to explore the

contours of the specific approach, while tying the example to larger trends within

Western countries’ legal systems. Finally, this article considers the implications

for countries considering adopting one or more of these approaches, including the

ways that multiple approaches can work in tandem. The article does not make

specific recommendations, but rather recognises that each country’s government

must consider the benefits and costs of adopting these approaches carefully and

with an eye to both its security and its society.

JD,HarvardLawSchool,2008.

Focus on terrorism – commentary

Frederick B Fedynyshyn


Introduction

When a terrorist attack occurs or is thwarted at a late stage in its develop-ment, most countries have well-developed legal mechanisms for prosecuting or otherwise punishing both the operational terrorists and those who have sup-ported and assisted them. In seeking tools to allow legal intervention at earlier stages in the development of terrorist plots, however, many Western countries have begun to adopt statutes and regulations that prohibit activities further and further removed from the actual terror event. These efforts include prohibiting membership in certain terrorist organisations, criminalising intangible support and other abstract forms of assistance to terrorist organisations without refer-ence to a specific planned attack, restricting travel to certain countries or areas under the control of terrorist organisations, and regulating attempts to finance terrorist organisations.

Each of these efforts – which often are used in tandem – uses status as a proxy for action. Put another way, these efforts seek to punish individuals for their relationships with terrorist organisations rather than for any act of terror, actual or inchoate. By doing so, these efforts permit the government to intervene to punish individuals for supporting terrorism in more abstract forms, rather than punishing individuals for conducting or supporting a specific terror attack. The goal, of course, is to stop a terrorist plot at its earliest stages and reduce the risk that the plot comes to fruition. At the same time, by moving further away from the actual act of terrorism, these efforts can impose penalties based on ephemera, ensnaring individuals whose connections to acts of terrorism are either non-existent or so tenuous as to go beyond the bounds that society recog-nises as meriting punishment.

This article summarises the various statutes and regulations that countries have taken to implement this approach. This article then discusses the effect of each of these efforts in preventing terrorist attacks as well as the risks that these efforts present, including prohibiting otherwise lawful activities unrelated to ter-rorism. Last, this article considers these efforts as a whole and makes recommen-dations for the effective use of these laws and regulations for countries seeking to use the law to prevent acts of terror from occurring.

Legal restrictions

Combating terrorism is one of the great challenges that the world faces today. In 2013 alone, acts of terror killed almost 18,000 people in countries as

39

Regulating terrorism before the act of terror: A comparative study


diverse as Syria, Iraq, and Afghanistan to the United States of America (USA), where Tamerlan and Dzhokhar Tsarnaev killed three and injured dozens at the Boston Marathon, and Nairobi, Kenya, where al Shabaab attackers killed nearly seventy people at the Westgate Mall.1

Countries have always had at their disposal the laws and regulations neces-sary to punish specific acts of terror – murder, assault, kidnapping, and the like. Further, countries possess legal theories prohibiting inchoate offences, such as intent, conspiracy, or aiding and abetting, which allow authorities to prosecute those that facilitate a terror attack. But as the threat of terrorism grows and the harm it causes rises, governments have sought to expand the range of criminal and regulatory options available to them to punish terrorists in situations where there is no specific or concrete terrorist act.

Membership

The USA and the western European nations historically have taken different approaches to criminalising mere membership in an organisation, and these dif-ferences have affected how these countries have used their legal authority to pro-hibit membership in terrorist organisations. In the USA, attempts to criminalise membership in the Communist Party and various communist organisations were ultimately rejected by the USA Supreme Court (Supreme Court), which ruled them unconstitutional.2 In Europe, however, prohibitions on membership in the Nazi Party or Nazi-affiliated hate groups have been incorporated into criminal law.3 As a result, European countries have been able to adopt laws that restrict membership in terrorist organisations, while the USA has not taken this path.

The USA Constitution prohibits criminalising or otherwise taking an ad-verse Government action against someone for membership in an organisation. Fearing post-second world war communist influence in USA politics and society, Congress passed the Smith Act, which, among other things, prescribed criminal sanctions for anyone who ‘becomes or is a member of, or affiliates with, any such society, group, or assembly of persons [that seeks to overthrow the federal

1 United States Department of State, Country reports on terrorism 2013, April 2014,12, 17 http://www.state.gov/documents/organization/225886.pdf on 16 August 2016; United States De-

partment of State, Country reports on terrorism 2013: Annex of statistical information, April 2014, 3 http://www.state.gov/documents/organization/225043.pdf on 16 August 2016.

2 See, for example, Yates v United States, 354 U.S. 298 (1957).3 See, for example, Verbotsgesetz 1947 (Austria) http://www.ris.bka.gv.at/Dokumente/BgblP-

df/1945_13_ 0/1945_13_0.pdf on 16 August 2016.



government], knowing the purposes thereof.’4 The Supreme Court struck down the application of the statute in two cases decided in 1961, each of which in-volved an appeal from a conviction for violation of the statute by members of the Communist Party: Scales v United States5 and Noto v United States.6 The Supreme Court found ambiguity in the term ‘member,’ and sought to clarify the difference between ‘active’ members and ‘nominal’ members in its two decisions. In doing so, the Supreme Court ascribed to Congress the intention that only active mem-bers are punishable because to do otherwise would raise significant constitutional questions.7

As future guidance, the Supreme Court created a three-part test for judging the constitutionality of any law that penalised membership in an organisation: the Government must prove that an individual (1) is affiliated with a specific group, (2) knows of its illegal objectives, and (3) has the specific intent to further those objectives.8 The Supreme Court upheld the Scales defendant’s conviction under the Smith Act by saying that he was a willing advocate of illegal action and thus punishable as an active member.9 The Noto defendant’s conviction, however, was overturned, because the Government failed to prove that he had any specific intention to further the illegal goals of the Communist Party.10 In Noto, the Su-preme Court warned that statutes criminalising association,

must be judged strictissimi juris, for otherwise there is a danger that one in sympathy with the legitimate aims of such an organisation, but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not neces-sarily share.11

The Supreme Court subsequently expanded this rule beyond criminal stat-utes to more general regulatory provisions. In Baggett v Bullitt,12 it ruled unconsti-tutional a mandatory oath for state employment that required applicants to swear they had never ‘knowingly’ been members of subversive organisations, finding that the language was too ambiguous and risked implicating constitutionally pro-

4 18 USC § 2385.5 367 US 203 (1961).6 367 US 290 (1961).7 Scales v United States, 367 US 203, 222.8 Scales v United States, 227-28.9 Scales v United States, 224.10 Noto v United States, 367 US 299.11 Noto v United States, 299-300.12 377 US 360 (1964).

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tected behaviour.13 Similarly, in NAACP v Claiborne Hardware Co, the Supreme Court unanimously rejected a civil lawsuit that attempted to impose group li-ability following a boycott, finding that the plaintiffs were required to prove in-dividual misconduct.14 As a result of these decisions, the USA has not sought to criminalise direct membership in terrorist organisations.

European countries, however, do not have the same doctrinaire prohibition on laws and regulations that criminalise or otherwise restrict whole organisations or membership in organisations. As just one recent example, the European Court of Human Rights recently upheld a Hungarian Government ban on a far-right group, the ‘Hungarian Guard Association’, for being a risk to public order.15 As a result, European countries have been more active in prohibiting terrorist or-ganisations and individual membership in terrorist organisations. For example, in October 2014, the Swiss Federal Council adopted an Ordinance banning the Islamic State of Iraq and Syria (ISIS), enacted in addition to an existing prohibi-tion on Al Qa’ida.16 The Ordinance prohibits any activities by the organisation in Switzerland and abroad as well as any activities that provide the organisation with support in the form of material or human resources, including propaganda and fundraising campaigns or the recruitment of new members.17 Similarly, in December 2014, Austria outlawed the symbols of both the ISIS and Al Qa’ida.18 It did so by amending its existing statute prohibiting the display of Nazi para-phernalia to encompass these additional symbols.19

13 377 US, 368; See also Elfbrandt v Russell, 384 US 11, 17 (1966) (“Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. Laws such as this which are not restricted in scope to those who join with the ‘specific intent’ to further illegal action impose, in effect, a conclusive presumption that the member shares the unlawful aims of the organization.”).

14 458 US 886, 924 (1982).15 Vona v Hungary, App No 35943/10, ECtHR Judgement of 9 July 2013, para 60.16 Swiss Federal Chancery, The Federal Council adopts Ordinance banning the Islamic State group and related

organizations, 8 October 2014 https://www.news.admin.ch/message/index.html?lang=en&msg-id=54773 on 16 August 2016.

17 Swiss Federal Chancery, The Federal Council adopts Ordinance banning the Islamic State group and related organizations.

18 ‘Austrian parliament passes anti-terrorist law’ Associated Press, 11 December 2014 http://bigstory.ap.org/article/e3439154475047bbae9c5c749b727bd7/austrian-parliament-passes-

anti-terrorist-law on 16 August 2016.19 ‘Austria bans ISIS terror symbols’ The Local, 12 September 2014 http://www.thelocal.at/20140912/

austria-bans-isis-terror-symbols on 16 August 2016.



Intangible support

While the USA has not taken steps to ban membership in terrorist organi-sations, it did, even prior to the 11 September 2001 attack on the World Trade Centre, criminalise the provision of ‘material support’ to terrorist organisations.20 The statute defines material support to include

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weap-ons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials.21

The statute further defines ‘training’ to mean ‘instruction or teaching de-signed to impart a specific skill, as opposed to general knowledge’ and ‘expert ad-vice or assistance’ to mean ‘advice or assistance derived from scientific, technical or other specialized knowledge.’22 ‘The material-support statute is, on its face, a preventive measure – it criminalises not terrorist attacks themselves, but aid that makes the attacks more likely to occur.’23

The Supreme Court considered the outer bounds of the material support statute in Holder v Humanitarian Law Project,24 a 2010 decision. The case came about after a number of individuals and advocacy organisations affirmatively challenged the statute, asserting that it would interfere with their ability to offer political and humanitarian support to two designated terror groups: the Kurd-istan Workers’ Party (also known as the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE).25 Specifically, the plaintiffs argued that they intended to, with respect to PKK: (1) ‘train members of PKK on how to use humanitarian and international law to peacefully resolve disputes’; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey’; and (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief.’26 The Supreme Court held that the statute would be

20 18 USC § 2339B.21 18 USC§ 2339A(b).‘[E]xpert advice or assistance’ was added to the statute after the September 11

attacks, as part of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act). See also USA Patriot Act, § 805(a)(2)(B), 115 Stat. 377 (2001).

22 18 USC § 2339A. These definitions too were added after the September 11 attacks, as part of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004. See IRTPA, § 6603, 118 Stat. 3762-64 (2004).

23 Holder v Humanitarian Law Project 561 US 1, 30 (2010).24 561 US 1, 30 (2010).25 Holder v Humanitarian Law Project, 4.26 Holder v Humanitarian Law Project, 9. By the time the case reached the Supreme Court, LTTE had been

43



valid if applied to the abovementioned activities. It noted that, even if the sup-port were intended simply for a terrorist organisation’s ‘legitimate’ efforts, it still constituted support that could further the ‘illegitimate’ goals of the organisation, by freeing fungible resources, legitimating the organisation, and causing rifts be-tween the USA Government and foreign partners working against the terrorist organisation.27 Accordingly, the USA could ban this type of material support.

Other nations have followed suit in adopting prohibitions on these abstract, intangible types of support to terrorism. For example, Australia’s Parliament passed the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, 2014 on 30 October 2014.28 The statute created the new offence of ‘advocating terrorism.’29 According to the Attorney General’s Explanatory Memorandum, a person violates the new law ‘if they intentionally counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorism offence and the person is reckless as to whether another person will engage in a terrorist act or commit a terrorist offence.’30 As with the US statute, this law targets abstract support and advocacy, without the need to tie the conduct, directly or even indi-rectly, to a terrorist attack.

Travel restrictions

Recognising the threat presented by the transnational movement of terror-ists, the UN Security Council unanimously adopted Resolution 2178 (2014), call-ing on member states to take steps to prevent the ‘recruiting, organising, trans-porting or equipping of individuals who travel to a state other than their states of residence or nationality for the purpose of the perpetration, planning of, or participation in terrorist acts.’31

defeated by the Government of Sri Lanka, and so the Supreme Court treated arguments relating to LTTE as moot. Holder, 9-10.

27 Holder v Humanitarian Law Project, 25-27.28 Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, 2014 (Australia). http://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/

Result?bId=s976on 16 August 2016.29 Parliament of the Commonwealth of Australia, Counter-Terrorism Legislation Amendment (Foreign Fight-

ers) Bill 2014: Revised explanatory memorandum, October 2014, 5,29 http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/s976_ems_c21ea737-5e59-4cdb-

bceb-7af5e22aa6a9/upload_pdf/398980.pdf;fileType=application%2Fpdfon 16 August 2016.30 Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Commonwealth of Australia), 29.31 ‘Security Council unanimously adopts Resolution condemning violent extremism, underscoring

need to prevent travel, support for foreign terrorist fighters’ United Nations Meetings Coverage and Press Release, 24 September 2014, SC/11580 http://www.un.org/press/en/2014/sc11580.doc.htm on 16 August 2016.



The Netherlands has sought both to prohibit Dutch residents from trave-ling to Syria and to prevent Dutch citizens already engaged in terrorism from re-turning. The Netherlands recently adopted a new provision in its Criminal Code that made it illegal to prepare for or facilitate a terrorist offence.32 Further, in March 2014, the Dutch Minister of Justice took steps to revoke the residency rights of one Khalid K, a prior resident of Almere, the Netherlands, who had travelled to Syria and who appeared in images distributed by ISIS wielding a bloody knife and crouching behind several severed heads.33 The Minister of Jus-tice directed the Dutch Immigration and Naturalisation Service to bar Khalid from returning to the Netherlands for twenty years.34 Of note, the Minister of Justice stated also that, if Khalid were to return, Dutch authorities would con-sider whether to prosecute him for war crimes, making clear that the travel ban preceded any procedural or substantive finding, judicial or otherwise, that Khalid had committed an act of terrorism (rather than, say, simply posing near the bod-ies of those killed by others).35

In what is considered the first trial of its type in Europe,36 in October 2013, a court in Rotterdam convicted two individuals, Mohammed G and Omar H, of preparing to commit murder because they planned to travel to Syria to conduct jihad.37 The Dutch Government prosecuted the two individuals using the new statute, but they were ultimately found guilty of preparation to commit murder and preparation to use explosives, rather than preparation to commit a terrorist offence.38 Still, the Government touted this prosecution as setting the precedent that travel to Syria to engage in jihad is a punishable offence.

Other states have similarly attempted to prohibit travel to regions afflicted by terrorism. For example, Australia’s Foreign Fighters Bill created the new of-

32 Section 134A, Criminal Code (Netherlands), Title V.33 ‘The Syrian fighter from the horrible photos should not be let in to the Netherlands’ Het Laatste Nieu-

ws, 3 April 2014 http://www.hln.be/hln/nl/960/Buitenland/article/detail/1840401/2014/04/03/Syriestrijder-van-gruwelfoto-mag-Nederland-niet-meer-in.dhtml (machine translation) on 16 August 2016.

34 ‘The Syrian fighter from the horrible photos should not be let in to the Netherlands’.35 ‘The Syrian fighter from the horrible photos should not be let in to the Netherlands’. Khalid K. ulti-

mately was killed in Iraq in August 2014. See ‘Maxime Zech: Almere jihadist killed in N. Iraq battle’ NL Times, 18 August 2014 http://www.nltimes.nl/2014/08/18/almere-jihadist-killed-n-iraq-battle/on 16 August 2016.

36 Paulussen C, ‘The Syrian foreign fighters problem: A test case from The Netherlands’ International Centre for Counter-Terrorism, 2 December 2013.

37 ‘Lisa De Bode: Dutch court sentences would-be Syrian rebel fighters’ Al Jazeera America, 23 October 2013 http://america.aljazeera.com/articles/2013/10/23/dutch-court-sentenceswouldbesyrianre-belfighters.html on 16 August 2016.

38 ‘Lisa De Bode: Dutch court sentences would-be Syrian rebel fighters’.

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fence of entering or remaining in a ‘declared area’ in which the Foreign Minister has determined that a terrorist organisation is operating.39 A defendant accused of violating this provision can avoid punishment if s/he can identify legitimate reason/s from among a discreet list provided in the statute and if the Gov-ernment cannot prove beyond a reasonable doubt that the defendant did not travel solely for that legitimate reason.40 Similarly, Canada’s Criminal Code was amended in 2013, pursuant to Bill S-7, the Combating Terrorism Act, to make it a criminal offence for a person to leave or attempt to leave Canada for the purpose of participating in the activities of a terrorist group.41 Also, in November 2014, France adopted a new anti-terrorism statute containing, among other things, a ban on travel by individuals suspected of involvement in terror activities.42

Financing and money laundering

As terror networks become larger, more complicated, and more diffuse, they require more money and more sources of money to operate. This increased need to move money increases the opportunities for government to use exist-ing prohibitions on terror financing and money laundering – prohibitions which nearly every jurisdiction has43 – to combat the illicit flow of money to terror groups. Unlike the other approaches discussed in this article, however, this ap-proach generally has not required new legal authority. Rather, it has involved the novel application of longstanding legal authorities to new fact patterns presented by an increasingly diverse array of circumstances that constitute modern terror networks.

Perhaps the most attenuated case is that of Hana Khan, a young woman from north-west London. In the summer of 2013, Khan sent £1,000 via Western Union transfer to Jafar Turay, a former United Kingdom (UK) resident then lo-

39 Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014(the Commonwealth of Australia), 47.

40 Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, 2014 (Australia).41 Bill S-7, Combating Terrorism Act, 2013 (Canada), ch. 9, § 8 http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=610

6212&File=30#2 on 16 August 2016.42 ‘France: Strengthening the antiterrorism law’ Le Figaro, 4 November 2014http://www.lefigaro.fr/

flash-actu/2014/11/04/97001-20141104FILWWW00329-france-renforcement-de-la-loi-anti terroriste.php (machine translation) on 16 August 2016.

43 Indeed, as of the writing of this article, 187states had ratified the International Convention for the Sup-pression of the Financing of Terrorism, 9 December 1999, 2178 UNTS 197

https://www.unodc.org/documents/treaties/Special/1999%20International%20Convention%20for%20the%20Suppression%20of%20the%20Financing%20of%20Terrorism.pdf on 16 August 2016.



cated in Syria, after he convinced her that he planned to make her his wife and set up home for them in Turkey.44 Khan was arrested, prosecuted, and found guilty of two counts of funding terrorism under the UK’s Terrorism Act of 2000.45 The judge, noting that Khan had acted out of a misguided notion of Turay’s true intentions, sentenced her to 21 months in prison, suspended for two years.46 While the underlying crime, of providing financing to a terrorist organisation, is in and of itself straightforward, the application of the statute to a case such as Hana Khan’s represents an aggressive push by the UK Government to seek to punish behaviour well removed from an actual terrorist attack.

Analysis

As the above examples illustrate, each approach offers a mechanism by which a government can bring its legal regime to bear on individuals that sup-port or facilitate terrorism without needing to tie the illegal behaviour to a spe-cific planned or actualised terror attack. That said, governments must carefully consider whether it is appropriate to enact these types of laws and regulations. Simply because they are helpful in one context does not mean that they will be helpful in other contexts. Because each country is unique, each country’s govern-ment must examine its own status quo legal environment and its own terror threats before adopting any or all of the approaches discussed above.

Governments must consider the costs and the benefits to prohibiting the behaviour discussed above. The intended benefit is of course to combat terror-ism; and by using criminal and regulatory law to ban activities that act as proxies for terrorism, governments can punish potential terrorists before they are in a position to effect an actual terrorist attack. These legal approaches are not risk free, however. First, adopting these approaches increases the chances of abusive prosecutions. Because the statutes and regulations discussed above involve pun-ishing behaviour that is a proxy for, but that is distinct from, an actual terrorist attack, they can be over-inclusive and can be used to bring cases against individu-als who have no true ties to terrorism. These types of provisions can operate well when paired with appropriate prosecutorial discretion, but they often are reliant on dispassionate and uncorrupted prosecutors. Indeed, for this reason, the USA

44 ‘Hana Khan sentenced for helping to fund terrorism’ BBC News, 27 March 2015 http://www.bbc.com/news/uk-england-london-32090088 on 16 August 2016.

45 ‘Hana Khan sentenced for helping to fund terrorism’.46 ‘Hana Khan sentenced for helping to fund terrorism’.

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has not adopted a prohibition on membership in a terrorist organisation – the risks that such prohibitions could be used to prosecute politically unpopular, rather than truly dangerous groups are too inconsistent with USA notions of liberty.

Second, these approaches risk stigmatising populations that are likely to produce terrorists and creating an environment that enhances opportunities for terrorist recruitment. Western European nations in particular have struggled to integrate their Middle Eastern and African immigrant populations, and even if laws of the sort discussed above are not used to persecute these groups, their mere passage and the mere possibility that they could be used in inappropriate ways can fuel resentment – and terror recruitment.

And third, they can distract governments from more pernicious behaviour and redirect scarce government resources from more valuable to less valuable policing methods. Prosecutors and government officials always like to tout their victories, and the legal approaches discussed above create new opportunities for successful ‘terrorism’ prosecutions. Were the resources spent prosecuting the love-struck Ms Khan the best use of the UK Government’s antiterrorism ef-forts? If prosecutors begin looking for easy wins, however, they may focus too much on the behaviour discussed above and shy away from more difficult cases, which often can involve more sophisticated – and therefore more dangerous – individuals.

Governments must consider also how these provisions can work in tandem with one another. For example, restrictions on travel and restrictions on financ-ing can together stem the flow of both soldiers and resources to areas affected by terrorism, limiting the capacity of terrorist organisations to operate. Similarly, restrictions on both money and material support can prevent a terrorist organi-sation from receiving either financial or in-kind support from its supporters. Conversely, a nation need not adopt all of the above approaches. For example, the USA has employed restrictions on money and material support but has not adopted prohibitions on membership or travel. None of these approaches is a silver bullet, but neither is any one necessary for an effective anti-terrorism legal regime.

Further, governments must consider how these provisions will interact with other existing statutes. Many jurisdictions have not adopted legislation along the lines discussed above because they have found it unnecessary. For example, most nations have laws that prohibit actual terror acts, laws that prohibit the funding



of illegal activities, and laws that prohibit transactions designed to obscure the intended use of money. These theories, when linked together, have formed the basis for numerous convictions for terror financing. Also, as discussed above, most jurisdictions have existing legal theories that prohibit crimes of intent, con-spiracy, or aiding and abetting with regard to terrorism. In many cases, such as that of Mohammed and Omar, discussed above, these existing provisions are adequate. A government should adopt some or all of the approaches discussed above only if the existing legal regime is incapable of handling the threat of ter-ror adequately.

There is no universal approach to these issues. Governments should not shy away from considering novel legal approaches that can combat the scourge of terrorism, nor should they reflexively adopt a creative idea that might work in another jurisdiction operating in an entirely different jurisprudential context. Rather, governments must carefully consider the threats that they face from ter-ror and the ways in which the law can best address those specific threats.

Conclusion

Terrorism is a major threat to the peace and security of every country, and the threat is just starting to grow. As governments seek to use the law to protect their citizens from terrorism, they have considered new and novel legal theories to aid them in their attempts to combat terror. Recently, many western countries have adopted statutes and other governmental regulations prohibiting member-ship in certain terrorist organisations, criminalising intangible support and other abstract forms of assistance to terrorist organisations without reference to a specific planned attack, restricting travel to certain countries or areas under the control of terrorist organisations, and regulating attempts to finance terrorist organisations. These efforts seek to prohibit activities that are seen as a proxy for terrorism, rather than prohibiting terrorist acts directly, and as a result they push the limits of liability further and further away from the actual terror attack.

When used wisely, these approaches can be a valuable tool for governments in fighting terrorism. These approaches raise a number of complicated issues, however, both of effectiveness and of propriety. Each country faces unique chal-lenges when it comes to terrorism, and each country’s government must carefully consider how best to use the law to protect its people from terror.


The way forward on counter-terrorism: Global perspectivesAlex P Schmid*

Introduction

There have been thousands of public conferences and closed-door meet-ings on terrorism and counter-terrorism since 11 September 2001. They usually end up with recommendations and then everybody goes home after the group photo has been taken. What happened to all these recommendations? Who has acted upon them and actually implemented them? Who has evaluated them? Were they any good?

Governments have spent billions of dollars on combating terrorism and while there have been some tactical successes here and there, there has not been a strategic breakthrough that has managed to put an end to terrorism. In 2014 alone, 13,463 terrorist attacks took place, killing 32,700 people and wounding another 34,700 while more than 9,400 people were kidnapped or taken hostage in terrorist attacks. Compared to 2013, there was a rise in fatalities of 81 percent while the number of attacks increased by 35 percent. Almost half of the world’s countries – 95 out of 193 – experienced terrorist attacks in 2014. The most lethal groups – Islamic State in Iraq and Syria (ISIS), Taliban, Al-Shabaab and Boko Haram – are all Islamist, followed by another totalitarian group, the Maoist/Communist Party of India. Afghanistan, India, Iraq, Nigeria, Pakistan and Syria, are the main victims of terrorism. People in these five countries received more than 60 percent of all attacks and 78 percent of all fatalities.1

1 United States Department of State, Statistical information on terrorism in 2014 http://www.state.gov/j/ct/rls/crt/2014/239416.htm on July 2015.

Editor-in-Chief of the peer-reviewed online journal - Perspectives on Terrorism, and Research FellowattheInternationalCentreforCounter-TerrorisminTheHague.Hepreviouslyservedas the Director of the Centre for the Study of Terrorism and Political Violence (CSTPV, Univer-sityofStAndrews)andtheOfficer-in-ChargeoftheTerrorismPreventionBranchoftheUnitedNations(TPB/UNODC,Vienna).

Alex P Schmid


While there is right-wing and left-wing terrorism as well as other forms of terrorism, it is religious terrorism that is the biggest source of worry in recent years. Here are statistics covering the year 2011 but the proportions have basi-cally stayed the same:

Table 1: Ideologies behind terrorist attacks worldwide (2011)2

Religious (mainly Sunni) extremists 8,886

Left-wing: Secular/political/anarchist 1,926

Unknown source 1,519

Right-wing: Neo-Nazi/fascist/white supremacist 77

Other 170

Total (2011) 12,533

Why have most governments been so unsuccessful in meeting this chal-lenge? If we want to sketch a promising way forward we first have to look back at what went wrong in the past when it comes to countering terrorism. We also have to leave behind us some of the ‘political correctness’ issues that have hin-dered a clearer identification of the problems. Let me give you my opinion on this by addressing five critical issues:

(i) the definition problem;(ii) the communication problem;(iii) the political problem;(iv) the religious problem;(v) the radicalisation problem.

The definition problem

The first thing that has gone wrong in the past fifty years (ever since 1972 – in fact since 19373) – is that the member states of the United Nations (UN)

2 United States Department of State, Country reports on terrorism 2011, 31 July 2011 http://www.state.gov/j/ct/rls/crt/2011/195555.htm on 15 August 2016. More than 22,000 people

were killed in these attacks.3 The League of Nations tried but failed to reach a definition in the mid-1930s. The convention

which never entered into force defined ‘acts of terrorism’ as ‘criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, a group of persons or the general public’ – Article 1(2), Convention for the Prevention and Repression of Terrorism

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The way forward on counter-terrorism: Global perspectives


and, before that, the League of Nations, could not agree on the problem, could not reach a universally accepted legal definition of terrorism. How can the inter-national community combat something for which states cannot find a common definition? It has been said that a problem well defined is a problem half solved. We have not reached that stage.

While there are national and regional definitions of terrorism, the UN Gen-eral Assembly has yet to agree on a legal one that gives teeth to the UN action plan of September 2006 which was accepted unanimously by all member states of the UN. What is the problem? Part of the problem is that some states make a difference between terrorists and freedom fighters. Some UN member states insisted that certain national liberation struggles – particularly those in Kashmir and Palestine – should not be associated with terrorism.4 While one can accept the legitimacy of some freedom struggles, however, this does not mean that all methods employed to obtain freedom are also legitimate. Another part of the problem is that many Muslim states make a distinction between jihad – struggle to defend and advance the rule of Islam in the world – and terrorism. However, Islam too has prohibitions of what are acceptable methods of struggle; suicide bombings and attacks on women and children and the old – something terror-ists engage in – are not part of what mainstream Islam considers to be legiti-mate.5 Yet others hold that struggles against non-democratic regimes and armed resistance against foreign occupation should not be equated with terrorism.6 Again, the answer to this confusion is that even the most just struggle does not justify the use of unjust methods of fighting. Lofty political ends do not justify criminal means.

Yet another problem why it has been difficult to arrive at a definition on terrorism in the Ad Hoc Committee on Terrorism of the UN General Assembly is that many states want to reserve the use of the term terrorism to certain acts of violence by non-state actors only, ruling out the possibility that states could also engage in terrorism. Each government represented in the UN’s Ad Hoc Committee on Terrorism has its own political agenda at home and abroad and generally uses the terrorism label on the domestic front to discredit a broad range

(1937); quoted in Wurth P, La repression internationale du terrorisme, Imprimerie la Concorde, Lausanne, 1941, 50.

4 Schmid AP (ed), The Routledge handbook of terrorism research, Routledge, London, 2011, 19-27.5 Berko A, The path to paradise: The inner world of suicide bombers and their dispatchers, Praeger Security In-

ternational, Westport, 2007, 172.6 Schmid AP, “Comments on Marc Sageman’s polemic ‘the stagnation of terrorism research’” 26 Ter-

rorism and Political Violence, 4(2014), 587-595.

Alex P Schmid


of activities by opposition forces at home. A Government like the one in Saudi Arabia can label disturbances of the public order in the form of street protests terrorism.7 The Chinese Government tends to place terrorism, extremism and separatism all in one basket.8 Other governments have other opposition activities which they label ‘terrorism’.

For many years I have been pleading, both in the context of the UN and in the academic world, that terrorism needs to be defined narrowly and distin-guished from other forms of political crime in a similar way that war crimes have been distinguished from legitimate acts of warfare. Yet when we look at the ongoing and seemingly endless discussions in the UN Ad Hoc Committee on Terrorism (it has been discussing a Comprehensive Convention against Interna-tional Terrorism since 1997), there is still no definition that can hope to gain the approval of all members of the UN General Assembly. The current wording of the draft definition is both broad and vague and running hopelessly behind the developments of terrorism itself.9

The same is true of some other definitions, including the definition which the African Union had adopted on 14 July 1999:

Any act which is a violation of the criminal laws of a State Party and which may endan-ger the life, physical integrity or freedom of…any person…and is calculated to

(i) intimidate, put in fear, force, coerce, or induce any government, body, institution, the general public or segments thereof, to do or to abstain from doing any act…or (ii) disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or (iii) create a general insurrection in a State.10

7 The new Saudi law of 2014 defines terrorism as ‘Any act carried out by an offender in furtherance of an individual or collective project, directly or indirectly, intended to disturb the public order of the state, or to shake the security of society, or the stability of the states, or to expose its national unity to danger, or to suspend the basic law of governance or some of its articles, or to insult the reputa-tion of the state or its position, or to inflict damage upon one of its public utilities or its natural resources, or top attempt to force a governmental authority to carry out or prevent it from carry-ing out an action, or to threaten to carry out acts that lead to the named purposes or incite [these acts].’ – Human Rights Watch, Saudi Arabia terrorism law tramples on rights: Establishes legal veneer for unlawful practices, 6 February 2014 https://www.hrw.org/news/2014/02/06/Saudi-arabia-terrroism-law-tramples-rights on 15 August 2016.

8 China defines terrorism as ‘any speech or activity that, by means of violence, sabotage or threat, gen-erates social panic, undermines public security, and menaces government organs and international organisations’ – ‘Laura Zhou: China narrows terrorism definition by deleting ‘thought’ from list of crimes’ South China Morning Post, 26/27 February 2015

http://www.scmp.com/news/china/article/1723625/changes-needed-chinas-counter-terrorism-law-avoid-human-rights-abuses-say on 15 August 2016.

9 For a discussion of the UN Draft definition, see, Schmid (ed), The Routledge handbook of terrorism research, 50-60.

10 OAU Convention on the Prevention and Combating of Terrorism, 14 July 1999, 2219 UNTS 179; Solomon H, Terrorism and counter-terrorism in Africa: Fighting insurgency from Al Shabaab, Ansar Dine and Boko Ha-

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What is the problem with such a broad definition? It is simple: the broad-er your definition of terrorism, the more terrorists you have to fight. In that sense the response problem and the definition problem are related.11 It also has repercussions for international collaboration against terrorism. The existence of different national and regional definitions of terrorism, some more and some less broad, make international cooperation problematical. Some countries would not want to extradite refugees who fled a dictatorship after they had engaged in some violent street protests and acts of non-violent resistance which an authoritarian regime already labels ‘terrorism’ while the same actions would be legal in Western democracies. However, if we could all agree on a narrow definition of terrorism under which only some of the worst excesses of political violence would fall, greater international cooperation against terrorism would become more likely.

In the past I had proposed to the UN Crime Commission to choose a re-stricted legal definition of terrorism based on the already universally accepted definition of war crime.12 A narrow definition of acts of terrorism as ‘peacetime equivalent of war crimes’ would put terrorism in the same category of interna-tionally outlawed practices as piracy, torture, slavery and genocide. There is no justification for such practices in the modern world and those who engage in such tactics should not be able to claim any moral justification by stating that they fight for God, fatherland, national liberation or any other ‘noble’ cause. We cannot

ram, Palgrave Macmillan, New York, 2015, 6.11 Schmid AP, ‘The response problem as a definition problem’ in Schmid AP and Crelinsten RD (eds),

Western responses to terrorism, Frank Cass, London, 1993.12 In my report for the UN Crime Commission I had argued that ‘Terrorists have elevated practices

which are excesses of war to the level of routine tactics. They do not engage in combat, as soldiers do. They strike preferably the unarmed. The attack of defenseless civilians and non-combatants is not an unsought side-effect but a deliberate strategy. Categorising acts of terrorism as war crimes is also appropriate in the sense that most terrorists consider themselves as being at war with Western democracies. (…) Since they are not fighting by the rules of war, they turn themselves into war criminals. (…) I believe that policy-makers would do well to choose a restricted legal definition of terrorism as ‘peacetime equivalent of war crimes’. Such a definition would include attacks on civil-ians and non-combatants and acts of hostage taking but would exclude some forms of violence and coercion (such as attacks on the military, hijackings for escape and destruction of property) which are currently labeled terrorism by many governments. ….[A] narrow and precise definition of ter-rorism is likely to find broader support than one that includes various forms of violent dissent and protest short of terrifying atrocities. Other, lesser forms of political violence (e.g. against property) would still be illegal under national laws while real terrorist offences could be considered in the same way as we view crimes against humanity, offences that require special treatment. If we have clarity on this front, nobody will be able to confuse terrorists and freedom fighters. (…)The good motive (like the fight for self-determination, freedom and democracy) can then no longer exculpate the bad deed (that is: violence against the unarmed, the disarmed and the neutral bystanders)’. – Schmid AP, ‘The definition of terrorism: A study in compliance with CRL/9/91/2207 for the UN Crime Prevention and Criminal Justice Branch’ LSWO, Leiden, December 1992, 8, 12-13. Quote slightly changed grammatically compared to the original.

Alex P Schmid


abolish armed conflict but we can place certain forms of conflict waging outside the boundaries of what is permitted under any circumstances in humanitarian and human rights law. However, that also implies that those fighting terrorism should not engage in illegal practices like torture – otherwise they forsake (part of) the moral high ground in the fight against those who accept no rules at all.

Terrorists often see themselves as being at war with their opponents – whether the adversaries are ethnic or religious communities, governments, or en-tire civilisations. However, by fighting outside the accepted rules of war – which turns them de facto into war criminals according to international humanitarian law – terrorists burn their bridges to the civilised world. Their war is a total war without humanitarian restraints. They attack preferably soft targets – civilians, non-combatants, prisoners of war – even women and children. Normal warfare by responsible state actors needs to be discriminate, proportionate and avoid collateral damage. Terrorist warfare, on the other hand, is indiscriminate – and deliberately so since it is, in fact a form of psychological warfare, trying to ‘sof-ten up’ and ultimately break the will to resist of the targeted population or its government.13

This then is the first problem of counter-terrorism: the lack of consen-sus on a definition of terrorism is a serious obstacle to a more successful fight against terrorism which is increasingly transnational.

Addressing the communication dimension

A second problem I see when it comes to addressing terrorism more ef-fectively, is the failure to see the complicity of our mass media.

‘Terrorism’ is based on the production of ‘terror’, which is a ‘…state of mind, created by a level of fear that so agitates body and mind that those struck by it are not capable of making objective assessments of risks anymore’.14 That state

13 Schmid AP, ‘Terrorism as psychological warfare’ 1 Democracy and Security, 2 (2005), 137-146. Boaz Ganor has argued that ‘….terrorism is a form of psychological warfare against the public morale, whereby terrorist organisations, through indiscriminate attacks, attempt to change the political agenda of the targeted population.(…) By convincing the target population that terrorist attacks can be stopped only by appeasement of the terrorist organisations, the terrorists hope to win concessions to their demands. The greater danger presented by terrorism is thus not the direct physical damage that it inflicts, but the impact on the way policymakers feel, think, and respond’. – Ganor B, ‘Israel’s counter-terrorism policy: 1983-1999 – Efficacy versus liberal-democratic values’ PhD Dissertation, Hebrew University, August 2002, 1.

14 Schmid AP, ‘Terrorism as psychological warfare’, 137. For an elaboration, see, Schmid (ed), The Routledge handbook of terrorism research, 2-3.

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of mind is not just with the victims themselves (who might not have survived a terrorist attack) but with all those who witness the victimisation – directly or via the media – and identify with the victims. Terrorism consists of a combination of violence (directed at the victims) and propaganda (directed, in part, at those who identify with the victims and have reason to fear that they might be the next victims). The communication dimension is crucial and transforms certain acts of armed violence into acts of political terrorism.

Most acts of terrorism are not primarily meant to kill or incapacitate the victims – they are not the real target – but to send a message to those who care for the victims, making them feel both powerless and angry. The old avant la let-tre Chinese definition of terrorism was ‘kill one, frighten ten thousand’.15 These days, with the help of the mass media and social media, not ten thousand but tens of millions and sometimes hundreds of millions people can be reached by the terrorists’ attention-seeking act. Some years ago Leonard Weinberg and Ami Pedahzur surveyed 73 definitions of terrorism and looked at what they all had in common. Their minimalist common ground definition brought out clearly the crucial communication factor: ‘Terrorism is a politically motivated tactic involv-ing the threat or use of force or violence in which the pursuit of publicity plays a significant role’.16

The main messengers for the terrorist’s publicity have, until recently, been our mass media, and, more recently, also our internet-based social media. Without the ‘oxygen of publicity’17 terrorism by non-state actors would simply not be an attractive strategy. However, we have largely failed to address the communication dimension of terrorism. Partly this has to do with our respect for the Universal Declaration of Human Rights (1948) which holds that ‘everyone has the right to freedom of opinion and expression…’18 For the larger part, however, there are more mundane reasons: the commercial (and sometimes political party) interests of mass media in attention-grabbing news stories.

15 For this and 259 other definitions of terrorism, see, Easson JJ and Schmid AP, ‘250-plus academic, governmental and intergovernmental definitions of terrorism’ in Schmid (ed), The Routledge handbook of terrorism research, 99-157.

16 Weinberg L and Pedahzur A, ‘The challenges of conceptualizing terrorism’ The Annual meeting of the American Political Science Association, Panel Empirical Analyses of Terrorism, Philadelphia, 27-31 August 2003, 10-11.

17 Thatcher M (1987); Nacos B, Terrorism and counterterrorism: Understanding threats and responses in the post-9/11 world, 3ed, Longman, Boston, 2010, 253.

18 Article 19, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).

Alex P Schmid


There are basically three ways of depriving terrorists of realising their com-munication goals: (i) censorship of public media by governments; (ii) self-cen-sorship by the media; or (iii) the creation of powerful counter-narratives which invalidate the terrorist messages.

The first option is problematic because the media might lose some of their watchdog functions as governments, in the process of blocking terrorist mes-sages, might also ban a great deal of other undesirable communications in the name of national security. Nevertheless, many governments have engaged in ef-forts to increase censorship in the last decade.19

The second option – self-censorship – would be preferable if the media actually would observe rather than break – in the heat of their competition for audiences – their own internal guidelines (to the extent they have them). When it comes to reporting terrorist stories, media guidelines should be based on the realisation that some acts of violence are performed primarily for the purpose of being picked up and broadcast for free by the news system. It would require a tidal change in the news value system of our media to ban (or at least downplay) that sort of publicity-seeking violence-based incursions into the world’s news system. It would mean a change in editors’ news values. Currently, the atrocities of terrorists fit very well into the ‘value’ system of our news media, containing drama and conflict, negativity and human interest – the top positions in our news value system. The ten elements which determine news value are: Immediacy and event-orientation; drama and conflict; negativity (bad news requires attention); human interest; photographic attractiveness; simple story lines; topicality (cur-rent news frames); exclusivity; status of information source; and local interest.20

Millions of events occur every day in the world. However, only a small percentage of them are deemed ‘newsworthy’ by our media’s selection criteria and even fewer make it to the front pages of our press or into the evening televi-sion news. If the public has a ‘right to information’, does that give terrorists a right to produce violence-based information for the public by means of bomb-ings and shootings? I would argue that there is a trade-off between freedom of

19 Press freedom has declined since 2004. Currently only 14 percent of the world population live in countries with a free press; 42 percent of the people enjoyed a partly free press while 44 percent lived in not free environments (data for 2014). See, Freedom House, Freedom of the press 2015: Harsh laws and violence drive global decline, 2015, 7.

20 Based on Peltu M, ‘The role of communication media’ in Otway H and Peltu M (eds), Regulating industrial risks: Science, hazards and public protection, Butterworth, London, 1985, 128-145; Debatin B, ‘“Plane wreck with spectators”: Terrorism and media attention’ in Greenberg BS (ed), Communication and terrorism: Public and media responses to 9/11, Hamilton Press, Cresskill, 2002, 168.

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information and the public’s right to know, on the one hand, and citizens’ free-dom from intimidation by terrorists on the other hand.21 The second should take precedence over the first if it saves the lives of innocent people who are only used as ‘entry ticket’ by the terrorists to break into the world’s news system.’22

The third option: to create counter-narratives and alternative narratives that deprive terrorist narratives of their attractiveness is something talked about for years, without much progress being achieved.23 The terrorist narrative, especially the jihadist narrative of ISIS, has an appeal for many alienated rebellious young Muslims, which governments and non-governmental actors find difficult to match with a credible counter-narrative. Such counter-narratives exist for exam-ple in the form of voices of disillusioned foreign fighters who return home (if they make it home – ISIS, for instance, has shot more than one hundred disen-chanted ‘deserters’ to prevent their voices from being heard.24 However, so far the voices of the disenchanted terrorist drop-outs who made it back to their home countries have not been magnified by the media. Counter-narratives and counter-messaging addressed to potential followers of terrorist movements ought to be prioritised in the struggle against terrorism, given the problems with the other potential solutions, namely government censorship or media self-censorship.

If terrorists are, as Karl Marx once put it, ‘dangerous dreamers of the ab-solute’, we need to know more about their dreams and about how to bring them back to reality.25 To do so, we have to try to change their mental framework. That is difficult since most of them have, in their fanaticism, ‘closed minds’ and have become ‘fact-resistant’, not listening to outsiders. However, those who return disillusioned from jihadi war zones might be able to reach some of those who are in danger of being radicalised. They are within our each and need to be sup-ported and protected from acts of revenge.

21 Schmid AP, ‘Freedom of information vs. freedom from intimidation’ in Howard L (ed), Terrorism: Roots, impact, responses, Praeger, London, 1992, 95-118.

22 Or in the words of Brigitte Nacos, herself a former journalist: ‘In a real sense, then, the immediate victims of bombings, hijackings, kidnappings, and other terrorist acts are simply pawns in the plays that terrorists stage in order to engage their domestic and international audiences’ – Nacos, Terrorism and counterterrorism, 254.

23 NATO COE DAT. Strategic Communication in Counter-Terrorism: Target Audience Analysis, Measures of Effect, and Counter-Narrative. Ankara, NATO COE DAT, 4-5 June 2014; Schmid AP, ‘Challenging the narrative of the “Islamic State”’ 6 The International Centre for Counter-Terrorism – The Hague, 5 (2015).

24 ‘ISIS ‘executes 100 deserters’ in Syria’s Raqqa’ Al Arabiya News, 20 December 2014 http://english.alarabiya.net/en/News/middle-east/2014/12/20/ISIS-executes-100-deserters-in-

Syria-s-Raqqa-report.html on 7 July 2015.25 Schmid, ‘Terrorism as psychological warfare’, 143.

Alex P Schmid


The mass media are the nervous system of our societies and social media have brought international two-way communication within the reach of hundreds of millions of young people. Social media like Twitter, Facebook and YouTube are also the communication system of choice of terrorist groups seeking to recruit followers and intimidate adversaries.26 Groups like the so-called ISIS appear to be more successful than governments or non-governmental organisations in exploiting the full potential of social media (chat rooms, virtual message boards, email, mobile phones, online video sharing sites) for their purposes. The possibilities offered by internet-based media to terrorists for free are breath-taking. These include: (i) the internet, especially the dark net with its capacity for hiding the identity and/or location of those sending messages due to sophisticated encryption techniques, provides terrorist leaders with the indispensable infrastructure for giving orders to terrorist cells and receive feedback from them; (ii) the open part of the internet allows terrorist operatives and their supporters to glorify their own deeds and to incite sympathisers of the terrorist goals to become supporters and ultimately operatives; (iii) the Internet allows the terrorists to raise funds for their cause; (iv) the internet allows them to gain intelligence on their opponents, for instance through Google Earth or through active hacking of government websites; (v) the internet allows terrorists to gain know-how, for instance on bomb-making; and (vi) the internet allows them to engage in cyber-sabotage and attacks on critical national infrastructures, exploiting the vulnerabilities of technology-dependent societies.27

Since the revelations of Edward Snowden, it has become increasingly difficult for law enforcement authorities to monitor Internet-based communications of terrorists. With the internet lacking regulation and due to the laissez-faire tolerance of social media administrators, we still do not know how to deal effectively with the abuse of the internet by terrorists (and for that matter, by organised crime syndicates and computer-savvy hackers). How can one deny access to, and abuse of, the internet to terrorists and criminals if one wants to preserve the utility of the internet for law-abiding citizens?28 The introduction of controls, such as positive identification of every sender of a message on the internet, would make freedom-loving citizens in non-democratic states even more vulnerable to

26 Stevens D and O’Hara K, The devil’s long tail: Religious and other radicals in the internet marketplace, Hurst, London, 2015.

27 Partly based on Weimann G, Terrorism in cyberspace: The next generation, Columbia University Press, New York, 2015.

28 Stevens and O’Hara, The devil’s long tail, 231.

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government repression while many terrorists and professional criminals might still be able to ‘beat the system’.

Thinking about the internet and the mass media only in terms of an open market places of ideas with access for all is naive. Joseph Goebbels, the Nazi Propaganda Minister, was closer to the reality when he said: ‘News is a weapon of war. Its purpose is to wage war and not to give out information’.29 Today there is, in the eyes of many analysts, an unholy pact between journalism and terrorism. Brigitte Nacos, herself a journalist turned terrorism analyst, brought it on the formula

The American media and terrorists are not accomplices. However, they are involved in a symbiotic relationship in that they feed off each other.(..)To put it differently, the news me-dia and terrorists are not involved in a love story; they are strange bedfellows in a marriage of convenience.30

Breaking up this unholy partnership between mass and social media, on the one hand, and publicity-seeking terrorists, on the other, is a big challenge. To begin with, media should be banned from broadcasting violence that merely serves to access the news system. They need to learn to distinguish between news that would have happened anyway even if there were no media, and pseudo-news where people are killed to gain free access to the news system for spreading propaganda and fear. For that a change in our news values is necessary, as well as a greater degree of editorial control of social media.

Playing politics with terrorism and counter-terrorism

The mutually beneficial relationship between media and terrorism is not the only one that keeps terrorism alive. There are also politicians, members of armed forces, law enforcement and intelligence agencies who play politics with terrorism at home or abroad. The threat of terrorism and public outrage after a major terrorist attack have been used by politicians and others to advance their own particular agenda and short-term interests. Those politicians who promise more forceful measures against terrorists usually win from those who do not fall into the trap of terrorist provocations. The tough politicians find easy allies in the security industries. A whole sector of counter-terrorism industries has emerged

29 Schmid AP and de Graaf J, Violence as communication: Insurgent terrorism and the Western news media, Sage, London, 1982.

30 Nacos, Terrorism and counterterrorism, 263.

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since 9/11,31 sometimes reminiscent of the military-industrial complex about which President Dwight Eisenhower warned in his goodbye address as American President in January 1961.32 This link too has to be problematised – something that has, in part, been done by a school of thought called ‘Critical Terrorism Studies’.

The securitisation of terrorism – which before 9/11 had been widely seen as a law enforcement problem – led to a Global War on Terror (GWOT) under President George Bush, with the Pentagon and the Central Intelligence Agency (CIA) taking the lead. It is now widely agreed that the US Government over-reacted after 9/11 and that some of the over-reaction, in turn, produced more terrorism. The intervention in Iraq in 2003 was apparently already decided upon within two weeks after 9/11 and later conducted under the pretext that there was a link between Al Qaeda and Saddam Hussein, while there was none.33 However, it served the early foreign policy goals of the first Bush administration. Neo-conservative hawks in the Pentagon thought that the United States of Ameri-ca (USA), as only remaining superpower, would be able to bring about regime changes in seven countries within five years. One of those designated seven can-didates for regime change was Iraq.34

Countering terrorism has also brought changes on the domestic front. In the USA, the Federal Bureau of Investigation (FBI) has infiltrated the Muslim community in the search for sleepers and terrorist cells (which hardly existed). In its attempts to bring as many terrorists as possible to court, the FBI engaged frequently in dubious provocative sting operations that, in a number of cases, produced ‘terrorists’ where there might have been none without FBI agents’ enticements to break the law.35

31 Hughes S, War on terror, Inc: Corporate profiteering from the politics of fear, Verso, London, 2007.32 Dwight Eisenhower warned in his farewell address against ‘….the acquisition of unwarranted influ-

ence, whether sought or unsought, by the military-industrial complex. The potential for the disas-trous rise of misplaced power exists and will persist’ – ‘President Dwight D. Eisenhower’s farewell address (1961)’ 17 January 1961 https://www.ourdocuments.gov/doc.php?flash=true&doc=90 on July 2015.

33 ‘General Wesley Clark: Wars Were Planned – Seven Countries in Five Years’ YouTube interview, up-loaded 11 September 2011 https://www.youtube.com/watch?v=9RC1Mepk_Sw on 28 June 2015.

34 ‘General Wesley Clark: Wars Were Planned – Seven Countries in Five Years’, the other countries were: Lebanon, Syria, Libya, Somalia, Sudan and Iran.

35 Aaronson T, The terror factory: Inside the FBI’s manufactured war on terrorism, Ig Publishing, New York, 2015. The author, an award-winning investigative reporter for Al Jazeera America, argues that the FBI, ‘under the guise of engaging in counterterrorism since 9/11, built a network of more than fifteen thousand informants whose primary purpose is to infiltrate Muslim communities to create and facilitate phony terrorist plots so that the Bureau can then claim it is winning the war on terror’

http://phibetaiota.net/2016/06/robert-steele-the-orlando-mass-casualty-event-a-false-flag-drama-

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Around the US Department of Homeland Security, the Pentagon and other security and intelligence agencies, a whole cottage industry of terrorism experts eager to offer their services to whoever is willing to pay for them has emerged. For many of them threat inflation and even distortion appears to be the order of the day.36 The same has happened elsewhere.

In Russia, Vladimir Putin, who had become acting Prime Minister in August 1999 after having been head of the Federal Security Service (FSB) [successor to the Union of Soviet Socialist Republic’s Committee of State Security (KGB)], attributed two major attacks on apartment blocks in Moscow in the autumn of 1999 to Chechen perpetrators.37 This provided him with a pretext to start, on 1 October 1999, a second war in order to re-incorporate separatist Chechnya into Russia.38 There were two bombings on 9 and 13 September, preceded by another one in Buinaks (Dagestan).39 Together these bombings killed some 300 people and wounded many more. There have been persistent voices which actually attrib-uted these apartment bombings not to Chechens but to agents from the FSB.40 While there is no conclusive proof, there is some circumstantial evidence and some of these voices have been silenced in a way that raised further suspicion.41 Even if responsibility cannot be placed directly at the feet of Putin, he managed to make good use of the Russian public’s resulting anti-Chechen sentiments to consolidate his power.42 His popularity soared and Vladimir Putin has stayed in power ever since.

There have been other instances where people played politics with anti-terrorism, blaming sitting governments for not being tough enough on terror-ism.43 One theatre of conflict where the art of playing politics with terrorism has reached new heights is the Middle East. In Syria, for instance, the dictatorial regime of President Assad blamed a popular uprising in the wake of the Arab Spring on terrorists. Perhaps in order to make the claim more true, the regime

atrocity-or-hybrid/#_edn121 on 15 August 2016.36 Mueller J, Overblown: How politicians and the terrorism industry inflate national security threats, and why we believe

them, Free Press, New York, 2006.37 ‘Amy Knight: Finally, We Know About the Moscow Bombings’ The New York Review of Books, 22 No-

vember 2012 Issue (reviewing Dunlop JB, The Moscow bombings of September 1999: Examinations of Russian terrorist attacks at the onset of Vladimir Putin’s rule, ibidem-Verlag Publishing, Stuttgart, 2012) http://www.nybooks.com/articles/2012/11/22/finally-we-know-about-moscow-bombings/ on 28 June 2015.

38 ‘Amy Knight: Finally, We Know About the Moscow Bombings’.39 ‘Amy Knight: Finally, We Know About the Moscow Bombings’.40 ‘Amy Knight: Finally, We Know About the Moscow Bombings’.41 ‘Amy Knight: Finally, We Know About the Moscow Bombings’.42 ‘Amy Knight: Finally, We Know About the Moscow Bombings’.43 Kassimeris G (ed), Playing politics with terrorism: A user’s guide, Hurst, London, 2007.

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secretly released the terrorist strategist Abu Musab al-Suri (who had been Al-Qaeda’s operations chief in Europe until 2005) from an Aleppo prison.44 The Turkish Government offered members of ISIS for years a safe haven in Turkey, allowing many thousands of foreign fighters to reach the conflict zone in Syria while wounded ISIS fighters were taken care of in a special Turkish hospital. President Erdogan had hoped that ISIS would manage to overthrow Syria’s Ala-wite regime and overrun the Kurds in the north of Syria but when ISIS was more interested in expanding in Iraq, Turkey’s policy changed in after mid-2015.45

Pakistan has been playing politics with terrorism by training, financing and logistically equipping terrorists both in Kashmir and Afghanistan while at the same time accusing India for doing the same in Baluchistan.46

Even democracies play politics with terrorism. The Greek Minister of De-fense, Pannos Kammenos, said: ‘If Europe leaves us in the crisis, we will flood it with immigrants, and it will be even worse for Berlin if in that wave... there will be some jihadists of the Islamic State, too.’47

The use of guerrilla armies and terrorist groups as proxies in wars with neighbours and more distant enemies has a long history in international relations. While this is usually done under deep cover so that it can be plausibly denied, the evidence cannot be hidden forever. At a time of multiple leaks of secret in-formation on the Internet, it has become clear that even democratic states have sponsored armed groups abroad that engaged in various forms of political vio-lence, including terrorism. This predates the internet. The Government of Ron-ald Reagan, for instance, sponsored Nicaraguan ‘Contras’ against the Sandinista Government which was seen as being allied with Cuba and the Union of Soviet Socialist Republic.48 The US President even praised the Contras as being the moral equivalents of George Washington and the American founding fathers.49

44 “Jason Lewis: Syria releases the 7/7 ‘mastermind’” The Telegraph, 4 February 2012www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/9061400/Syria-release on 28 June 2015. Lewis

reported that ‘….he is said to have been released as a warning to the US and Britain about the con-sequences of turning their backs on President al-Assad’s regime as it tries to contain the uprising in the country’.

45 ‘Erdogan’s dangerous gambit’ The Economist, 1 August 2015 www.economist.com/news/leaders/21660123/-bombing-kurds-well-islamic-state-turkey-

adding-chaos-middle on 2 August 2015.46 Ataöv T, Kashmir and neighbours: Tale, terror, truce, Ashgate Publishing, Aldershot, 2001, 205.47 “Peter Martino: The strategic consequences of ‘Grexit’” Gatestone Institute, 29 June 2015 https://

www.gatestoneinstitute.org/6071/grexit-consequences on 15 August 2016.48 Brody R, Contra terror in Nicaragua: Report of a fact-finding mission: September 1984 - January 1985, South

End Press, Boston, 1985, 12.49 Brody, Contra terror in Nicaragua, 1.

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But much of the Contras’ insurgency consisted of little more than war crimes and acts of terrorism.50

Not only governments sponsor terrorists; non-government actors do so increasingly. In the case of Syria, for instance, Muslims from more than one hundred countries have sent money and up to thirty thousand foreign fighters to Syria in order to strengthen the insurgency against the regime of President Bashir Assad and expand the Caliphate.51 Iran has been using Hezbollah, but also its own Revolutionary Guards, to keep in power the Alawite regime in Damascus, which, between September 2015 and March 2016, has also been heavily sup-ported by 3-6,000 strong Russian military.52

The range of state-sponsored terrorism varies greatly, going from passive tolerance of use of a country’s territory as safe haven to offering the insurgents arms and training facilities as well as financial, logistic and intelligence support.53

The rationale for supporting foreign non-state armed groups varies and can be legitimate where people face genocidal violence or suffer from mass atrocities by a dictatorial regime. Yet more often than not power rivalries between neigh-bouring states and regional or global powers stand at the basis of using terrorists as proxies to weaken an adversary. As long as not all states are willing to make it clear to ‘their’ foreign armed friends that any support will cease if the armed groups engage in acts of terrorism, war crimes and crimes against humanity, this will continue. However, often the sponsor’s own human rights record is far from clean. Few non-state armed groups could survive if states were serious about in-sisting that standards of humanitarian law and human rights law are to be upheld in return for support.

Religion and terrorism

Perhaps the biggest taboo in counter-terrorism is the denial of the role of religion. Political leaders, especially of Muslim majority countries, are eager to

50 Brody, Contra terror in Nicaragua.51 ‘Subaib Ayoub: Tripoli youth recruits fighters to send to Syria’ Al-Monitor, 14 March 2014 http://www.al-monitor.com/pulse/security/2014/03/tripoli-lebanon-youth-recruit-fighters-syria.

html on 15 August 2016.52 See Budka AJ, ‘The Arab revolutions of 2011: Promise, risk, and uncertainty’ in Johnson TA (ed),

Power, national security, and transformational global events: Challenges confronting America, China and Iran, CRC Press, Florida, 2012.

53 Byman D, Deadly connections: States that sponsor terrorism, Cambridge University Press, Cambridge, 2005; Coll S, Ghost wars: The secret history of the CIA, Afghanistan and Bin Laden, from the Soviet Invasion to Sep-tember 10, 2001, Penguin Books, New York, 2004.

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dissociate themselves from terrorist groups like Al-Qaeda or ISIS, saying that such groups have nothing to do with religion and certainly nothing to do with true Islam.54 The same can be heard from some Western political leaders who are anxious to keep Muslim voters on their side, Arab money in their banks and Arab oil flowing on the international market. One wonders whether they would have also said, some centuries ago, that the Crusades had nothing to do with Christianity. Religious leaders these days present themselves as peaceful and en-gaged in inter-faith dialogue. At the same time there are plenty of Imams who preach jihad. In late June 2015 the Tunisian Government closed down around eighty mosques accused of inciting violence, following an attack by a terrorist on Western tourists in Sousse in which 38 people (30 of them British) were killed and almost as many wounded.55

The relationship between religion and violence is ambiguous.56 Even reli-gions which are said to be particularly non-violent, like Buddhism, have produced religious leaders who condone the use of force and in some cases have been inciting their followers to the use of violence against those who do not share their faith, as has been the case in Sri Lanka and Myanmar.57 Christianity, despite the preaching of peace by Jesus Christ, has engaged in many holy wars.58 Islam, while also known for its periods of peaceful coexistence with other religions, has frequently been associated with violence. The crusades are a major part of Christian history and the same is true for jihad in Islam. That certainly is the view of Abu Bakr al-Baghdadi, a.k.a. Caliph Ibrahim, the leader of the ISIS:

O Muslims, Islam was never for a day the religion of peace. Islam is the religion of war….Mohammed was ordered to wage war until Allah is worshipped alone….He himself left to fight and took part in dozens of battles. He never for a day grew tired of war.59

54 The then Saudi Ambassador to the United States, Abdel as-Jubeir, for instance said: ‘Terrorism knows no religion. (…) It is in violation of every religion in the world, and it is a scourge that must be eliminated through very strong and very robust international measures’. ‘Associated Press: Saudi Give UN $ 100m to Fight Terrorism’ Aljazeera 14 August 2014

http://www.aljazeera.com/news/middleeast/2014/08/saudis-give-un-100m-fight-terror-ism-201481412824637366.html on 15 August 2016.

55 “Tunisia beach attack: Gunman ‘had help’ from others” BBC News, 28 June 2015 www.bbc.com/news/world-africa-3305444 on 29 June 2015.56 Oberdorfer B and Waldmann P (eds), Die ambivalenz des religiösen: Religionenalsfriendenssstifter und gewal-

terzeuger, RombachVerla, Freiburg, 2008.57 See Schober J, ‘Buddhism, violence and the state in Burma (Myanmar) and Sri Lanka’ in Cady LE

and Simon SW (eds), Disrupting violence: Religion and conflict in South and Southeast Asia, Routledge, Oxon, 2006, 51-69.

58 Tyerman C, Fighting for Christendom: Holy war and the crusaders, Oxford University Press, Oxford, 2004.59 Statement by Abu Bakr al-Baghdadi – ‘Soeren Kern: UK: Politicians Urge Ban on the Term “Islamic

State”’ Gatestone Institute, 4 July 2015 https://www.gatestoneinstitute.org/6095/uk-ban-islamic-state on 15 August 2016.

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Scholars are divided about the role of religion in violence. A survey I did some years ago, in which I asked nearly one hundred experts, “What, if any, is, in your view, the relationship between ‘terrorism’ and ‘religion’?” produced a whole spectrum of replies, from downright negative to positive. Here are some of the answers: There is no relationship whatsoever; there is no necessary connection; religion often provides a script for what an individual or group wants to do for non-religious reasons; religious belief can be a motivating force for terrorists; many perpetrators rationalise and justify terrorism by invoking religion; and be-lieving that God is on one’s side is a powerful incentive to action.60

The last of these positions echoes what Blaise Pascal, the 17th century French philosopher, said: ‘Men never do evil so completely and cheerfully as when they do it from religious conviction’.61 If violence is approved by some credible religious authority, it is more likely to be adopted. It is a fact that many terrorists use (or misuse) ‘sacred’ texts to justify their extreme violence.62 To say that terrorism has nothing to do with religion closes the door to a badly needed discussion. Political correctness in this area is blinding ourselves to an incon-venient truth. At the core of most religions is the idea of sacrifice to please a divine authority. That sacrifice can consist of food or gifts, or the slaughtering of animals but also of sacrificing children and other innocent people in ‘holy violence’63 – in addition to sacrificing oneself in an act of martyrdom.64

The idea of sacrifice and martyrdom is also a dominant theme in much of contemporary terrorist discourse. To deny that parallel or connection because it is inconvenient is short-sighted. In sociology, there is the so-called Thomas The-orem: ‘If men define situations as real, they are real in their consequences’.65 In that sense, saying that terrorism has nothing to do with ‘true’ Islam is problem-atic. Four recent opinion polls have shown that more than eight million Muslims in 11 Arab countries are supportive of ISIS while many more are sympathetic to some features of ISIS.66

60 Schmid (ed), The Routledge handbook of terrorism research, 23-27.61 Pascal B, Pensées, 1669, Krailsheimer AJ (trans), Penguin Books, London, 1966.62 Burleigh M, Sacred causes: Religion and politics from the European dictators to Al Qaeda, Harper Perennial,

London, 2006.63 Hogg G, Cannibalism and human sacrifice, Nonsuch Publishing, Chalford, 2007.64 Gambetta D(ed), Making sense of suicide missions, Oxford University Press, Oxford, 2005.65 Thomas WI and Thomas DS, The child in America: Behavior problems and programs, Alfred A Knopf,

New York, 1928, 571-572.66 ‘Clarion’s Ryan Mauro: Results of four separate polls are shocking’ the clarion project http://www.clarionproject.org/videos/clarions-ryan-mauro-isis-supporters-arab-world-number-

42-million on 6 July 2015.

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Religion has at times brought out the best in people, for example, compas-sion and charity (which exist also in atheists), but perhaps as often it has brought out the worst (e.g. in the Spanish Inquisition67). We have to be as critical of reli-gions as we have to be of ideologies. The line between religion and ideology is a thin one – if there is a line. Those who claim to speak in the name of religion or a specific divine authority have to be watched as carefully as secular leaders. Their agenda might not be what it pretends to be. They cleverly use the social capital – people’s goodwill towards the religion they were brought up with – to justify their religious-political campaigns against those who are not ‘true believ-ers’ according to their interpretation. In this way militant Salafists have managed to re-label suicide bombers as martyrs, terrorist attacks on unarmed civilians as glorious acts of jihad, and crimes against humanity as deeds that will open the gates to paradise to those who engage in them. Religion is a mobilising device like racism or nationalism and a very effective one at that. In the Routledge Handbook of Terrorism Research I tried to summarise the discussion on religion and terrorism in these words:

Marxists tried to divide human societies by ‘class’ and propagated class war. Fascists used the equally fuzzy concept of ‘race’ to identify their public enemy. Salafist Islamists now use religion, dividing humankind into ‘true’ Muslims on the one hand and unbelievers (kafir) and heretics (takfir) on the other hand and they alone arrogate to themselves to determine who belongs to which group. In each generation, it seems, fanatics come up with a new justifica-tion for killing fellow human beings and find adherents among the uneducated as well as among well-educated ideological entrepreneurs who see a chance to instrumentalise class, race or religion to achieve political power for themselves.68

The fight against terrorism – which is mainly Salafist jihadi terrorism these days – cannot be waged successfully if we leave the religious drivers of Al-Qaeda, ISIS and other Islamist militants outside the discussion. Many moderate Muslims have so far not dared to confront Islamist extremists for a variety of reasons such as: denial of the religious roots of terrorism; silent connivance with the goals if not methods of the jihadists, or fear from being targeted as well if they speak out against the religious fanatics who engage in indiscriminate violence against unbelievers.

However, effective opposition to Islamist terrorism must come from within Islam for the words of outsiders are less likely to be heard and believed. If mod-erate, mainstream Muslims do not stand up against extremist movements on their fringe, they themselves risk to be marginalised in countries where they are

67 Pérez J, The Spanish inquisition: A history, Profile Books, London, 2004.68 Schmid (ed), The Routledge handbook of terrorism research, 27.

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forming minorities. As for the Muslim-majority countries, there is the observa-tion attributed to Edmund Burke: ‘The only thing necessary for the triumph of evil is that good men should do nothing’.69 Many Muslim-majority countries are divided, both internally and among themselves. There are deep divisions between small wealthy ruling elites and the masses, between Sunni and Shia, between the older generation and the young, not counting tribal and other divisions. What is standing in the way of finding solutions to social, economic, political and religious problems is the lack of education of broad sectors of society. That has allowed the spread of, and belief in, conspiracy theories which lack any basis in reality. The usual suspects of such ‘theories’ are the Jews, the West, the Crusaders, the Imperialists, the neo-Colonialists and the Unbelievers. The cult of victimhood that blames most if not all of Muslim problems on external scapegoats stands in the way of pragmatic problem evaluation and rational conflict resolution. Any-body associating the current wave of terrorism with Islam risks being labeled ‘Islamophobic’. Islam, like any major religion, has many currents and sometimes side streams become mainstream and vice versa. While jihad contains elements of just war theory and should not be automatically equated with terrorism, the fact is that much of current terrorism originates from Salafist Sunni jihadists whose ideology is totalitarian and who form a danger to other Muslims as well as the rest of the world.

Radicalisation and de-radicalisation

However, if terrorism cannot be blamed (solely) on external factors, what are the root causes of terrorism? These can be looked at on three levels: the macro-level of the international system (including the news system); the meso-level of society and radical communities and sub-cultures, and the micro-level of the vulnerable individuals. Here I will only focus on the last of these three.70

Since nobody is born a terrorist, how do mainly young males, many of them Muslims or recent converts to Islam, become terrorists? There is a process called radicalisation that is held responsible for it. What does it mean? There are many definitions. Peter Neumann half-jokingly said that radicalisation is ‘what

69 ‘Edmund Burke’ Wikiquote https://en.wikiquote.org/wiki/Edmund_Burke on 15 August 2015 (the authorship of this quote is, however, disputed).

70 For a discussion of all three levels, see, Schmid AP, ‘Radicalisation, de-radicalisation, counter-radi-calisation: A conceptual discussion and literature review’ 4 The International Centre for Counter-Terrorism – The Hague, 2 (2013).

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goes on before the bomb goes off ’.71 Radicalisation is a kind of blackbox in which seemingly normal young people enter, are transformed and exit as fanati-cal jihadist terrorists. The same or a similar process also occurs with left- and right-wing terrorists, ethno-nationalist and single-issue terrorists. The process of radicalisation – or political socialisation to the use of unacceptable tactics of conflict waging – is more general, although there are differences between radi-calisation in, for instance, Western diasporas and in Muslim-majority countries.72

There are many definitions of radicalisation. Here is my own which views it as a process that can occur on both sides of a conflict dyad:

an individual or collective (group) process whereby, usually in a situation of political po-larisation, normal practices of dialogue, compromise and tolerance between political actors and groups with diverging interests are abandoned by one or both sides in a conflict dyad in favour of a growing commitment to engage in confrontational tactics of conflict-waging. These can include either (i) the use of (non-violent) pressure and coercion, (ii) various forms of political violence other than terrorism or (iii) acts of violent extremism in the form of terrorism and war crimes. The process is, on the side of rebel factions, generally accompa-nied by an ideological socialisation away from mainstream or status quo-oriented positions towards more radical or extremist positions involving a dichotomous world view and the ac-ceptance of an alternative focal point of political mobilization outside the dominant political order as the existing system is no longer recognized as appropriate or legitimate.73

What exactly is this process of radicalisation on the individual level on the side of rebellious young people? People can be socialised to various forms of behaviour – pro- or anti-social – by their families, the school, the mosque or other religious institutions, peers and friends they associate with on the street, youth organisations, television or the Internet, or in prison. Their relative influ-ence in social and political socialisation varies, but it is hard to under-estimate the role of the family. Kids from broken families, single parent families, kids with violent fathers or drug-addicted parents, or kids who have experienced incest or rape within their families, naturally look for escape, for family substitutes. They might find these in a street gang, a criminal brotherhood or a religious sect. If families and schools cannot provide young people with adequate role models and positive identification objects, youth will look for these elsewhere. Most young

71 Schmid, ‘Radicalisation, de-radicalisation, counter-radicalisation’, 6.72 Anneli Botha, in her dissertation studying militant groups in Uganda and Kenya, has made this

point: ‘.…what drives individuals in Europe to extremism is manifestly different to what one would expect in Africa. Even two neighbouring countries such as Kenya and Uganda are faced with very different circumstances and organisations.’ Botha A, ‘Radicalisation to commit terrorism from a political socialisation perspective in Kenya and Uganda’ PhD Thesis, University of Free State, June 2014, 382.

73 Schmid, ‘Radicalisation, de-radicalisation and counter-radicalisation’, 18.

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people go through a rebellious phase in which they question the values of their parents. Sometimes adolescents turn against the values of their immediate sur-rounding, at least temporarily. They look for new identification objects, driven by their longing to belong to a welcoming collective that they can identify with, a collective that is willing to accept them as they are, even if they, in many cases, have been losers in life so far. If there are exciting new identification objects ‘out there’, these might be able to pull a young person in their direction, especially when a good father figure and a caring mother figure have been absent at home. If the background young people come from is problematic – family problems, economic difficulties, discrimination, marginalisation, humiliation, unemploy-ment, dropping out of school – all these can become push factors of radicalisa-tion. The combination of many push factors and the simultaneous availability of seemingly attractive alternatives – the pull factors of an armed group that promises those who join a Kalashnikov, money, brotherhood, slave girls and ad-venture – can make some young people susceptible to extremism. Radicalisation towards terrorism then becomes more likely when other conditions conductive to the spread of terrorism are present.

A major external catalyst or trigger that makes radical young people join an extremist organisation bent on terrorism is often mistreatment of family mem-bers and friends by law enforcement or other security forces on the street and in prison situations.74

The list of factors that can push or pull young people towards terrorism is long and varies from community to community. Here are some general condi-tions that are, in the view of scholars, conductive to the emergence and spread of terrorism:

Table 5: Conditions conductive to the emergence and spread of terrorism, according to various scholars75

Push Factors Pull Factors

Reaction to (vicarious) traumatic ex-periences of violence

Existence of extremist ideologies that provide justifications for attacks against out-group members (for ex-ample non-believers)

74 Botha, ‘Radicalisation to commit terrorism from a political socialisation perspective in Kenya and Uganda’, 379.

75 Based on Appendices 4.1. and 4.2, in Schmid (ed), The Routledge handbook of terrorism research, 272-279.

Alex P Schmid


Push Factors Pull Factors

Anger and individual or collective de-sire for (vicarious) revenge, based on humiliation or (vicarious) experience of perceived injustice.

Presence of charismatic leader who translates grievances into motivation to engage in violent actions/jihad

Estrangement from mainstream so-ciety by uprooted migrant families in refugee camps and diasporas.

Existence of local peer-group that reinforces individual inclination to become terrorist/foreign fighter

Socio-economic marginalisation or political exclusion.

Imitation (contagion effect) of pub-licised and apparently successful ter-rorist mode of operation

Personal identity crisis; individual search for meaning and purpose in life; frustrated aspirations; lack of fu-ture perspectives at home and desire to escape; seeking redemption.

Personal recognition: prospect of recognition as valiant fighter for a ‘good cause’ and opportunity to up-grade one’s identity from near ‘zero’ [in own surroundings] to ‘hero’ [in the land of jihad]

Unresolved political conflicts and perceived absence of solutions by state actors.

Promise of rewards on earth and in afterlife (paradise).

Given these (and other) factors at work: how can we prevent radicalisation to violent extremism and terrorism? The short answer is: through education and community work. Educated people are less likely to believe that there is only one solution to their problem and that this solution is engaging in terrorism. The historical record of the success of terrorist campaigns has been very low – under ten percent – and the individual lethality rates of those who engage in terrorism is at the same time very high.76 Educated young people will learn such facts and be able to make cost-benefit assessments. Education also teaches young people ethics and compassion for others. Radicalisation can be prevented through com-munity work on the neighbourhood level: if young people are offered enough opportunities to lead a meaningful life – through involvement in youth clubs,

76 Cronin AK, How terrorism ends: Understanding the decline and demise of terrorist campaigns, Princeton Uni-versity Press, Princeton, 2009.

71



sports, music, art, joint outdoor activities – they are less likely to listen to recruit-ers from terrorist organisations on- and off-line. If young people are in a career trajectory that will lead them – after schooling and/or apprenticeships – to a se-cure and well-paid job, allowing them to afford decent housing, get married and found a family, they are unlikely to choose the uncertain career of a terrorist in the underground or a foreign fighter in a foreign country.

The reality in our world, however, is that there are tens of millions of young men and women who cannot look forward to a decent education, a permanent job, marriage to a person they can choose themselves. If they become parents, many of them will not have the means to afford educating their children to have a career at least as good as and preferably better than the one they themselves had. We live in a world where too many come to the labour market without good enough qualifications and without the prospect of a steady, well-paid job, and too many come from families that were unable to give them the loving care young people need. The absence of such resilience factors is a great concern.

The reality of every-day life of too many young people falls far short of the kind of life that they might see in television series or in documentaries about life in the developed world. The gap between what is and what could be is pain-ful. False prophets step in to put the blame for what is and what could be on distant enemies like the allegedly still imperialist West. If young people cannot realise their dreams where they find themselves situated in life but feel entitled to a better life and local governments are unwilling or unable to assist them to re-alise their dreams, they look for other solutions and pseudo-solutions elsewhere and find these in substance (drug) abuse, gangland crime participation, joining religious sects, attempting emigration, domestic political activism or joining an illegal underground organisation that engages in acts of political violence includ-ing terrorism.

Many developing countries experience a ‘youth bulge’, a demographic over-representation of the 15-24 year old who want to enter and succeed on the job market and the marriage market. In the absence of sufficient secondary and tertiary education opportunities to absorb them and in the absence of enough employment opportunities and with the possibility of emigration not present as a safety valve for aspiring young people in most cases, there is an enhanced risk that many of them can be radicalised to engage in terrorist violence.77

77 Urdal H, ‘A clash of generations? Youth bulges and political violence’ United Nations Population Division Expert Paper No. 2012/1, 2012, 9.

Alex P Schmid


The answer to radicalisation is to steer the dissatisfaction of young people into constructive channels, rather than the destruction terrorists have in mind. However, this requires a massive investment in youth education, and an invest-ment in community work which is often difficult to resource. Instead, govern-ments wishing to present and control terrorism often invest in more security forces, more counter-terrorism hardware and more surveillance and repression. Politicians who plead for the application of hard power against terrorism tend to win over those who plead for the use of soft power instruments to steer vulnerable young people away from radicalisation. Once societies are polarised, radicalisation on both sides tends to increase and escalation is more likely than de-escalation of the conflict. Once people are radicalised it is very hard to de-radicalise them. It is for this reason that prevention of radicalisation should be our top priority.

Conclusion: The way forward

At the beginning of this paper, I mentioned critical issues: (i) the definition problem; (ii) the communication problem; (iii) the political problem; (iv) the religious problem; (v)the radicalisation problem.

It is my conviction that we have failed to solve these five problems and that this is the main reason why we are losing rather than gaining ground in the fight against terrorism. There are, of course, other reasons.

In the course of my career – both in academia and in the UN – I have had a chance to talk to many people – victims, terrorists, counter-terrorists, policy-makers among them. What I have learned I tried to summarise in twelve rules for preventing and combating terrorism. It is with these twelve points that I want to conclude my contribution

Twelve rules for preventing and combating terrorism

1. Try to address the underlying conflict issues exploited by the terrorists and work towards a peaceful solution while not making substantive concessions to the terrorists themselves;

2. Prevent alienated individuals and radical groups from becoming terrorist extremists by confronting them with a mix of ‘carrot and stick’ – tactics and search for effective counter-motivation measures;

73



3. Stimulate and encourage defection and conversion of free and imprisoned terrorists and find ways to reduce the tacit or open support of aggrieved constituencies for terrorist organisations;

4. Deny terrorists access to arms, explosives, false identification documents, safe communication, and safe travel and sanctuaries; disrupt and incapaci-tate their preparations and operations through infiltration, communication intercept, espionage and by limiting their criminal- and other fund-raising capabilities;

5. Reduce low-risk/high-gain opportunities for terrorists to strike by enhanc-ing communications, energy and transportation-security, by hardening criti-cal infrastructures and potential sites where mass casualties could occur and apply principles of situational crime prevention to countering terrorism;

6. Keep in mind that terrorists seek publicity and exploit the media and the Internet to gain recognition, propagate their cause, glorify their attacks, win recruits, solicit donations, gather intelligence, disseminate terrorist know-how and communicate with their target audiences. Try to devise communi-cation strategies to counter them in each of these areas;

7. Prepare for crisis- and consequence-management for both ‘regular’ and ‘catastrophic’ acts of terrorism in coordinated simulation exercises and educate first responders and the public on how best to cope;

8. Establish an All Sources Early Detection and Early Warning intelligence system against terrorism and other violent crimes on the interface between organised crime and political conflict;

9. Strengthen coordination of efforts against terrorism both within and be-tween states; enhance international police- and intelligence-cooperation, and offer technical assistance to those countries that lack the know-how and means to upgrade their counter-terrorism instruments;

10. Show solidarity with, and offer support to, victims of terrorism at home and abroad;

11. Maintain the moral high-ground in the struggle with terrorists by defending and strengthening the rule of law, good governance, democracy and social justice and by matching your deeds with your words;

12. Last but not least: counter the ideologies, indoctrination and propaganda of secular and non-secular terrorists and try to get the upper hand in the war of ideas – the battle for the hearts and minds of those whom terrorists claim to speak and fight for.


Derivative action under the Companies Act 2015: New jurisprudence or mere codification of common law principles?Yohana Gadaffi* and Miriam Tatu**

Abstract

One of the salient features of Kenya’s Companies Act 2015 is the codification of

derivative action (the rule in Foss v Harbottle and its exceptions). While the

statutory provision for derivative action is aimed at addressing the challenges

that arose from common law derivative action, the statutory derivative action

fails to achieve this outcome. At best, it is a restatement of the common law prin-

ciples flowing from the rule in Foss v Harbottle and its exceptions.

Introduction

Derivative action is one of the exceptions to the principles established in the landmark case of Foss v Harbottle.1 It can simply be defined as a means by which a member of a company who is dissatisfied with the acts or omissions of the directors of the company owing to the fact that such acts or omissions have occasioned harm to the company, can institute court proceedings to seek relief on behalf of the company for the wrongs it has suffered. While it was initially an exception to the rule in Foss v Harbottle, the derivative action has now been codified in the Companies Act 2015 (the Act).2 Despite the codification, the question that still begs to be answered is the extent to which derivative action is a

1 (1843) 2 Hare 461.2 See generally Part XI, Companies Act (Act No. 17 of 2015).

LL.BHons,CPS(6),GraduateAssistant,StrathmoreLawSchool,Post-graduatestudentattheKenya School of Law.

LL.BHons,LawyeratMMCAfrica,Post-graduateStudentattheKenyaSchoolofLaw.

General articles

Yohana Gadaffi and Miriam Tatu


potent and effective tool to prevent loss to a company due to the misadventures of directors. Consequently, this article problematises the issue by examining the efficacy, practicability and effectiveness of statutory derivative action as a tool for safeguarding the interests of a company from the actions of wayward directors. The discussion is especially relevant in the wake of increased cases of corporate fraud, allegedly involving complicit directors, which have occasioned harm to the companies concerned as well as third parties.3

The article is divided into four main thematic areas. The first part traces the origins of derivative action, its development and eventual codification in the Act. The second part of the article discusses various court decisions illustrating how Kenyan courts have interpreted and applied the common law principles on the rule in Foss v Harbottle and its exceptions. The discussion of the cases seeks to establish the gaps (if any) that were identified by the courts with regard to derivative actions before the codification of the rule. Part three analyses Part XI of the Act which contains provisions on the derivative claim. This analysis seeks to establish the extent to which statutory derivative action is similar to or departs from common law derivative action. The discussion also sets the stage for the last part of the article which critiques the statutory derivative action. The last part entails a discussion on the gaps that exist in the statutory derivative action as currently framed.

In enacting the Act, Kenya borrowed heavily from the United Kingdom’s (UK) Companies Act of 2006 (UK Act). An examination of the UK Act, as well as decisions emanating from UK courts on derivative actions, would provide a useful comparison of the extent to which the provisions of Kenya’s Act on de-rivative actions will aid the cause of the members who seek to right the wrongs inflicted on a company by rogue directors. Given that there are few (if any) cases that have been decided by Kenyan courts on statutory derivative action, the arti-cle utilises decisions on derivative actions from courts of the UK that were based on the statutory derivative action of the UK Act. The article also discusses deriv-

3 For instance, over the past ten months, three banks in Kenya, namely Dubai Bank, Imperial Bank and Chase Bank, have been placed under receivership leading to loss of deposits by their clients. Part of the reason for the closure of the three banks was due to either illegal or unethical conduct by the directors combined with a cocktail of factors which led to the fall of the companies. See ‘Vincent Agoya: Warrants of arrest issued against Dubai Bank directors’ Daily Nation, 20 November 2015 http://www.nation.co.ke/news/Warrants-of-arrest-issued-against-Dubai-Bank-directors/-/1056/2964484/-/2jjo8fz/-/index.html on 11 August 2016; ‘Geoffrey Irungu: Bank gave Sh16.6bn unsecured loans to directors, CBK says’ Daily Nation, 7 April 2016 http://www.nation.co.ke/news/Rogue-bank-goes-down-with-Sh96b/1056-3150706-q2kfehz/index.html on 11 August 2016; ‘Im-perial Bank directors freed on Sh18m cash bail’ Daily Nation, 29 March 2016 http://www.nation.co.ke/news/Imperial-Bank-directors/1056-3138214-c8pwdnz/index.html on 11 August 2016.

Derivative action under the Companies Act 2015


ative action in the United States of America (USA). The USA has been selected for the comparative analysis due to the fact that its procedures on derivative action differ significantly from those of other countries whose law on derivative action mirrors the common law position. The effect of the different procedures has been that obtaining redress through the derivative action is much easier in the USA than Kenya and other countries which adopted the common law derivative action with minimal if any modification. Based on the discussion undertaken in the sections highlighted above, the article ultimately makes its conclusion on the extent to which derivative action is a potent tool for shareholders to prevent loss to a company due to failure by its directors to discharge their duties.

Derivative action at common law: A historical appraisal

A derivative action/claim has been defined as a representative claim on be-half of all shareholders other than the defaulting shareholders against the wrong-doers and the defaulting shareholders, and the company as a nominal defendant.4 It is derivative since the right to sue is not vested directly in the shareholder who brings the derivative claim but flows from the right of the company to institute proceedings in its own name. Put simply, the shareholder derives the right from the rights that are vested in the company.

The derivative claim traces its origins to the landmark case of Foss v Har-bottle.5 The case involved two shareholders who brought an action against the company’s directors and promoters alleging that the directors had defrauded the company by selling it land at an exorbitant price. The two shareholders con-tended that as a result of the exorbitant prices, the company had incurred losses as it had paid a higher price than it would have had the land been sold to it at the prevailing market rates. Of importance was the fact that the land was sold to the company by its directors. The two shareholders, therefore, instituted proceedings on their own behalf and on behalf of all the other shareholders of the company except the defaulting shareholders. The Court held that the action of the two claimants could not proceed as the individual shareholders were not the proper claimants. The proper claimant was the company as it was the one which had suffered the alleged wrongs. In the words of Wigram VC:

4 Hicks A and Goo S, Cases & materials on company law, 5ed, Oxford University Press, Oxford, 2004, 380. See also, Ogego J, ‘Old wine in new wine skin: An analysis of the derivative actions under the Com-panies Act 2015 (Kenya)’ http://www.academia.edu/19367883/Old_Wine_in_New_WIneskin_A_review_of_derivative_actions_under_Companies_Act_2015_Kenya_ on 13 June 2016.

5 (1843) 2 Hare 461.



It was not, nor could it successfully be, argued that it was a matter of course for any indi-vidual member of a corporation thus to assume to themselves the right of suing in the name of the corporation. In law, the corporation and the aggregate members of the corporation are not the same thing for purposes like this; and the only question can be whether the facts alleged in this case justify a departure from the rule which, prima facie, would require that the corporation should sue in its own name and in its corporate character, or in the name of someone whom the law has appointed to be its representative…whilst the supreme governing body, the proprietors at a special general meeting assembled; retain the power of exercising the functions conferred upon them by the Act of Incorporation, it cannot be competent to individual corporators to sue in the manner proposed by the plaintiffs on the present record.6

In arriving at this determination, the UK Vice Chancellor’s Court observed that at law, a company enjoys a separate legal personality from its shareholders. Therefore where a company suffers a wrong, the company itself should insti-tute legal proceedings to remedy the wrong. This is what is referred to as the proper plaintiff principle. The case also established the primacy of the ‘internal management rule’ whose underlying rationale is that for a company to function effectively, the will of the majority of the members must prevail. The internal management rule as applied to derivative actions specifically provides that if the shareholders in a general meeting can ratify the wrongful act committed against the company, then individual shareholders cannot bring a derivative action on behalf of the company. In other words, it is the members of the company, and not the courts, who are best placed in making decisions about the company. Therefore, courts will adopt a restrictive approach so as not to interfere with the effective functioning of the company.

There are two main justifications for the rule in Foss v Harbottle. First, it has been argued that the proper plaintiff principle prevents a deluge of suits which may arise if the floodgates were open to all shareholders to bring derivative claims whenever they feel that the company has been wronged.7 To guard against this, only the company ought to be allowed to institute proceedings for the wrongs it suffers. The second justification for the rule is that it may be pointless for a member to bring a derivative claim for a wrong suffered by the company yet the company, through its organs, can ratify the wrongs complained of.8 In effect, this will render any litigation founded on such wrongs an action in futility as the ac-tions complained of will no longer be wrongs but rather proper corporate acts.

6 Foss v Harbottle (1843) 2 Hare 462.7 Bourne N, Bourne on company law, 6ed, Routledge, London, 2013, 227; Ogolla J, Company law, 2ed,

Focus Books, Nairobi, 2006, 245.8 Bourne, Bourne on company law, 227.



While the rule in Foss v Harbottle is well intentioned and justifiable on some grounds, it also has certain inherent risks and challenges as far as the institu-tion of derivative claims is concerned. The first challenge flows from the proper plaintiff rule which mandates the organs of the company to act on its behalf on all matters and only where such organs fail to discharge their mandate can the courts allow a derivative action.9 In the event that the organs which are mandated to act on behalf of the company are controlled by the wrongdoers, it would be almost impossible for such organs to act in the best interest of the company in situations where the best interests of the company require that the organs con-cerned should institute legal proceedings on behalf of the company. The second challenge flows from the ‘ratification rule’ which provides that members of a company may, during the general meeting, ratify the acts or omissions which are the subject of the derivative suit. It is arguable that the ‘ratification rule’ could serve to limit the scope of derivative actions severely as most wrongs suffered by a company are ratifiable by members during the general meeting.10 It is these concerns that led to the subsequent enunciation by the courts of specific circum-stances where individual shareholders can be allowed to bring a derivative action on behalf of the company.

While the exceptions to the rule were developed in various cases, Jenkins LJ, in Edwards v Halliwell,11 summarised the exceptions under three limbs thus:

The cases falling within the general ambit of the rule are subject to certain exceptions...in cases where the act complained of is wholly ultra vires the company, the rule has no appli-cation because there is no question of the transaction being confirmed by any majority…where what has been done amounts to what is generally called in these cases a fraud on the minority and the wrongdoers are themselves in control of the company, the rule is relaxed in favour of the aggrieved minority who are allowed to bring what is known as minority share-holders’ action on behalf of themselves and all others. The reason for this is that, if they were denied that right, their grievance could never reach the court because the wrongdoers themselves, being in control, would not allow the company to sue…the rule did not prevent an individual member from suing if the matter in respect of which he was suing was one which could validly be done or sanctioned, not by a simple majority of the members of the company or association, but only by some special majority…12

Each of these exceptions and an additional one not discussed in the above-mentioned case excerpt deserve particular mention.

9 Kershaw D, Company law in context: Text and materials, 2ed, Oxford University Press, Oxford, 2012, 602.10 Kershaw, Company law in context, 602.11 [1950] 2 All ER.12 Edwards v Halliwell [1950] 2 All ER.



Ultra vires acts

This exception provides that while a company, through the general meet-ing of shareholders, can ratify the acts of directors, the ratification cannot be extended to acts that are outside the scope of the company’s powers as per its constitutive documents. Consequently, members of a company are allowed to bring derivative actions provided they can establish that the act complained of is outside the scope of what is permissible under the company’s constitutive documents.13

Requirement of a special majority

This exception arises where a company’s constitutive documents provide for a special majority approval before the company can undertake certain ac-tions. Where such actions are undertaken without a special majority, an individual shareholder may institute a suit in his/her own name for the violation of the company’s constitution. It is important to note that a simple majority will not suffice to sanitise an act which requires approval by a special majority.

Fraud by those in control

Just as was the case with ultra vires acts, fraud cannot be ratified by the com-pany. Where those in control of the company commit fraudulent acts against a company, it is arguable that by virtue of their control over the company, the company will not institute proceedings for the fraudulent acts committed against it. Consequently, the exception allows a member of such company to institute a derivative claim on behalf of the company. In Prudential Assurance Company v Newman Industries,14 the UK Court of Appeal stated that the issue of fraud against the company could be considered where it was established that the board of the company was under the control of fraudsters.

The personal rights exception

The personal rights exception arises where a company infringes the rights of a member or members of the company where such rights are provided for by

13 See Parke v The Daily News Ltd [1962] Ch 927 and Simpson v Westminster Palace Hotel Co (1860) HL Cas 712. Both cases are illustrative of the fact that ultra vires acts could not be ratified by a company.

14 [1980] 2 All ER 341.



the company’s constitution. In such instances, as the company is unlikely to bring a suit on behalf of the aggrieved members, an individual shareholder may insti-tute proceedings against the company either on his own behalf or on his own behalf and on behalf of all other shareholders whose rights have been infringed by the company.15

The four common law exceptions to the rule in Foss v Harbottle also found enunciation in the jurisprudence of Kenyan courts. This was especially due to the fact that it was not until 2015 that Kenya codified derivative claims through the enactment of the Act. While the historical appraisal largely focuses on the formulation and development of the rule and its exceptions in the UK, a brief discussion on how Kenyan courts have applied the rule and its exceptions in the years preceding the enactment of the Act is important. This is because it pro-vides the background against which the codified derivative action is evaluated.

Interpretation and application of the rule in Foss v Harbottle and its exceptions in Kenyan courts

Kenyan courts have over the years affirmed the rule in Foss v Harbottle, as well as its exceptions. While there are few if any cases that have been decided on the statutory derivative claim as provided for in the Act, there exist numerous court decisions based on common law principles. This section uses a number of such cases illustratively.

In Dr Jane Wambui Weru v Overseas Private Investment Corporation,16 the Court, in affirming both the proper plaintiff principle and the internal management rule held as follows:

By derivative suits, the minority shareholder(s) feeling that wrongs have been done to the company which have not been rectified by the internal mechanisms…because the majority shareholders are in control of the company, come to court as agents of the wronged com-pany to seek relief(s) for the company itself, all the shareholders including the wrongdoers, and not for the personal benefit of suing the minority shareholders…it is a cardinal principle in company law that it is for the company and not for the individual shareholder to enforce rights and actions vested in the company…mere irregularity in internal running of a com-pany cannot be a basis for one to bring a derivative suit for such can be rectified by a vote/

15 See for instance, Pender v Lushington (1877) 6 Ch D and Wood v Odessa Waterworks Co (1889) 42 ChD 636. In both cases, individual shareholders were able to institute proceedings against the companies which had infringed their rights.

16 [2012] eKLR.



resolution at the company’s meetings and if a shareholder contemplates using a personal claim of infringement of his rights, then a derivative suit will be of no avail as the relief must be for the benefit of the company.

In Atlaf Abdulrasul Dadani v Amini Akberazi Manji & 3 Others, (the Dadani Case),17the Court held as follows:

If due to an illegality the shareholder perceives that the company is put to loss and damage but cannot bring an action for relief in its own name, such a shareholder can bring an action by way of derivative suit.

Charles Meto v Amos Kosgey & 3 Others18 is illustrative of the principle that leave to bring a derivative claim before the courts will only be granted where the alleged wrong was suffered by the company and not the individual shareholder. In this case, the Court dismissed the plaintiff ’s application for leave to institute a derivative action on account of the fact that the plaintiff was not complain-ing that the company had been wronged. As per the judge’s examination of the evidence adduced, the plaintiff only appeared to be at best alluding to the fact that the company was used by his fellow shareholders as a vehicle to defraud him. Consequently, the Court dismissed the plaintiff ’s claim as it could not meet the threshold required to grant leave to commence a derivative action.

In the absence of a specific law governing the procedure on instituting a derivative claim, Kenyan courts have sought to explain the procedure to be followed when an aggrieved shareholder seeks to bring a derivative claim. The position of the courts was that in seeking the leave of the court to institute the derivative action, the plaintiff must first demonstrate that he has locus standi to institute the proceedings. Additionally, the plaintiff must also establish a prima facie case. These requirements are illustrated in CMC Holdings Limited case where the learned judge held that:

…the long-standing practice, and which I find reasonable, has always been that before a derivative action is filed, the applicant brings to court an ex parte application for leave, sup-ported by a detailed affidavit so as to demonstrate that he has locus standi to institute such an action and that he has a prima facie case.19

The holding above also highlights the fact that the application for leave to commence a derivative claim should be brought ex parte rather than inter partes. Arguably, the rationale for the ex parte application is that by their very nature, derivative claims entail allegations that directors have committed wrongs against

17 [2004] eKLR.18 [2014] eKLR.19 In the Matter of CMC Holdings Limited [2012] eKLR.



the company. Thus, where the application for leave is heard inter partes rather than ex parte, there is a likelihood that the directors of the company concerned may try to scuttle the application. Once leave is granted, the application and the plaint are served on the company as well as the directors who allegedly occasioned the loss complained of.

However, in the Jane Wambui case discussed above, the Court, in addressing the procedure on how to bring a derivative claim, stated as follows:

The permission or leave to continue with a derivative action is sought after the suit has been instituted…the plaint plus the application to continue with the derivative action must be served before the application is heard and the application had to be heard inter partes because the plaintiff has to demonstrate a prima facie case by the company against the wrong doing directors and that the plaintiff should bring the case before the permission, the proceedings are virtually stalled.20

Similarly, in the Dadani case discussed above, the Court affirmed the po-sition that one must institute the suit before seeking the leave of the court to continue with a derivative action.

The CMC and Jane Wambui cases point to different approaches with regard to when one should seek leave of the court to institute the derivative claim. Additionally, while in the former the court stated that the application is made ex parte, in the latter, it was held that the application should be heard inter partes. It is noteworthy that the Court in the CMC case decried the lack of a statutory provision addressing the issue of the time of making the application for leave to institute a derivative claim. In addition to evaluating other areas of concern with regard to the statutory derivative claim, the discussion on the statutory derivative claim in the subsequent parts of this article also examines the extent to which the Act has addressed the concerns emerging from the different holdings in the CMC and Jane Wambui cases.

The courts have also defined the evidentiary threshold required to establish the prima facie case in order to found a derivative suit where the plaintiff seeks to rely on the grounds of fraud. In Tash Goel Vedprakash v Moses Wambua Mutua and Rabbit Republic Limited,21 the Court held that, ‘At the stage of leave, there is no requirement that full proof of fraud be established by the applicant. What is needed is prima facie evidence of fraud on the company.’22

20 [2012] eKLR.21 [2014] eKLR.22 Tash Goel Vedprakash v Moses Wambua Mutua and Rabbit Republic Limited [2014] eKLR.



Gikonyo J, in explaining what amounts to fraud in seeking to be granted leave for an application for a derivative action, expressed himself thus:

Fraud covers even those wrongs which the directors commit for the benefit of other peo-ple. Any fraudulent transaction by the board which is calculated to benefit others or one or more of the board members, and on which the company has failed or the directors have deliberately refused to take action entitles a minority shareholder to file a derivative suit on behalf of the company.23

A further demonstration of the evidentiary threshold to establish a prima facie case in order to found a derivative claim is illustrated in the Dadani case where the High Court held that in a situation where the plaintiff shareholder owns 50% of the shares in a company and thus such shareholder cannot es-tablish that the ‘majority’ shareholders are in control of the company, all that such a plaintiff has to do in order to be allowed leave to institute a derivative action is to demonstrate that a board resolution was not possible.24 Once this is established, the plaintiff will have demonstrated his locus standi to institute the derivative action. In David Langat v St Luke’s Orthopaedic & Trauma Hospital Limited & 2 Others,25 the issue for determination before the court was whether a shareholder who held 50% of the shares in a company can be granted leave to institute a derivative action as one of the exceptions to the rule in Foss v Harbot-tle. The Court held that the need to establish a majority or minority before being granted leave to institute a derivative action may lead to injustice. According to the Court, the paramount function of the court is to ensure that justice is done. Consequently, the Court stated that it would allow leave for the applicant to institute the derivative claim since despite owning 50% of the shares of the company, the applicant had demonstrated that the company had been injured by the acts of one of its shareholders,

The position which a shareholder in a 50:50 situation finds himself in is no less different from the position that a minority shareholder finds himself in. A minority shareholder is handicapped and frustrated because he can pass no resolution to benefit the company. His views are prone to being trampled upon by the majority and he finds himself hamstrung, unable to do anything on behalf of the company. That position is similar to that in which a person holding 50:50 shareholding finds himself. He is unable to pass any resolution because the other half must accede to it. If the other half does not permit the resolution to pass then the one shareholder is stuck, just as he would be stuck if he was a minority…in our present case, there is strictly no majority and no minority. The person against whom the action is intended is, however, in de facto control of all resolutions, including resolutions to sue. There

23 Silouanos Samuel Mwangi Gichanga v Makarios Tillyrides & 5 Others [2015] eKLR.24 [2004] eKLR.25 [2013] eKLR.



is no other way that Sunrise Ltd (the company) can put forth any claims separate from hav-ing a derivative action filed on its behalf.26

The discussion on the interpretation and application of the rule in Foss v Harbottle and its exceptions by Kenyan courts illustrates that the courts have by and large stuck to the parameters that were established in the leading cases on the topic in the UK where the principles were first developed. The next section discusses the statutory derivative claim and the extent to which it is similar to or departs from the common law principles on derivative action.

An analysis of Part XI of the Companies Act 2015

As indicated earlier, this section discusses statutory derivative claims as pro-vided for in the Act. Unlike the repealed Companies Act,27 the Act provides for derivative action thus codifying what were previously common law principles.28 It is arguable that codification of derivative actions is aimed at addressing some of the concerns that had been raised about the rule in Foss v Harbottle and its various exceptions.29 As such, this section primarily seeks to evaluate the extent to which codification of derivative action may provide clarity on the concerns that have been raised about the common law principles on derivative action. Since Part XI of Kenya’s Act was borrowed from and is therefore similar to Part 11 of the UK Act, the discussion in the section weaves in relevant criticisms that have been advanced against the statutory derivative action in the UK.

The Act defines a derivative claim as proceedings brought by a member of a company in respect of a cause of action vested in the company and seeking relief on behalf of the company.30 According to this definition, there are certain conditions that must be present in order to institute proceedings based on a derivative claim. First, the claim must be by a member of the company. In other words, persons who are not members of the company cannot bring a derivative claim before the courts. It is important to note that it is immaterial whether the person seeking to bring the derivative claim became a member of the company

26 [2013] eKLR.27 Chapter 486, Laws of Kenya.28 See generally Part XI, Companies Act (Act No. 17 of 2015)29 For instance, Julia Tang describes the common law derivative action, which was also applicable in

Kenya, as obscure, complex, rigid, old-fashioned and unwieldy. See Tang J, ‘Shareholder remedies: Demise of the derivative claim’ 1 University College London Journal of Law and Jurisprudence, 2 (2012), 178.

30 Section 238(1), Companies Act (Act No. 17 of 2015).



before or after the cause of action arose.31 Second, the cause of action must be vested in the company. Put differently, while it is a member who brings the derivative claim, such member will be seeking a remedy on behalf of the com-pany for a wrong that was suffered by the company. Consequently, any awards made by the court will go to the company itself and not to the member who brought the derivative claim. At best, the member may only be indemnified by the company for the costs of the suit. The third condition that must be present in order to found a derivative claim is that the relief sought must be on behalf of the company. The member bringing the derivative action must not have any ulterior motive in bringing the claim. His/her claim must be solely to seek relief on behalf of the company.

The Act states that a derivative claim may only be brought in respect of a cause of action arising from an actual or proposed act or omission involving neg-ligence, default, breach of duty or breach of trust by a director of the company.32 However, the right to institute a derivative claim by a member of the company is not absolute as the Act requires one to seek leave of the court in order to continue with a derivative claim.33 From the above provisions, it is deducible that while the Act enumerates the grounds upon which derivative actions can be insti-tuted, it also addresses the inherent risk of instituting multiple suits by aggrieved shareholders. This is achieved through providing for the establishment of a prima facie case as a control mechanism to ensure that only deserving cases proceed to the substantive claim of the derivative action.

By requiring the claimant to apply to the court in order to be allowed per-mission to continue with a derivative claim, the Act seeks to respond to the chal-lenge posed by the different approaches adopted by the courts with regard to the time of seeking leave of the court and whether the application should be heard inter partes or ex parte. The answer to the latter concern is more straightforward as the Act seems to favour an ex parte application. This flows from the fact that the relevant sections of Part XI of the Act only state that the applicant should seek leave of the court to continue with the derivative claim and that upon evaluating the application, the court may make any orders it deems fit including dismissing or allowing the claim.34 There is no requirement on the company or its directors to enter any appearance at this point. The company is only to enter appearance

31 See section 238(5), Companies Act (Act No. 17 of 2015).32 Section 238(3), Companies Act (Act No. 17 of 2015).33 Section 239(1), Companies Act (Act No. 17 of 2015).34 See generally section 239, Companies Act (Act No. 17 of 2015).



where the application for leave is successful and the court has given direction on the evidence to be produced by the company.35

However, the Act fails to address the time at which the application should be made.36 Consequently, the Act does not provide a chiasmus to the various approaches adopted by the courts in such cases as the CMC, Jane Wambui and Dadani. Perhaps guidance can be sought from the UK legislation. After enact-ing the Companies Act 2006, the UK also amended its Civil Procedure Rules by inserting a new section, 19C, which addresses derivative claims. The section not only explicitly provides for an ex parte hearing for a derivative claim but also ad-dresses the issue of the time when the leave is to be sought.37 Accordingly, the court first dispenses with the application and only where leave is granted will the claimant proceed to serve the company with the plaint and the permission for leave. It remains to be seen whether Kenyan courts will stick to this approach as happened in the CMC case. Perhaps appropriate amendments to the Civil Proce-dure Rules 2010 may address the question of the time of making the application with a degree of finality.

A member of a company can also apply for permission to continue a claim brought by the company on the grounds that the manner in which the company commenced or continued the claim amounts to an abuse of court process; the company has failed to prosecute the claim diligently and it is appropriate for the member to continue the claim as a derivative claim.38

The Act also sets out a number of factors that courts should consider in de-ciding whether to grant an applicant leave to continue with the derivative claim. The factors include: whether the member seeking to continue the action is acting in good faith; the importance that a person acting in accordance with his duty to promote the interests of the company would attach to continuing with the derivative claim; whether the breach of duty is likely to be ratified by the com-pany; whether the company has decided not to pursue the claim and whether the breach complained of could be pursued in the member’s own right rather than on behalf of the company.39

35 See section 239(3)(a), Companies Act (Act No. 17 of 2015).36 See generally section 239, Companies Act (Act No. 17 of 2015).37 See generally Part 19, Practice Direction 19C on Derivative Claims, Civil Procedure Rules (Rules and

Directions) (UK).38 Section 240, Companies Act (Act No. 17 of 2015).39 Section 241 (2), Companies Act (Act No. 17 of 2015).



The Act remedies the situation where an uninterested member, acting un-der the orders of the management, would institute a derivative claim so as to bar other genuinely interested members from instituting the derivative claim. The Act does this by providing that a member can apply for permission to continue a derivative claim brought by another member.40 Such an application should be based on any of the following grounds: that the manner in which the proceed-ings were commenced or continued amounts to an abuse of the process of the court; that the claimant has failed to prosecute the claim diligently, and that it is appropriate for the applicant to continue the claim.41

The Act also provides for instances where the courts should deny a mem-ber’s application to continue a derivative claim. These include: where the actual or proposed breach of duty has been authorised or ratified by the company, or where a person exercising independent judgment would not seek to continue the claim.42

An analysis of the various provisions of Part XI of the Act reveals that the provisions are essentially a codification of the common law principles on deriva-tive action and its exceptions. While it is hoped that the codification would ad-dress the criticisms that have been levelled against the rule in Foss v Harbottle and its exceptions, there are still a number of gaps which may serve to have a negative impact on the effectiveness of the statutory derivative action. A comparative analysis with a country that has a more flexible approach to the derivative claim lays a good basis for discussing the gaps in derivative action as provided in the Act. The next section discusses derivative action in the USA.

Derivative action in the USA

While the various states comprising the USA have different laws on various matters, with regard to derivative action, civil procedure and laws governing cor-porations mirror the Federal Rules of Civil Procedure and the Model Business Corporations Act which is the basis for corporate law in most US states. Accord-ingly, this article limits itself to a comparative analysis with the Federal Rules of Civil Procedure and the Model Business Corporations Act.

40 Section 242 (1), Companies Act (Act No. 17 of 2015).41 Section 242 (2), Companies Act (Act No. 17 of 2015).42 Section 241 (1), Companies Act (Act No. 17 of 2015).



The statutory derivative action in the USA, while directly traceable to com-mon law derivative action, differs significantly from the latter. Unlike common law derivative action as well as the statutory derivative action in Kenya and the UK, one does not have to seek leave of the court in order to institute derivative action proceedings. Accordingly, claimants seeking to bring derivative claims in the USA do not face the evidential burden that their counterparts in countries such as Kenya and the UK face in meeting the evidential threshold required to establish a prima facie case in order for the court to grant leave to proceed with the substantive claim.

As discussed earlier in this contribution, a member who seeks to institute a derivative action in Kenya and the UK is disadvantaged as far as the acquisition of relevant information is concerned. Often, such information is in the posses-sion of the directors of the company who may not be willing to release it as it could be used against them in the derivative action suit. Consequently, a member of a company who wishes to use this information to institute derivative action proceedings may not be able to access it with the result that his/her chances of meeting the evidential threshold required to establish a prima facie case will be se-verely limited. This diminishes in turn the prospects of the court granting such a party leave to institute the substantive claim. In this regard, the ‘no leave’ require-ment espoused in the USA Federal Rules of Civil Procedure is a plausible option as regards enhancing the potency of derivative action as a tool for preventing loss to companies from acts or omissions of the company’s directors.

The general requirements that a party who seeks to institute derivative ac-tion proceedings in the USA must meet include: fair and adequate representation of the interests of members who are similarly situated in enforcing the rights of the company;43 membership of the company at the time the transaction com-plained of arose, and demonstration of any steps that the party took in efforts to have the wrong complained of addressed by the directors of the company.44 The steps entail making a written demand to the directors requiring them to take the necessary corrective action. Where such steps are unsuccessful, the complaint must state the reasons for not obtaining the action. Where the party completely fails to make any effort, the complaint must state the reasons for not making the effort.45 Additionally, a party will only be allowed to commence derivative action proceedings after 90 days from the date s/he made the written demand to the

43 Rule 23.1, Federal Rules of Civil Procedure (USA); Section 7.41, Model Business Corporations Act (USA).44 Rule 23.1, Federal Rules of Civil Procedure (USA); Section 7.41, Model Business Corporations Act (USA).45 Rule 23.1, Federal Rules of Civil Procedure (USA).



company.46 The requirement for the 90 days period need not be met in instances where the company has informed the party making the demand that the demand has been rejected or where the company may suffer irreparable loss if the action is not instituted before the 90 days are over.

The requirements highlighted above reflect a more flexible approach to derivative actions than the requirements to institute derivative actions under both common law and the statutory derivative action in Kenya and the UK. A key fea-ture of statutory derivative action in the USA that is not present in both Kenya and the UK is the requirement of making a written demand before one can begin to institute the derivative proceedings. The written demand enables companies to take remedial action to address the concerns of the aggrieved shareholders. Effectively it serves as a filter to ensure only the deserving cases proceed to the courts. This is unlike the situation in Kenya and the UK where an aggrieved shareholder has no duty to seek internal remedies from the company’s directors but can proceed directly to the court to commence the process of seeking re-dress for the wrong suffered by the company.

Consequently, the statutory derivative action in the USA is more effective in enabling shareholders of a company to prevent loss to a company due to the mis-adventures of directors. This is because it affords an aggrieved shareholder the opportunity to seek an internal remedy and where this is rejected or frustrated, then the shareholder can proceed to court, armed with the company’s rejection of the written demand. It is arguable that a derivative claim instituted against such a background stands a higher chance of success than a claim where a mem-ber proceeds directly to the court without seeking internal remedial action from the company. Additionally, the requirement for written notice serves as a filter mechanism to reduce the number of derivative action suits in courts as many po-tential suits are resolved at the company level. This is different from Kenya and the UK where all potential derivative action suits end up before the courts which then use the requirement to establish a prima facie case as a filter mechanism to determine which suits merit a substantive trial.

The Model Corporations Act further provides that upon the termination of any derivative action proceedings, the court may order the company to pay the plaintiff reasonable expenses (including advocates’ fees) incurred in the proceed-ings if it finds that the proceedings have resulted in a substantial benefit to the

46 Section 7.42, Model Business Corporations Act (USA).



company.47 Similarly, where the court finds that the plaintiff instituted the pro-ceedings without reasonable cause or for an improper purpose, it may order such plaintiff to pay any defendant to the proceedings reasonable fees that were in-curred in the litigation. While the latter provision is also available, albeit through the court’s discretion, under the statutory derivative action in Kenya and the UK, the provision to reimburse the plaintiff for the costs incurred in instituting the derivative claim is not available under the Act. This may dissuade aggrieved shareholders of a company from instituting derivative action proceedings as they have to meet all the costs of the suit without any possibility of recovering the ex-penses from the company even when the proceedings result in a substantial gain to the company. This may lead in turn to instances where a company continues to suffer loss as a result of the actions of directors, yet such actions could have been curtailed through the institution of derivative proceedings.

The comparative analysis in this section identifies the relative strengths of statutory derivative action in the USA that have arguably made it more effec-tive than common law derivative action and the statutory derivative action in Kenya. The discussion highlights the inadequacies in statutory derivative action as provided for under the Act. The next section builds upon this discussion as it examines the gaps in derivative action as provided for under the Act.

Gaps in derivative action as provided for in the Companies Act, 2015

This section discusses gaps in derivative action as provided for in the Act. The discussion is undertaken under four limbs, namely: the requirement to establish a prima facie case, the duty to promote the success of a company, the good faith requirement and the costs of the derivative action litigation.

Establishing a prima facie case

The court is to dismiss an application for a derivative claim if the support-ing evidence filed by the applicant does not disclose a prima facie case for giving permission.48 It is arguable that although well intentioned, the prima facie case obligation may impose an unnecessary hurdle for applicants.49 If the intention

47 Section 7.46, Model Corporation Act (USA).48 Section 239(2), Companies Act (Act No. 17 of 2015).49 Tang, ‘Shareholder remedies’, 181.



of providing derivative actions in statute was to create ‘modern, flexible and accessible criteria’,50 the inclusion of a prima facie case has not assisted in deliver-ing such criteria. Moreover, the prima facie obligation may act as a deterrent for potential applicants.51

A further challenge that flows from the prima facie requirement is that a member of a company who seeks to bring a derivative claim may not be in a position to obtain all the relevant information that might form the basis of his evidence to establish a prima facie case. This is due to the fact that such informa-tion may be in the possession of directors who may not be enthusiastic to share it with a member who in essence intends to use the information to sue them. Addi-tionally, while the Act provides for the need to establish a prima facie case, it does not provide any guidance on the evidentiary threshold that a person seeking to bring a derivative claim must meet in order to establish the prima facie case. While the requirement for establishing a prima facie case was intended to guard against frivolous suits, the uncertainty with regard to the evidentiary threshold to be met in establishing a prima facie case as well as the fact it may be difficult for a member to obtain the required information to meet the evidentiary threshold may serve to deter potential applicants from instituting derivative actions.

Duty to promote success of the company

The Act provides that a director in a company shall exercise independent judgement.52 The repealed Companies Act did not have this provision. If the decisions of directors, in light of the business judgement rule, are to remain centre stage in the interpretation of Section 144, this can ‘operate to abrogate the court’s discretion in favour of that of the company’s management, who could effectively scupper any derivative claim.’53 The business judgement rule is a le-gal principle that makes officers of a company immune from liability for loss incurred in corporate transactions that are within their authority and power to make when sufficient evidence demonstrates that the transactions were made in good faith.54 This section therefore touches on the concerns that deferring to the judgment of the company’s management will hinder the pursuance of derivative

50 See UK Law Reform Commission, Shareholder remedies report, 1997, 6.51 Tang, ‘Shareholder remedies’, 181.52 Section 144, Companies Act (Act No. 17 of 2015).53 Lowry J and Reisberg A, Pettet’s company law: Company and capital markets law, 3ed, Pearson Longman,

Harlow, 2009, 239.54 Lowry and Reisberg, Pettet’s company law, 239.



claims.55 This is because few directors will pursue a derivative claim for reasons such as reputational damage to the company, high financial costs and disruption to management but will now be able to justify their reasons by reference to their good faith judgment under Section 144. The interpretation of Section 144 ulti-mately lies with the courts whose role is to exercise tight judicial control.56

The case of Lesini and Others v Westrip Holdings Ltd and Others57 is significant for clarifying Section 241(1)(a), which is to the effect that the court will not grant a member leave to institute a derivate claim if a director exercising independent judgement does not institute such a claim, applies ‘only where the court is satis-fied that no director acting in accordance with his or her duty to promote the success of a company, would seek to continue the claim’.

Further, in Lesini,58 Lewison J, while examining whether there was a man-datory bar to instituting a derivative claim, provided a list of factors which a director acting in accordance with Section 172 of the UK Act, which is similar to Section 144 of Kenya’s Act, would consider. This includes factors such as the size of the claim, cost of proceedings, disruption to the company’s activities and company’s ability to fund the proceedings. Though not a Kenyan case, the Lesini case may prove useful for lawyers and applicants seeking an indication of what Kenyan courts may deem important as factors for directors to consider before declining to institute a suit.

It may take many more years before a substantive body of case law on the interpretation of Section 144 within Section 241(1)(a) is built. The courts will ini-tially have to grapple with the Act’s lack of clarity until a proper footpath is built.

Good faith

The applicant’s good faith in bringing a derivative claim is one of the dis-cretionary factors the courts must take into account in considering whether to give permission.59 Unfortunately, ‘good faith’ is not defined under the Act. This is regrettable because it may lead to uncertainty in the application of the test dur-ing the permission stage and therefore ‘to complexity of case law.’60

55 Lowry and Reisberg, Pettet’s company law, 187.56 HL Deb 27 February 2006, vol 679, col GC5 (Lord Goldsmith). 57 [2009] EWHC 2526 (Ch).58 [2009] EWHC 2526 (Ch).59 Section 241(2)(a), Companies Act (Act No. 17 of 2015).60 Poole J and Roberts P, ‘Shareholder remedies: Corporate wrongs and the derivative action’ Journal of

Business Law (1999), 107.



However, the UK Law Reform Commission on Derivative Action stated that it favoured the test of ‘honestly and with no ulterior motive’ although it rec-ognised that an applicant who may benefit commercially and thus has an ulterior motive, may still be considered by the courts as an appropriate person to bring the action.61 This follows the general proposition that courts wield considerable discretion in determining whether a derivative claim should proceed or not. An explicit definition may have been restrictive.62 Nevertheless, given the courts pen-chant for dismissing derivative claims, it is questionable whether the court’s exer-cise of discretion would be any better. It may be the lesser of two evils. The Law Commission considered that good faith should not be a prerequisite for leave.

Barrett v Duckett,63 though decided before the enactment of the UK Act, is instructive in construing the application of good faith under Kenya’s Act. The Court of Appeal denied the applicant locus standi as she had an ulterior motive in bringing the claim, namely, her personal grievances against the defendants. She was not pursuing the derivative claim bona fide on behalf of the company. In particular, evidence of the applicant acting partially towards her daughter by not initiating litigation against her stood against the applicant. It is submitted that the Court of Appeal came to the right conclusion as there was strong evidence that the applicant was not considering the position of the company but her own personal circumstances.

However, if the good faith test were to be satisfied only in cases where there was no ulterior motive, then derivative claims would be few and far between.64

This was acknowledged by Sir Mervyn Davies (sitting as a High Court Judge) when he stated,‘[n]o doubt there is ill-feeling between [the parties] but that in itself cannot debar [the applicant], were it to do so most derivative [claims] would be frustrated.’65

Perhaps good faith is about the honest belief of the applicant and whether the applicant has a collateral purpose that amounts to an abuse of process. The Australian case of Swansson v R A Pratt Properties Pty Ltd,66 where the court fa-voured this test could be used persuasively. Ulterior motive or collateral purpose clearly has a role to play in the good faith test under Section 241(2)(a).

61 UK Law Reform Commission, Shareholder remedies report, 95, para 6.75.62 Poole and Roberts, ‘Shareholder remedies’, 107.63 [1995] BCC 362.64 Poole and Roberts, ‘Shareholder remedies’, 107.65 Barrett v Duckett [1993] BCC 778, 786.66 [2002] NSWSC 583.



Lewison J, in the Lesini case, stated that an applicant would not be disquali-fied from bringing a derivative claim even if there are other benefits which the applicant would derive from the claim.67 In the case, the dominant purpose of the claim was to benefit the company. Therefore, the existence of a collateral purpose, namely a benefit of an indemnity from a third party, did not establish lack of good faith. This benefit was not enough to convince Lewison J that the applicant lacked good faith.

Distinguishing between a dominant purpose and collateral purpose can be a difficult exercise.68 This is reminiscent of the problematic principal or larger purpose exceptions in the law of financial assistance. Significant interplays be-tween the different purposes often make it difficult to distinguish between the primary and secondary purpose. This is because disentangling the numerous strands can be evidentially difficult and even more so in allocating a relative weighting to each strand. The applicant’s good faith test under Section 241(2)(a) is best encapsulated by the statement of Lewison J, that ‘if the [applicant] brings a derivative claim for the benefit of the company, he will not be disqualified from doing so if there are other benefits which he will derive from the claim.’69 The main prevailing advantage of pursuing a derivative claim has to flow to the company, while any other minor associated benefits that an applicant derives will be permissible.

Costs

The Act does not state who will incur the costs of a derivative claim.70 Without prospective certainty as to whether the courts will order the company to pay the members’ costs of litigation, members may be deterred from pursu-ing derivative claims.71 Furthermore, members may be at risk of paying litigation expenses as well as the legal expenses of the defendant if the claim is unsuccess-ful. The use of derivative claims will rarely be rational in light of this deadly mix of financial disincentives.72 Reducing costs is therefore crucial in overhauling the derivative claim and increasing the paucity of litigation. An alternative may also

67 [2009]EWHC 2526 (Ch).68 Poole and Roberts, ‘Shareholder remedies’, 107.69 [2009] EWHC 2526 (Ch).70 See generally Part XI, Companies Act (Act No. 17 of 2015).71 Poole and Roberts, ‘Shareholder remedies’, 107.72 Reisberg A, Derivative actions and corporate governance: Theory and operation, Oxford University Press,

Oxford, 2007, 222.



be where other concerned bodies take up the costs of the derivative claim rather than leave the aggrieved member of a company to bear the costs.73

Conclusion

While the statutory derivative action addresses some of the criticisms lev-elled against the rule in Foss v Harbottle and its exceptions, it is by and large a re-statement of the common law principles that emanated from the landmark case. As evidenced by both the discussion of the cases preceding the enactment of the Act and the statutory derivative action under the Act, the common strand in both regimes is the preeminent position of judicial discretion as far the remedy of derivative action is concerned. While the common law principles arguably gave courts wider latitude in which to exercise their judicial discretion, the statutory derivative claim narrows the scope of the courts’ discretion through providing confines in which such discretion is to be exercised. Therefore, one can only hope that the restrictive standing requirements in Foss v Harbottle will be replaced in effect by judicial control over the streamlined list of factors under Part XI of the Act. The article concludes that the statutory derivative claims/ actions are not necessarily more practicable, efficient and effective than the common law principles on derivative action. At best, the statutory derivative claim only gives greater power to the courts over derivative claims. As currently framed, statu-tory derivative action may not have the requisite potency to enable shareholders redress loss to a company due to failure by its directors to discharge their duties.

73 For instance, Reisberg notes that in Israel, the Israeli Securities Exchange announced that it would shoulder the financial burden of derivative claims in cases it believed were of general importance to the public. See Reisberg A, ‘Shadows of the past and back to the future: Part 11 of the UK Compa-nies Act 2006 in action’ 6 European Company and Financial Law Review, 2-3 (2009), 219, 239.


Implementation of political participation standards for persons with intellectual disabilities in KenyaLucianna Thuo*

Abstract

This paper reviews international standards on political participation by persons

with intellectual disabilities and how they are implemented in Kenya. On one

hand, Article 25 of the International Covenant on Civil and Political Rights

(ICCPR) allows limitation of rights based on ‘reasonable and objective’ criteria.

Whereas it is considered unreasonable to restrict participation rights of persons

with physical disabilities, General Comment 25 to the ICCPR permits restric-

tions based on ‘established mental incapacity’. On the other hand, the Conven-

tion on the Rights of Persons with Disabilities (CRPD) does not foresee any

limitation of participation rights; rather it recognises the freedom of persons with

disabilities to be involved in decision-making, including the right to vote and hold

public office. Kenya is a party to both instruments, having acceded to the ICCPR

in 1972 and ratified the CRPD in 2008.

Kenya’s law does not deprive persons with intellectual disabilities of legal ca-

pacity. In fact, Article 54(2) of the Constitution of Kenya (2010 Constitution)

seeks to increase participation of persons with disabilities in decision-making and

public life by providing, inter alia, for the progressive inclusion of persons with

disabilities in at least five percent of all elective and nominated positions. Whereas

Kenya’s law allows for limited guardianship, it is the informal guardianship cre-

ated by the family, on whom persons with intellectual disabilities are depend-

ent for support, which poses the greatest barrier to the exercise of participation

* TheauthorholdsanLLMinHumanRightsandDemocratisationinAfricafromtheCentreforHumanRights,UniversityofPretoria.SheisalawlectureratKabarakUniversityLawSchoolin Kenya and consultant and visiting lecturer at the Faculty of Law, the University of The [email protected].

Lucianna Thuo


rights. This informal guardianship, combined with negative societal attitudes and

ignorance at all levels including the Judiciary, the electoral management body

(the Independent Electoral and Boundaries Commission (IEBC)) and even the

wider disability movement, makes political participation rights for persons with

intellectual disabilities illusory. If the situation of persons with intellectual dis-

abilities is not addressed, only persons with physical and sensory disabilities will

be able to take up the affirmative action measure created by Article 54(2) of the

2010 Constitution.

Introduction

Political participation is central to social inclusion. In fact, voting is seen as the ultimate act of citizenship.1 However, persons with disabilities have been ex-cluded from many facets of community living, including political participation.2 This exclusion is particularly severe for persons with intellectual disabilities who have been variously referred to as ‘idiots’, ‘morons’, ‘feebleminded’, ‘defectives’, ‘changelings’, ‘mentally retarded’ and ‘learning disabled’.3

‘Intellectual disability’, being a socially constructed concept, has no agreed definition; its meaning is therefore contextual to a society and its medical profes-sion.4 The definition adopted for this article provides:

[Intellectual disability] is characterized by significant limitations both in intellectual function-ing and adaptive behavior as expressed in conceptual, social and practical skills. Conditions associated with intellectual disability include autism, cerebral palsy and Down syndrome. A person with intellectual disability has lifelong support needs; they must be individualized which will lead to improved personal outcomes that may include more independence and enhanced opportunities.5

1 Schriner K and Ochs L, ‘“No right is more precious”: Voting rights and people with intellectual and developmental disabilities’ 11 Policy and Research Brief, 1 (2000), 5.

2 Lord JE, Stein MA and Fiala-Butora J, ‘Facilitating an equal right to vote for persons with disabilities’ 6 Journal of Human Rights Practice, 1 (2014), 115.

3 Owen F, Griffiths D, Tarulli D and Murphy J, ‘Historical and theoretical foundations of the rights of persons with intellectual disabilities: Setting the stage’ in Owen F and Griffiths D (eds), Challenges to the human rights of persons with intellectual disabilities, Jessica Kingsley Publishers, London, 2009, 23.

4 Dimopoulos A, Issues in human rights protection of intellectually disabled persons, Ashgate Publishing, Farn-ham, 2010, 9.

5 Kenya National Commission on Human Rights and Open Society Initiative for Eastern Africa, How to implement Article 12 of Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya: A briefing paper, 2013, 4.

99

Political participation for persons with intellectual disabilities in Kenya


Owing to their low intelligence quotient (IQ) and limited adaptive skills, persons with intellectual disabilities are more vulnerable than other persons with disabilities.6 Laws restricting legal capacity and negative stereotypes exclude per-sons with intellectual disabilities from political participation.7

Despite this blanket exclusion, persons with intellectual disabilities are not homogenous.8 They have varying capacities and support needs. Persons with intellectual disabilities with mild impairments can live independently with addi-tional education; those with more severe disability require both educational and social support to integrate fully into society.9 However, it is claimed that some persons with intellectual disabilities cannot, even with the most extensive sup-port, take part in public affairs.10 Though intellectual disability is distinct from mental disability, the two are often conflated.11 Mental disability is a ‘disorder that affects feelings and behaviour’.12 Therefore, while nearly all mental illnesses can be managed or cured, intellectual disability is a life-long condition. Persons with intellectual disabilities hence include those who have difficulties in their intellectual functioning, such as persons with Down’s syndrome; on the other hand, persons with psychosocial disabilities include those who are diagnosed with and/or experiencing mental health problems like bipolar disorder, autism or schizophrenia.

Participation rights are not absolute. The International Covenant on Civil and Political Rights (ICCPR)13 allows limitations based on ‘reasonable and objec-tive’ criteria, including ‘established mental incapacity’.14 However, the Conven-tion on the Rights of Persons with Disabilities (CRPD) does not foresee any limitation of participation rights; rather it recognises the freedom of persons

6 Dimopoulos, Issues in human rights protection of intellectually disabled persons, 11-12.7 Fourth annual interactive debate of the Human Rights Council on the Rights of Persons with Dis-

abilities, Interactive debate on participation of persons with disabilities in political and public life, 1 March 2012 http://www.ohchr.org/EN/Issues/Disability/Pages/politicalpubliclife.aspx on 9 March 2016.8 Parmenter TR, ‘The present, past and future of the study of intellectual disability: Challenges in

developing countries’ 50 Salud Pública de México, 2 (2008), 124.9 Inclusion Europe and Mental Health Europe, Mental illness and intellectual disability, 1 January 2007 http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1277&context=gladnetcollect

on 9 March 2016.10 Fiala-Butora J, Stein MA and Lord JE, ‘The democratic life of the union: Toward equal voting par-

ticipation for Europeans with disabilities’ 55 Harvard International Law Journal, 1 (2014), 89.11 Chainoglou K ‘The framework for protecting the rights of persons with mental disabilities in Eu-

rope’ 1 Cyprus Human Rights Law Review, 2 (2012), 158. 12 Inclusion Europe and Mental Health Europe, Mental illness and intellectual disability.13 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.14 CCPR General Comment No. 25, The right to participate in public affairs, voting rights and the right of equal access

to public service (Art. 25), 12 July 1996, para 4.

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with disabilities to be involved in decision-making,15 including voting and holding public office.16 Kenya acceded to the ICCPR in 1972 and ratified the CRPD in 2008. This article focuses on persons with intellectual disabilities because while persons with disabilities face marginalisation, persons with intellectual disabilities are often victims of ‘double invisibility’:

Some groups with disabilities are more invisible than others…People with intellectual dis-abilities find it difficult in many societies to make progress - or at least as much progress as other groups with disabilities.17

The Constitution of Kenya (2010 Constitution) provides for the progres-sive inclusion of while persons with disabilities in at least five percent of all elective and nominated positions.18 However, because accommodations for per-sons with intellectual disabilities are ‘often less understood and do not receive adequate attention’,19 persons with intellectual disabilities may be excluded from this affirmative action measure.

Universal and regional standards on political participation

Despite the right to political participation being widely acknowledged to-day, individual political rights were unknown in international law prior to World War II.20 The right to vote is arguably the most important participation right.21

Participation rights in the universal system

Universal Declaration of Human Rights

Coming immediately after WWII, the Universal Declaration of Human Rights (UDHR) included participation rights in its rich catalogue of human

15 Para n and o, Preamble, Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3.

16 Article 29(a), Convention on the Rights of Persons with Disabilities.17 Quinn G, Degener T, Bruce A, Burke C, Castellino J, Kenna P, Kilkelly U and Quinlivan S, Human

rights and disability: The current and future potential of United Nations human rights instruments in the context of disability, United Nations, New York, 2002, 23.

18 Article 54(2), Constitution of Kenya (2010).19 Caldwell J, Hauss S and Stark B, ‘Participation of individuals with developmental disabilities and

families on advisory boards and committees’ 20 Journal of Disability Policy Studies, 2(2009), 103.20 Fox GH, ‘The right to political participation in international law’ in Fox GH and Roth BR (eds),

Democratic governance and international law, Cambridge University Press, Cambridge, 2000, 53.21 Office of the United Nations High Commissioner for Human Rights, Thematic study by the Office of the

United Nations High Commissioner for Human Rights on participation in political and public life by persons with disabilities, A/HRC/19/36, 21 December 2011, para 7.

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rights.22 Since only male adults were allowed to vote when it was adopted,23 it may not be the most progressive international instrument on participation rights.

International Covenant on Civil and Political Rights (ICCPR)

The ICCPR is the most widely ratified international instrument on political participation.24 It entitles every citizen, without unnecessary restrictions, to par-ticipate in public affairs, vote and be elected and have equal access to the public service.25 However, since participation rights would be illusory without the rights to information, expression, association and assembly, these are also considered political rights.26

The right to take part in the conduct of public affairs

The Human Rights Committee has defined participation in public affairs as a ‘broad concept’ covering public administration and formulation of policy at all levels.27 While voting is important to the conduct of public affairs, elections only take place periodically. Alternative means of influencing public policy, including belonging to the executive or legislature,28 are therefore necessary.29

The right to vote and be elected

The right to vote is often referred to as ‘active suffrage’ while the right to be elected is referred to as ‘passive suffrage’.30 Though the ICCPR31 allows restric-tions to this right, General Comment 25 clarifies that only minimum reasonable and objective restrictions, such as voting age, are permitted.32 Restrictions based

22 Article 21, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).23 Mackie TF and Rose R, ‘The international almanac of electoral history’ 3 Congressional Quarterly

(1991), 39, quoted in Fox, ‘The right to political participation in international law’, 52.24 As of 9 March 2016, the International Covenant on Civil and Political Rights had 168 state parties https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtsdg_no=IV-4&chapter+

4&lang=en on 9 March 2016.25 Article 25, International Covenant on Civil and Political Rights.26 Office of the United Nations High Commissioner for Human Rights, Thematic study by the Office of the

United Nations High Commissioner for Human Rights on participation in political and public life by persons with disabilities, para 6.

27 CCPR General Comment 25, para 5.28 CCPR General Comment 25, para 6.29 Fox, ‘The right to political participation in international law’, 55.30 ACE Electoral Knowledge Network http://aceproject.org/main/english/lf/lfd02.htm on 9 March

2016.31 Article 25, International Covenant on Civil and Political Rights.32 CCPR General Comment 25, paras 12 and 14.

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on literacy, property, physical disability or party membership are considered un-reasonable.33 States are also obligated to take positive measures, such as the ef-fective registration of voters, and put in place mechanisms for persons with dis-abilities to vote.34

Voting restrictions in national laws take three forms.35 Restrictions based on community living require official integration into society, either through citizen-ship or through permanent residency, before one can be allowed to determine the society’s future.36 Competence-based restrictions often relate to voting age and mental capacity. Most states presume that with age comes the requisite ca-pacity for reasonable political reasoning, and anyone below the age of majority is prone to manipulation.37 Autonomy-based restrictions are sometimes hardly distinguishable from competence-based ones.38 Exclusions based on mental ca-pacity, which presume that persons with mental illnesses or intellectual disability are incapable of reasonable choices, fall into this category.39

Because effective active and passive suffrage requires free choice of candi-dates, states should refrain from imposing unreasonable restrictions on candida-ture; exclusion of any group from elective office must be justified.40 States are also obligated to monitor the internal management of political parties to ensure that they do not violate participation rights.41

The right to access the public service

The ICCPR makes access to the public service available only ‘on general terms of equality’, allowing states to formulate restrictions based on education, integrity, minimum age or other special requirements.42 However, to eliminate

33 CCPR General Comment 25, para 10.34 Lindblad J and Suksi M, On the evolution of international election norms: Global and European perspectives,

Institute for Human Rights, Turku, 2005, 23.35 Blais A, Massicotte L and Yoshinaka A, ‘Deciding who has the right to vote: A comparative analysis

of election laws’ 20 Electoral Studies, 1 (2001), 52.36 Blais, Massicotte and Yoshinaka, ‘Deciding who has the right to vote’, 54.37 Blais, Massicotte and Yoshinaka, ‘Deciding who has the right to vote’, 43.38 Katz RS, Democracy and elections, Oxford University Press, New York, 1997, quoted in Blais, Massi-

cotte and Yoshinaka, ‘Deciding who has the right to vote’, 42.39 Blais, Massicotte and Yoshinaka, ‘Deciding who has the right to vote’, 51. The study showed that

only four countries, of the 63 surveyed, did not have any restrictions on the right to vote based on mental capacity. These were Canada, Ireland, Italy and Sweden.

40 CCPR General Comment 25, para 15.41 CCPR General Comment 25, para 16.42 Office of the United Nations High Commissioner for Human Rights, Thematic study by the Office of the


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discrimination in accessing public service, General Comment 25 proposes af-firmative action to ensure equal access for all citizens.43

Participation rights in regional systems

The African human rights system

Since Article 13 of the African Charter on Human and Peoples’ Rights (ACHPR)44 neither mentions the right to vote, nor mirrors the non-discrim-ination prescription of the ICCPR, its utility has been called into question.45 However, the African Commission on Human and Peoples’ Rights (the African Commission) draws inspiration from regional and international principles, in ac-cordance with Articles 60 and 61, when interpreting discrimination under the Charter.46 In MIDH v Côte d’Ivoire, the Commission stated:

The right to participate in government or in the political process of one’s country, including the right to vote and stand for election, is a fundamental civil liberty and human right, and should be enjoyed by citizens without discrimination.47

The ACHPR entitles citizens to participate freely in government ‘in ac-cordance with the provisions of the law’.48 This seems to imply that national law will determine the parameters of this right; a lower standard if national law is inconsistent with international standards. However, the African Commission has repeatedly asserted that giving national law primacy over international law would render futile the entrenchment of rights and freedoms in the Charter.49 There-fore, although every state can regulate who can vote and stand for elections, it should not take away already accrued rights.50

The ACHPR is supplemented by the African Charter on Democracy, Elec-tions and Governance (ACDEG)51 which obliges states to promote the partici-pation of social groups with special needs, including persons with disabilities, in governance through, inter alia, civic education.52

43 CCPR General Comment 25, para 23.44 27 June 1981, 1520 UNTS 217.45 Fox, ‘The right to political participation in international law’, 66.46 Purohit & Moore v The Gambia, ACmHPR Comm. 241/2001, 16 Activity Report (2002-2003), Annex VII.47 ACmHPR Comm. 246/2002, 25 Activity Report (2008), para 76.48 Art 13(1), African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217.49 Media Rights Agenda v Nigeria, ACmHPR Comm. 105/93, 128/94, 130/94 and 152/96, 12 Activity

Report (1998) and Civil Liberties Organisation (in respect of Bar Association) v Nigeria, ACmHPR Comm. 140/94, 141/94 and 145/95, 13 Activity Report (1999).

50 MIDH v Côte d’Ivoire, ACmHPR, para 82.51 Adopted by the African Union on 30 January 2007.52 Article 31, African Charter on Democracy, Elections and Governance, 30 January 2007.

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The African Commission’s Working Group on the Rights of Older Persons and People with Disabilities is currently formulating the Draft Protocol on the Rights of Persons with Disabilities in Africa (Draft Protocol).53 If enacted into law, this instrument will require that civic education on democracy be made avail-able in accessible formats, that states ensure that persons with disabilities are members of political parties, voters and holders of political and public office and ensure accessibility and facilitate assisted voting.54 It further proposes representa-tion of persons with disabilities in at least five percent of the national and local legislatures,55 and the repeal or amendment laws that restrict political participa-tion for persons with disabilities.56

The Inter-American System

Article 23 of the American Convention on Human Rights (ACHR)57 is almost identical to the ICCPR equivalent. However, the ACHR is unique in two ways. First, it lists the permissible grounds for restricting the right58 unlike the ICCPR which sets out the prohibited grounds in restricting the right. Second, it establishes the right to political participation as non-derogable.59

Council of Europe

The First Protocol to the (European) Convention for the Protection of Human Rights and Fundamental Freedoms(ECHR)60 obliges state parties to hold free elections ‘at reasonable intervals by secret ballot’ ensuring the free ex-pression of the will of the people.61 Though it appears narrower than Article 25 of the ICCPR and frames participation as a state obligation rather than a right, the European Court of Human Rights (ECtHR) has interpreted the Convention as providing the same guarantees as the ICCPR.62

53 Published for comment in March 2014 and again in 2016. See, http://www.achpr.org/news/2015/12/d203 on 26 January 2016.

54 Articles 16(a)-(c), Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa, 25 February 2016.

55 Akin to Article 54(2), Constitution of Kenya (2010).56 Article 8(d), Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons With

Disabilities in Africa.57 21 November 1969, 1144 UNTS 123.58 Article 23(2), American Convention of Human Rights, 21 November 1969, 1144 UNTS 123.59 Article 27(2), American Convention of Human Rights.60 20 March 1952, 213 UNTS 262.61 Article 3, First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20

March 1952, 213 UNTS 262.62 United Communist Party of Turkey & Others v Turkey, ECtHR Judgement of 25 May 1998, 121.

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A history of exclusion from political life

Despite express participation provisions in international and regional in-struments, women, racial minorities, migrants and persons with disabilities were historically excluded from political life in many countries, based on false assump-tions as to their reduced capacity.63 Thematic human rights treaties, namely, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),64 the International Convention on the Elimination of all Forms of Racial Discrimination (CERD)65 and the International Convention on the Pro-tection of the Rights of All Migrant Workers and Members of their Families,66 therefore included participation rights.

Towards gradual extension of participation rights to persons with disabilities

Despite the phasing out of exclusion for other groups in most countries, persons with disabilities continued to be marginalised,67 in part due to the lack of an instrument to articulate their rights.68 Though provided for in the ACH-PR, they were lumped together with the elderly as a group in need of pro-tection, rather than as active participants in the realisation of Charter rights.69 Recommendations for a disability convention began at the 1987 Global Meeting of Experts to Review the Implementation of the World Food Programme of Action Concerning Disabled Persons at the Mid-Point of the United Nations Decade of Disabled Persons.70 At the time, persons with disabilities were per-ceived to be sufficiently protected by existing instruments.71 Consequently, two drafts of the convention failed to secure sufficient consensus at the General As-sembly.72 It was not until the extent of their marginalisation was highlighted by

63 Fiala-Butora, Stein and Lord, ‘The democratic life of the union’, 81.64 Articles 7 and 8, Convention on the Elimination of All Forms of Discrimination against Women, 18 December

1979, 1249 UNTS 13. 65 Article 5, International Convention on the Elimination of all Forms of Racial Discrimination, 21 December

1965, 660 UNTS 195.66 Article 41, International Convention on the Protection of the Rights of All Migrant Workers and Members of

Their Families,18 December 1990, 220 UNTS 3.67 Dimopoulos, Issues in human rights protection of intellectually disabled persons, 79.68 Despouy L, Human rights and disabled persons, United Nations, New York, 1993, paras 280-281 quoted

in Quinn, et al, Human rights and disability, 303.69 Article 18(4), African Charter on Human and Peoples’ Rights.70 UNGA, The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Annex to

Resolution 48/96, 20 December 1993, para 7-8.71 UNGA, The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, para 9.72 UNGA, The Standard Rules on the Equalization of Opportunities for Persons with Disabilities, para 9.

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the Special Rapporteur of the Sub-Commission on Prevention of Discrimina-tion and Protection of Minorities under the Office of the High Commissioner for Human Rights73 that negotiations began in earnest. The CRPD, which is monitored by the Committee on the Rights of Persons with Disabilities (CRPD Committee) was adopted on 13 December 2006 and came into force on 3 May 2008. The CRPD does not permit limitation to persons with disabilities’ par-ticipation rights.

Relationship between the ICCPR and the CRPD and its impact on the participation rights of persons with intellectual disabilities

The CRPD on political participation

It is said that the CRPD does not create new rights; rather it sets out con-crete measures by which persons with disabilities can access, on equal terms, already existing rights.74 Since formal recognition of participation rights would have little effect if persons with disabilities are not included the community, par-ticipation provisions should be read together with all the other CRPD provisions.

The principles underlying CRPD implementation include ‘non-discrimina-tion’, ‘full and effective participation and inclusion in society’ and ‘equality of opportunity’.75 States are required to consult with persons with disabilities in the adoption of legislative and other measures and to take into account persons with disabilities’ needs in the development of policies and programmes.76 To ensure substantive equality, states are required to take positive measures such as reasonable accommodation and affirmative action.77Article 9(2)(d) is particularly significant for persons with intellectual disabilities because it requires that sig-nage and information in buildings and other public facilities be made available in ‘easy to read and understand forms’. The CRPD targets not only the law but also prejudicial societal attitudes which undermine equality. Article 12 is said to ‘emblematic of the paradigm shift’ brought about by the CRPD78 because it rec-

73 See Despouy, Human rights and disabled persons, para 280-281.74 De Beco G, ‘Article 33(2) of the UN Convention on the Rights of Persons with Disabilities: Anoth-

er role for national human rights institutions?’ 29 Netherlands Quarterly of Human Rights, 1(2011),87.75 Articles 3 (b) & (e), Convention on the Rights of Persons with Disabilities.76 Article 4, Convention on the Rights of Persons with Disabilities.77 Article 5, Convention on the Rights of Persons with Disabilities78 Quinn G, ‘Personhood and legal capacity: Perspectives on the paradigm shift of Article 12 CRPD’

The Harvard Law School Project on Disability Conference, Cambridge, 20 February 2010, 3.

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ognises the personhood of every person with a disability and requires states to provide support in exercising that capacity. Political participation by persons with intellectual disabilities is a sub-set of the wider debate on legal capacity.79 Moreo-ver, the CRPD’s affirmation that persons with disabilities have ‘choices equal to others’80 is significant to political participation because the right to take part in decision making validates one’s sense of belonging in a community. Fiala-Butora et al submit that it is not the mere act of voting that makes citizens equal; it is the genuine recognition of the right to vote.81

Possibly to counter the notion that persons with disabilities cannot intelli-gently and independently take part in decision-making,82 the CRPD demonstrates that the problem is rather lack of information in accessible formats, which it re-quires both state parties and private service providers to make available.83

The right to political participation

Article 29 of the CRPD recognises that persons with disabilities have both the right and the opportunity to vote and be elected on an equal basis with others.84 Beyond formal provision for these rights, positive measures, such as ensuring that voting procedures, materials and facilities are accessible,85 are also necessary.

Whereas states restrict some participation rights for persons with intellec-tual disabilities, Article 29 leaves no doubt that all participation rights, including the right to hold office, are made available to all persons with disabilities without distinction.86 Since full legal capacity is a pre-requisite for participation, the next section briefly discusses legal capacity.

The right to legal capacity

Legal capacity has been defined as the sword with which we forge our way in the world.87 The CRPD Committee perceives it as ‘a universal attribute inher-

79 Fiala-Butora, Stein and Lord, ‘The democratic life of the union’, 104.80 Article 19, Convention on the Rights of Persons with Disabilities.81 Fiala-Butora, Stein and Lord, ‘The democratic life of the union’, 100.82 Schriner and Ochs, ‘“No right is more precious”’, 3.83 Article 21, Convention on the Rights of Persons with Disabilities.84 Article 29(a), Convention on the Rights of Persons with Disabilities. Emphasis added.85 Article 29(a) (i), Convention on the Rights of Persons with Disabilities.86 In its Concluding Observations on Spain, the CRPD Committee recommended that necessary sup-

ports for holding office, including personal assistants, be availed to PWIDs; Committee on the Rights of Persons with Disabilities, Consideration of reports submitted by states parties under article 35 of the Convention: Concluding observations of the Committee on the rights of persons with disabilities: Spain, CRPD/C/ESP/CO/1, 19 October 2011, para 48.

87 Quinn, ‘Personhood and legal capacity’, 10.

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ent in all persons by virtue of their humanity’88 which includes the ‘capacity to be both a holder of rights and an actor under the law’.89

Prior to the CRPD, the right to recognition as a person before the law was elaborated in the UDHR,90 ICCPR,91 ACHPR92 and CEDAW.93 In fact, in the IC-CPR, it is a non-derogable right.94 Even though the CRPD contains no express non-derogation clause, it stipulates that human rights set out in other instru-ments shall not be restricted or derogated from even if they are recognised to a lesser extent in the CRPD.95

Article 12 is arguably one of the most important, though fiercely contested,96 provisions of the CRPD. It is therefore unsurprising that most of the reservations entered by state parties relate to Article 12.97 The obligation to support PWID to exercise their legal capacity indicates that all persons with disabilities have legal capacity;98 however, some need more intensive support to exercise that capacity.99

Deprivation of legal capacity affects the exercise of other rights, including participation.100 According to Dinerstein:

Plainly, if an individual with disability is deemed not to have legal capacity, the person’s abil-ity to make choices, achieve maximum independence and be fully included in the community is fatally compromised.101

The simplicity with which Article 12 provides for the right belies the com-plexity of its implementation. General Comment 1 of the CRPD Committee was adopted following a realisation that Article 12 was not well understood by

88 CRPD General Comment No. 1, Article 12: Equal recognition before the law, 11 April 2014, para 8.89 CRPD General Comment 1, para 11.90 Article 6, Universal Declaration of Human Rights.91 Article 16, International Covenant on Civil and Political Rights.92 Article 3, African Charter on Human and Peoples’ Rights.93 Article 2, Convention on the Elimination of All Forms of Discrimination against Women.94 Article 4(2), International Covenant on Civil and Political Rights.95 Article 4(4), Convention on the Rights of Persons with Disabilities.96 Dinerstein R, ‘Implementing legal capacity under Article 12 of the UN Convention on the Rights

of Persons with Disabilities: The difficult road from guardianship to supported decision making’ 19 Human Rights Brief, 2 (2012), 8.

97 There are currently 16 reservations and 20 interpretative declarations: 2 reservations and 10 declara-tions relate to Article 12, but none of these is by Kenya

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter= 4&lang=en on 6 July 2016.

98 Article 12(3), Convention on the Rights of Persons with Disabilities.99 Dinerstein, ‘Implementing legal capacity under Article 12 of the UN Convention on the Rights of

Persons with Disabilities’, 9.100 CRPD General Comment 1, para 8.101 Dinerstein, ‘Implementing legal capacity under Article 12 of the UN Convention on the Rights of

Persons with Disabilities’, 9.

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states.102 The next section briefly examines supported decision-making, one of the elements of Article 12.

Supported decision making

Guardianship laws fail to recognise that persons with intellectual disabili-ties, just like people without disabilities, ‘have varying capacity in different areas of their lives, and at different times’.103 Not all require support, and levels of support vary even among those who require it. In essence, Article 12 does not deny that persons with intellectual disabilities have ‘decision-making deficits’;104 it requires that states augment rather than take away persons with intellectual dis-abilities’ limited decision-making capacity by providing the necessary supports to foster autonomy.105

To eliminate the paternalistic attitudes that lead to substituted decision-mak-ing, any support measures should be accompanied by ‘appropriate and effective safeguards’.106 Effective supported decision making (SDM) mechanisms are cul-turally relevant and context-specific and are developed after a process of dialogue with persons with intellectual disabilities and the society.107 They also ought to have different levels of support,108 provide for mediation of conflict and termi-nation of the support relationship by the person with an intellectual disability.109

The Human Rights Committee’s General Comment 25 appears to en-dorse SDM by stipulating that ‘[a]ssistance provided to the disabled…must be independent’.110 Whereas all persons with disabilities are vulnerable, persons with intellectual disabilities are disproportionately affected by substituted decision-making and the deprivation of legal capacity.111

102 CRPD General Comment 1, para 3.103 Dinerstein, ‘Implementing legal capacity under Article 12 of the UN Convention on the Rights of

Persons with Disabilities’, 9.104 Kenya National Commission on Human Rights and The Open Society Initiative for Eastern Africa,

How to implement Article 12 of Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya, 23.

105 Dimopoulos, Issues in human rights protection of intellectually disabled persons, 31.106 Article 12(4), Convention on the Rights of Persons with Disabilities.107 Inclusion International, Designing supported decision-making systems: A guide for dialogue, February 2009 http://inclusion-international.org/wp-content/uploads/2014/07/Appendix-3-SDM-Dialogue-

Guide.pdf on 9 March 2016.108 Kenya National Commission on Human Rights and Open Society Initiative for Eastern Africa, How

to implement Article 12 of Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya, 139.

109 Inclusion International, Designing supported decision-making systems, 5.110 CCPR General Comment 25, para 20.111 CCPR General Comment 25, para 9.

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Features of participation rights of persons with intellectual disabilities vis-à-vis other persons with disabilities

Firstly, while the main impediment for other persons with disabilities is ac-cessibility of voting facilities and materials, the main participatory impediments for persons with intellectual disabilities are possible restrictions of legal capacity and autonomy.112 Persons with intellectual disabilities form a distinct minority because their psychological features, such as low IQ and limited adaptive skills,113 make them dependent on others in everyday life. This dependence makes them vulnerable to substituted decision making. Often, persons with intellectual dis-abilities are treated as mentally ill and either placed under guardianship or institu-tionalised. In Kenya, an informal family guardianship is created when the family makes decisions in the ‘best interests’ of persons with intellectual disabilities. Support-givers therefore turn into gatekeepers to the outside world.114 Partici-pation rights would be illusory without addressing both formal and informal restrictions of legal capacity.115

Second, it is yet to be fully accepted that persons with intellectual disabilities can exercise participation rights. According to Walmsley:

… [i]ncluding people with learning difficulties in academic and political debate will always be a struggle. Unlike other groups of disabled people with different impairments, it is un-clear whether they [persons with intellectual disability] will ever be able to engage on equal terms.116

On the one hand, persons with varying capacities of intellectual disabilities make it difficult to determine who can take part in political processes without applying an arbitrary standard.117 States, on the other hand, are entitled to protect the integrity of the electoral system from undue influence. This creates what has been referred to as ‘tension between concern for the protection, development and welfare of those with disabilities and a fear for the public good’.118

112 Dimopoulos, Issues in human rights protection of intellectually disabled persons, 25.113 Dimopoulos, Issues in human rights protection of intellectually disabled persons, 11.114 Karlan PS, ‘Framing the voting rights of cognitively impaired individuals’ 38 McGeorge Law Review

(2007), 923.115 CCPR General Comment 25, para 26.116 Walmsley J, ‘Including people with learning difficulties: Theory and practice’ in Barton L and Oliver

M (eds), Disability studies: Past, present and future, The Disability Press, Leeds, 2007, 62, 76. 117 Blais, Massicotte and Yoshinaka, ‘Deciding who has the right to vote’, 51.118 Owen, Griffiths, Tarulli and Murphy, ‘Historical and theoretical foundations of the rights of persons

with intellectual disabilities’, 24.

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Proposed arguments for excluding persons with intellectual disabilities

Capacity-based exclusions are probably among the longest running political exclusions. In the US, persons with intellectual disabilities were excluded along-side other groups. According to Porter:

[s]uch undesirable elements as paupers, idiots, the insane, etc., were practically excluded by the property test, and the need for specifically disqualifying them did not appear until the property test was gone.119

While electoral law did not specifically exclude these groups, social con-vention was such that they did not show up at the polls anyway.120 The politi-cal elite believed these groups were not ‘intellectually competent’ to participate in public affairs.121 However, persons with intellectual disabilities are not inher-ently incapable of political participation; rather, they lack the necessary support and information to participate.122 Some persons with intellectual disabilities have demonstrated this by making meaningful contribution to the drafting of human rights instruments.123 Some of the exclusionary approaches taken by states are considered below.

Status approach

This approach presumes that intellectual disability deprives individuals of legal capacity, necessitating the appointment of a representative to make deci-sions on their behalf.124 It presumes that one either has capacity entirely or not at all, without factoring in the natural supports present in society; for example, that everyone implicitly relies on others to assist them to make decisions.125 This ap-proach manifests itself in guardianship laws in many Western countries.126 While Kenya’s law allows for limited guardianship for persons who are mentally ill re-stricted to the management of financial affairs,127 the law does not automatically

119 Porter KH, A history of suffrage in the United States, The University of Chicago Press, Chicago, 1918, 20-21, quoted in Schriner K and Ochs L, ‘“No right is more precious”’, 2.

120 Schriner and Ochs, ‘“No right is more precious”’, 2.121 Schriner and Ochs, ‘“No right is more precious”’, 3.122 Schriner and Ochs, ‘“No right is more precious”’, 3.123 E.g. Robert Martin is not only a self-advocate but also took part in the drafting of the CRPD. New

Zealand has endorsed his candidature to the CRPD Committee in 2016. See http://inclusion-inter-national.org/robert-martin-run-crpd-committee-2016/ on 10 March 2016.

124 Quinn, ‘Personhood and legal capacity’, 14.125 Quinn, ‘Personhood and legal capacity’, 12-14.126 Mute L, ‘Shattering the glass ceiling: Ensuring the right to vote for persons with intellectual disabili-

ties in Kenya’ 2 Thought and Practice: A Journal of the Philosophical Association of Kenya, 1 (2010),7.127 Section 26, Mental Health Act (Chapter 248, Laws of Kenya).

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deprive persons with intellectual disabilities of legal capacity in the context of political participation.

Outcomes approach

This approach deprives persons with intellectual disabilities of legal capac-ity based on a pattern of ‘bad decisions’ or flawed decision-making process.128 It presumes that persons with intellectual disabilities are ‘incapable of engaging in the complex thinking necessary for making political judgments’.129 It is therefore necessary for others to act on their behalf, thereby protecting electoral legitimacy and caring for these ‘unfortunate’ members of society.130 Scholars have contested this approach, asserting that the state cannot determine what a valid political opinion is,131 and, in any case, even ‘non-disabled’ people choose improper lead-ers132 by basing voting decisions on irrelevant criteria such as a candidate’s height, whether or not they use a nickname or the format of the ballot.133

National practices excluding persons with intellectual disabilities from political participation

Exclusion occurs in three main ways. First, the exclusion could be an auto-matic consequence of a guardianship order, irrespective of the ability to vote134 or hold office. This exclusion is prevalent in many Eastern European countries such as Bulgaria, and was Hungary’s position before 2011.135 Second, exclusion could stem from individualised capacity assessment, like specific findings of in-capacity by a designated decision-making authority.136 The CRPD Committee has declared capacity assessments discriminatory. Exclusion is not absolute in some countries. In Finland and Norway, persons with intellectual disabilities have the right to vote,137 but persons under guardianship or suffering from a ‘weakened

128 Quinn, ‘Personhood and legal capacity’, 13.129 Schriner and Ochs, ‘“No right is more precious”’, 4.130 Schriner and Ochs, ‘“No right is more precious”’, 4.131 Arguments by interveners in Zsolt Bujdosó& Five others v Hungary, CRPD comm. 4/2011, 16 October

2013), para 5.7.132 Mute, ‘Shattering the glass ceiling’, 8.133 Karlan, ‘Framing the voting rights of cognitively impaired individuals’, 917.134 Fiala-Butora, Stein and Lord, ‘The democratic life of the union’, 75.135 Alajos Kiss v Hungary, ECtHR Judgment of 20 May 2010.136 E.g. Act CCI of 2011 on the Amendment of Certain Acts Related to the Fundamental Law (Hungary); Fiala-

Butora, Stein and Lord, ‘The democratic life of the union’, 78.137 Section 14, Constitution of Finland; Article 50, Constitution of Norway.

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mental state’ are ineligible to vie for parliamentary138 or municipal elections.139 In Quebec, persons with intellectual disabilities vote in some elections but not in others.140

These exclusions have been criticised for various reasons. First, no empiri-cal evidence has linked the participation of persons with intellectual disabilities to electoral fraud.141 Second, capacity assessments are discriminatory because only a segment of the population is subjected to testing.142 Moreover, because the people who carry out capacity assessments are often biased, exclusionary measures are disproportionate.143 Furthermore, any exclusion, whether absolute or based on capacity assessment, is contrary to Article 12 since it presumes a lack of legal capacity. In addition, capacity assessments cost money most states can ill-afford.144 Testing also violates the dignity of persons with intellectual disabili-ties by portraying them as incapable of equal participation in society.

Nussbaum has proposed proxy voting, where the ballot would be cast on behalf of a person with an intellectual disability.145 However, Fiala-Butora et al have argued that proxy voting violates the dignity of persons with intellectual dis-abilities by demonstrating to society that a person with an intellectual disability’s vote only counted because someone else cast it on their behalf.146 Proxy voting does not appear to find support in any international instrument. The only right exercisable through representatives is the right to take part in the conduct of public affairs.147 The Inter-American Commission on Human Rights has defined ‘genuine periodic’ elections as elections where the electorate has the opportunity to express its opinion by voting for a particular candidate or party.148 An elec-tion cannot be considered genuine if the will of a section of the electorate is

138 Section 27, Constitution of Finland; Article 61, Constitution of Norway.139 Section 3(3), Local Government Act (Act No. 365 of 1995, Finland); Section 3-3, Representation of the

People Act (Norway).140 In Québec, one who is under curatorship cannot vote in provincial, municipal or school elections

but they can vote in federal elections. http://www.curateur.gouv.qc.ca/cura/en/majeur/inaptitude/droits/avec/droit-vote.html on 2 Septem-

ber 2014.141 Fiala-Butora, Stein and Lord, ‘The democratic life of the union’, 86.142 Applebaum PS, ‘I vote, I count: Mental disability and the right to vote’ 51 Psychiatric Services, 7

(2000), 850; Zsolt Bujdosó & five others v Hungary, CRPD.143 Applebaum, ‘I vote, I count’, 850.144 Email from Lord J, Senior Vice President, Human Rights and Inclusive Development, Burton Blatt

Institute, Syracuse University, on 1 August 2014.145 Nussbaum M, ‘The capabilities of people with cognitive disabilities’ 40 Metaphilosophy, 3/4 (2009),

331.146 Fiala-Butora, Stein and Lord, ‘The democratic life of the union’, 101.147 Article 25(a), International Covenant on Civil and Political Rights.148 Mexico Elections Decisions, IACmHR Cases 9768, 9780, 9828, annual report, 1989-1990, 107.

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expressed by others, ostensibly on their behalf. The Human Rights Committee’s General Comment 25 also requires the electoral system to ‘guarantee and give effect to the free expression of the will of the electors’.149 Notably, Canada has rejected proxy voting. 150

Authoritative interpretation of political participation by persons with intellectual disabilities

The African Commission on Human and Peoples’ Rights

The African Commission appears to have been the first regional body to address capacity-based exclusions to voting, and the exclusion of persons of ‘unsound mind’ from voting. Purohit and Moore v The Gambia151 challenged The Gambia’s treatment of persons detained under the Lunatics Detention Act. The Act defined a ‘lunatic’ to include ‘an idiot or person of unsound mind’ but did not have safeguards for certification through independent oversight. Patients were also not allowed to vote. The Commission rejected The Gambia’s argu-ment that allowing mental health patients to vote would generate controversy because of their inability to make an informed choice. The Commission found that participation rights under the Charter152 could only be denied on the basis of legal incapacity, assessed using reasonable and objective criteria, and asserted that legal capacity was not synonymous with mental incapacity. Since the State had only relied on its perception of the patients’ ability to make informed choices, its exclusion was not justified.153

The European Court of Human Rights

In Mathieu-Mohin & Clerfayt v Belgium,154 ECtHR ruled that suffrage could be limited by proportionate laws that pursued a legitimate aim. In the Horvath and Kiss v Hungary,155 the Court was asked to determine whether voting exclusion following a guardianship order accorded with the ECHR. The ECtHR rejected Hungary’s argument that it had a wide margin of appreciation in electoral mat-ters due to the vulnerability of the affected group and found that the extent

149 CCPR General Comment 25, para 21.150 http://www.curateur.gouv.qc.ca/cura/en/majeur/inaptitude/droits/avec/droit-vote.html on 1

September 2014. 151 ACmHPR Comm. 241/2001 16 Activity Report (2002-2003).152 Article 13(1), African Charter on Human and Peoples’ Rights.153 ACmHPR Comm. 241/2001 16 Activity Report (2002-2003), paras 74-76.154 ECtHR Judgement of 2 March 1987.155 ECtHR Application No. 11146/11, para 18.

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of marginalisation meant that exclusion could only be justified by ‘very weighty reasons’.156 The exclusion was found to be disproportionate as it excluded a sig-nificant number of people.157 Therefore, an ‘automatic, blanket restriction’ based solely on guardianship, without ‘individualised judicial evaluation’, was not a le-gitimate restriction of voting rights.158

Whereas the Kiss case lifted blanket voting restrictions, it left unresolved whether individualised capacity assessments were compatible with human rights.159 Following the decision, Hungary introduced individualised capacity as-sessments.160

The CRPD Committee

The CRPD has endorsed a higher standard of inclusion for persons with intellectual disabilities. In its Concluding Observations on the state reports of Tunisia and Spain, the CRPD Committee urged both states to ensure that per-sons with intellectual disabilities have the right to vote and participate in public life,161 including providing persons with intellectual disabilities elected to office with personal assistants.162

Article 1 of the Optional Protocol to the CRPD allows the CRPD Com-mittee to consider communications from or on behalf of individuals. In the 2011 Bujdosó case,163 the applicants challenged a constitution-based exclusion of the right to vote for people under guardianship. Discontented with the reticence of the ECtHR to deal with finality on the question of capacity assessments in Kiss, the interveners asked the CRPD Committee to determine the compatibility of these assessments with Article 29 of the CRPD. The Committee disagreed with Hungary that the limitation of voting rights was proportionate and justifi-able, and concluded that capacity assessments disenfranchise otherwise capable individuals. Ruling on the compatibility of capacity assessments with Article 29 of the CRPD, it found that voting exclusions, ‘including a restriction pursu-

156 ECtHR Application No. 11146/11, para 42.157 The Court referred to its dicta in Hirst v UK application 74025/01, ECtHR Judgment of 6 October

2005, para 71, that disenfranchisement, being severe, required proportionality of sanction to the conduct of affected individual.

158 Hirst v UK application 74025/01, ECtHR Judgment of 6 October 2005, paras 43-44.159 Fiala-Butora, Stein and Lord, ‘The democratic life of the union’, 72.160 Fiala-Butora, Stein and Lord, ‘The democratic life of the union’, 78.161 Concluding observations of the Committee on the rights of persons with disabilities: Spain, paras

47-48; Tunisia, 13 May 2011, (CRPD/C/TUN/CO/1), para 35.162 Concluding observations of the Committee on the rights of persons with disabilities: Spain, para 48.163 Zsolt Bujdosó & five others v Hungary, CRPD.

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ant to an individualised assessment, constitutes discrimination on the basis of disability’.164

The Bujdosó decision conflicts with General Comment 25 of the Human Rights Committee,165 which allows exclusion based on mental incapacity. How-ever, since the ICCPR and General Comment 25 predate the CRPD, it is arguable that the CRPD standard is an overriding standard, thus binding state parties to both instruments.166 The CRPD is also one of the fastest and most widely ratified international human rights treaties.167

The Human Rights Committee has been urged to revise General Com-ment 25.168 In the meantime, the Human Rights Council appears to have en-dorsed the CRPD standard by calling on states to remove ‘any existing exclusion or restriction of political rights for persons with disabilities, including those per-sons with…intellectual disabilities’.169 The Human Rights Council appears to be signalling that when it comes to persons with disabilities, the CRPD standard is the lex specialis and the lex posterior.

Kenya’s compliance with universal and regional standards on political participation by persons with intellectual disabilities

In its Initial Report to the CRPD Committee in 2011, Kenya restated its commitment to shifting away from substituted to supported decision making.170 However, it is unclear how many persons with intellectual disabilities live in Ken-ya. Whereas the Kenya National Bureau of Statistics (KNBS) and the National Council for Persons with Disabilities (NCPWD) put the figure at 1.7 million in

164 Zsolt Bujdosó & five others v Hungary, CRPD, para 9.7.165 CCPR General Comment 25.166 Articles 18, 30 and 59, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; Of-

fice of the United Nations High Commissioner for Human Rights, Thematic study by the Office of the United Nations High Commissioner for Human Rights on participation in political and public life by persons with disabilities, para 28.

167 Lord, Stein and Fiala-Butora, ‘Facilitating an equal right to vote for persons with disabilities’, 120. As of March 2016, the CRPD had been ratified by 162 states

https://treaties.un.org/Pages/ViewDetails.aspx?arc=TREATY&mtdsg_no=IV-15&chapter= 4&lang=en on 10 March 2016.

168 Fourth annual interactive debate of the Human Rights Council on the Rights of Persons with Dis-abilities, Interactive debate on participation of persons with disabilities in political and public life.

169 United Nations Human Rights Council, Rights of persons with disabilities: Participation in political and public life, A/HRC/19/L.9/Rev 1, 20 March 2012, para 7.

170 UN Doc CRPD/C/KEN/1, 31 August 2011, received by CRPD Committee 3 April 2012, para 121.

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2007,171 and at 1.3 million in 2009, other estimates have quoted 3.6 million.172 Further, since intellectual disability is sometimes conflated with mental illness, persons with intellectual disabilities may be formally deprived of legal capacity for being mentally ill.173 Research indicates, however, that very few persons with intellectual disabilities are formally placed under guardianship.174 Lack of statis-tics makes it difficult for the State and the NCPWD to implement the CRPD,175 including providing support for the exercise of legal capacity.

Legal capacity and participation rights

To fully understand participation rights of persons with intellectual dis-abilities in Kenya, this section reviews electoral law alongside provisions on legal capacity and non-discrimination.176

The 2010 Constitution

The 2010 Constitution defines disability as ‘any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long-term ef-fect on an individual’s ability to carry out day-to-day activities’.177 Disability in Kenya can therefore be either really broad or narrow depending on society’s perceptions.178

The 2010 Constitution also sets out national values and principles to guide constitutional interpretation, policy and law making, including ‘human dignity, equity, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised,’179 which bind everyone, not just the State. It is difficult how-ever to reconcile the value of non-discrimination set out in Article 10, with the exclusion of persons of ‘unsound mind’ from voting in Article 83 of the 2010 Constitution as will be discussed below. One author refers to this disjuncture

171 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 2014, 17.172 Equal Rights Trust, In the spirit of Harambee: Addressing discrimination and inequality in Kenya, 2012, 140. 173 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 18.174 Kenya National Commission on Human Rights and The Open Society Initiative for Eastern Africa,

How to implement Article 12 of Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya, 79.

175 Article 31, Convention on the Rights of Persons with Disabilities, obliges states to collect disaggregated data about persons with disabilities to guide policies to give effect to the Convention on the Rights of Persons with Disabilities.

176 Lord, Stein and Fiala-Butora, ‘Facilitating an equal right to vote for persons with disabilities’, 120.177 Article 260, Constitution of Kenya (2010).178 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 16.179 Article 10(2) (b), Constitution of Kenya (2010).

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as an ‘internal dissonance’180 and another as ‘systemic electoral inconsistency’.181 The Bill of Rights not only protects equality before the law but also lists disability as a protected ground.182 The 2010 Constitution also acknowledges every per-son’s inherent dignity.183 Moreover, State organs and public officers are obliged to address the needs of vulnerable groups, including persons with disabilities, and enact legislation to give effect to Kenya’s international human rights ob-ligations.184 In addition, the general principles of the electoral system include ‘fair representation’ of persons with disabilities, and Article 97(1) (c) requires the National Assembly to comprise at least 12 nominated members represent-ing various interest groups, including persons with disabilities. The introduction of the devolved system of government, which shifts decision-making from the national to the county levels, further allows greater public participation.185 On paper at least, the 2010 Constitution clearly attempts to remedy past exclusion of persons with disabilities.

However, in order to be eligible to vote or hold office, the 2010 Constitu-tion and Elections Act 2011186 require that one be of ‘sound mind’.187 Moreover, Kenya’s Initial Report to the CRPD acknowledged that many decisions were still being made on behalf of persons with disabilities without consulting them.188

Persons with Disabilities Act 2003

The Persons with Disabilities Act (PWDA) predates the 2010 Constitution and the CRPD and is yet to be amended to accord with the two instruments. Previous attempts at amendment failed because of limited representation of per-sons with disabilities in decision-making organs and the media’s reluctance to raise awareness on disability rights.189

180 Combrinck H, ‘Everybody counts: The right to vote of persons with psychosocial disabilities in South Africa’ 2 Africa Disability Rights Yearbook (2014), 78.

181 JS Nelson, ‘Fair measure of the right to vote: A comparative perspective of voting rights enforce-ment in a mature democracy’ 18 Cardozo Journal of International & Comparative Law (2010), 429, cited in Combrinck, ‘Everybody counts’, 78.

182 Article 27(4) and (5), Constitution of Kenya (2010).183 Article 28, Constitution of Kenya (2010).184 Article 21(3) and (4), Constitution of Kenya (2010).185 Katsui H, Ranta EM, Yeshanew SA, Musila GM, Mustaniemi-Laakso M and Sarelin A, Reducing

inequalities: A human rights-based approach in Finland’s development co-operation with special focus on gender and disability, A case study on Ethiopia and Kenya, Institute for Human Rights, Turku, 2014, 70.

186 Act No. 24 of 2011.187 Articles 83 (1)(b), 99(2)(e) and 193(2)(d), Constitution of Kenya (2010); Sections 25(2)(d) & 24(2)(e),

Elections Act (Act No. 24 of 2011).188 UN Doc CRPD/C/KEN/1, 31 August 2011, received by CRPD Committee 3 April 2012, para. 121.189 Njogu K, ‘Media and disability in Kenya’ 24 Disability Studies Quarterly, 4 (2009).

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The PWDA defines disability as a ‘physical, sensory, mental or other im-pairment, including any visual, hearing, learning of physical incapability, which impacts adversely on social, economic or environmental participation’.190 Failing to mention impact on political participation brings the PWDA at variance with the CRPD which sees disability as a long-term impairment that hinders ‘full and effective participation in society’.191

However, the PWDA recognises the right of every person with a disability to vote and to the support of a personal assistant who is sworn to secrecy.192 Violation of secrecy by the assistant is an offence.193 The Persons with Disabili-ties (Amendment) Bill 2014 had proposed to require both national and county governments to reserve five percent of all State and public service positions for persons with disabilities.194 However, this provision is conspicuously absent from the Persons with Disabilities Bill 2015.

Elections Act 2011

The Elections Act195 was enacted to provide for elections under the de-volved system of government, and its provisions on voting and eligibility for office mirror the 2010 Constitution as will be seen below.

Political Parties Act 2011

The Political Parties Act provides for a Political Parties Fund, at least 30 percent of which is to be dedicated by parties to promoting representation of the marginalised, including persons with disabilities, in Parliament and in county assemblies.196

Elections (General) Regulations 2012

The 2012 Elections (General) Regulations promote the candidature of per-sons with disabilities’ by only requiring them to pay half the nomination fees stipulated for any elective position.197 Regulation 72 also provides for assisted

190 Section 2, Persons with Disabilities Act (Act No. 14 of 2003).191 Article 1, Convention on the Rights of Persons with Disabilities.192 Section 29, Persons with Disabilities Act (Act No. 14 of 2003).193 Sections 29(4) & 48, Persons with Disabilities Act (Act No. 14 of 2003).194 Clause 4(1), Persons with Disabilities (Amendment) Bill (Senate Bill No. 24 of 2014).195 Act No. 24 of 2011.196 Act No. 11 of 2011.197 Regulations 19(a), 25(a), 29(a), 33(a) & 37(a), Elections (General) Regulations (Legal Notice 128 of 2012).

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voting. A person with a disability can apply to the presiding officer to be assisted by a person of their choice (with the exception of a candidate or agent).The as-sistant must be an adult, but does not have to be qualified to vote. The assistant is required to fill a declaration of secrecy, a violation of which is an electoral offence. Regulation 90 also requires the Independent Electoral and Boundaries Commission (IEBC) to take any special measures necessary to facilitate voting for persons unable to access polling stations for any reason, including disability, in case of a fresh presidential election.

These provisions tend towards the provision of reasonable accommo-dation for voters with disabilities. Whereas none of these provisions expressly refer to persons with intellectual disabilities, it is arguable that the law could not have intended to only enfranchise people with physical and sensory disabilities, since the 2010 Constitution prohibits discrimination on the basis of disability.198 The requirement of soundness of mind, however, stands in stark contrast to these provisions, and indicates the need for a change in the law to preclude con-tinued marginalisation of persons with intellectual disabilities.

Judicial interpretation of participation rights

There is no case law from Kenyan courts on legal capacity in the context of political participation under the 2010 Constitution. In the 2010 case of Priscilla Nyokabi Kanyua v Attorney-General & Another,199 the Court was asked to rule on the legality of prisoners’ exclusion from the referendum on the Draft Constitution in 2010. The Court found that there was no ‘rational governmental objective or purpose’ that justified excluding adult inmates from voting. Nevertheless, per-sons of ‘unsound mind’ were unable to ‘take part in any function that requires exercise of choice due to their status’ since they were not ‘in control of their faculties’.200 Therefore, while prisoners could vote, inmates of ‘unsound mind’ could not. Going by the decisions in Bujdosó and Purohit, such blanket exclusion would not withstand the CRPD Committee and African Commission’s scrutiny today. Though this decision does not expressly disenfranchise persons with intel-lectual disabilities, lack of a definition of ‘soundness of mind’ and a history of conflation of intellectual disability with mental illness leaves room for prejudicial interpretation against persons with intellectual disabilities.

198 Mute, ‘Shattering the glass ceiling’, 10.199 [2010] eKLR.200 [2010] eKLR, 22.

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The concept of ‘unsound mind’

Though non-discrimination is a constitutional value and Article 38 of the 2010 Constitution grants participation rights to all Kenyans, it requires one to be of ‘sound mind’ to exercise participation rights.201 While the term is used in various legislation and there is a defined procedure for assessing soundness of mind in criminal trials202 and under the Mental Health Act,203 this term is neither defined in the 2010 Constitution nor in legislation. Further, the Elec-tions Act does not contain an adjudication procedure for challenging exclusion from registration on this basis. Moreover, the term is considered ‘derogatory and discriminatory’.204 Article 83(1) (b) does not expressly serve to exclude persons with intellectual disabilities from political participation. However, in the absence of assessment criteria, mental capacity adjudication processes under the Mental Health Act, the Penal Code and the Criminal Procedure Code place complete reliance on medical reports, with little involvement of the person being adjudged to gauge their ‘soundness of mind’ or lack thereof.205 Moreover, contrary to the African Commission’s finding in the Purohit case,206 mental capacity is considered synonymous with legal capacity.207

Lack of a definition and the frequent conflation of mental and intellectual disabilities therefore make this provision amenable to be used to exclude persons with intellectual disabilities.208 The potential exclusionary effect of this provi-sion was confirmed prior to the 2013 elections. Efforts to register persons with intellectual disabilities were countered by arguments that they were of ‘unsound mind’.209

201 Article 83(1)(b), Constitution of Kenya (2010).202 See section 11, Penal Code (Chapter 63, Laws of Kenya) and sections 162-163, Criminal Procedure Code

(Chapter 75, Laws of Kenya).203 Section 26, Mental Health Act (Chapter 248, Laws of Kenya)204 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 38.205 Kenya National Commission on Human Rights and Open Society Initiative for Eastern Africa, How to

implement Article 12 of Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya, 50.206 Purohit & Moore v The Gambia, ACmHPR, para 75.207 Kenya National Commission on Human Rights and Open Society Initiative for Eastern Africa, How to

implement Article 12 of Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya, 75.208 Mute, ‘Shattering the glass ceiling’, 4. According to Ms Wangare, some people with autism are de-

tained at Mathare National Psychiatric Hospital in Nairobi for being ‘mentally ill’; Interview with Wangare F, Executive Officer, Kenya Association for the Intellectually Handicapped (KAIH), on 19 September 2014.

209 Interview with Wangare F on 19 September 2014.

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Societal attitudes and other barriers to political participation of persons with intellectual disabilities

While Kenya’s law does not expressly deprive persons with intellectual dis-abilities of legal capacity, an informal family guardianship, coupled with preju-dicial societal attitudes, pose a huge barrier to political participation for persons with intellectual disabilities in Kenya.

The family set-up

The family is central to the exercise of legal capacity in Kenya.210 While some persons with intellectual disabilities receive support, few can attest to a positive family life.211 Family members usually assume the supportive role owing to lack of formal support structures like social welfare.212 They view persons with intellectual disabilities therefore as a burden or curse213 and lock them away, despite concealment of persons with disabilities being an offence under the PW-DA.214 Thereafter, they make decisions on their behalf. Ethnicity and gender add another dimension to discrimination, with most persons with intellectual disabili-ties facing multiple discrimination.215 Research by the Mental Disability Advocacy Centre (MDAC) indicated that society was more likely to support a male person with an intellectual disability to exercise legal capacity.216

Exclusion from registration

Stigma against persons with intellectual disabilities, which are manifested from birth, may preclude birth registration.217 Without birth registration, it is difficult to obtain a national identity card, a prerequisite for the voter registra-

210 Kenya National Commission on Human Rights and Open Society Initiative for Eastern Africa, How to implement Article 12 of Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya, 83.

211 Kamundia E, ‘Choice, support and inclusion: Implementing Article 19 of the CRPD in Kenya’ 1 African Disability Rights Yearbook (2013), 62.

212 Interview with Wangare F on 19 September 2014.213 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 23.214 Section 45, Persons with Disabilities Act (Act No. 14 of 2003).215 Katsui, Ranta, Yeshanew, Musila, Mustaniemi-Laakso and Sarelin, Reducing inequalities, 70. Equal

Rights Trust, In the spirit of Harambee, 41.216 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 59.217 Redley M, Maina E, Keeling A and Pattni P, ‘The voting rights of adults with intellectual disabilities:

Reflections on the arguments and situation in Kenya and England and Wales’ 56 Journal of Intellectual Disability Research, 11 (2012), 1031.

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tion process.218 In the 2013 elections, family members were among those who opposed voter registration of persons with intellectual disabilities.219 By failing to support persons with intellectual disabilities in obtaining the necessary docu-ments, their families therefore serve as gatekeepers to political participation.

Restrictions of freedoms of movement and association

While relatives of persons with intellectual disabilities theoretically acknowl-edge their right to make decisions, they view their dependence and reduced ca-pacity as justifications for substituted decision-making.220 They therefore curtail the movement of persons with intellectual disabilities or require them to be ac-companied when they go out.221 This both erodes the dignity of the person with an intellectual disability and reduces the opportunities for political participation. Freedom of movement is indispensable to political participation.222 Restricted movement, combined with the perception of reduced capacity, makes it unlikely that persons with intellectual disabilities will be able to attend political meetings or ‘campaign for a political party or cause’.223

Customary practices

Stereotypes about persons with intellectual disabilities embedded in the culture of some ethnic communities such as the Kikuyu224 also hinder politi-cal participation. Persons with intellectual disabilities are perceived as ‘idiots’ or ‘stupid’,225 resulting in their exclusion from circumcision ceremonies, which sig-nify transition into adulthood.226 It is highly unlikely that a person not deemed an ‘adult’ will be considered capable of taking part in adult activities such as voting or providing leadership.

218 Redley, Maina, Keeling and Pattni, ‘The voting rights of adults with intellectual disabilities’, 1031.219 Interview with Wangare F on 19 September 2014.220 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 33.221 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 33.222 Office of the United Nations High Commissioner for Human Rights, Thematic study by the Office of the


223 Article 38(3), Constitution of Kenya (2010).224 Kikuyu is the largest ethnic community in Kenya; CIA World Fact Book https://www.cia.gov/library/publications/the-world-factbook/fields/2075.html on 21 October

2014.225 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 24.226 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 24.

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The electoral process

Voter registration

The prejudicial attitudes revealed in the 2010 Nyokabi case are partly attrib-utable to lack of training.227 Poorly trained electoral officials serve to discourage persons with intellectual disabilities from voting.228 Though lobbying by Disabled People’s Organisations (DPOs) has facilitated voter registration for some per-sons with intellectual disabilities, negative societal attitudes precluded many of them from voting.229 According to Lord et al, the voter registration process is cru-cial in highlighting the diverse accessibility needs of persons with disabilities.230

Voter education

Due to the diverse needs of the electorate, voter education should be made available in varied forms for effective outreach.231 Persons with intel-lectual disabilities need information in easy read and other accessible formats such as CDs, videos, interactive CD-ROMs, murals or role-play.232 These for-mats benefit not only persons with intellectual disabilities but also people with other kinds of disabilities such as people who are deaf.233 DPOs have previous-ly been excluded from the development of voter education material, but after lobbying, the Kenya Association for the Intellectually Handicapped (KAIH) advised IEBC on the presentation of voter material to persons with intellectual disabilities in 2013.234

Drafting electoral legislation

The process of drafting new electoral legislation under the 2010 Constitu-tion provides further evidence of barriers to the full participation of persons with intellectual disabilities. By consulting persons with disabilities through the umbrella body, United Disabled Persons of Kenya (UDPK),235 the peculiar needs

227 KAIH has been involved in training judicial officers on legal capacity in Kenya; Interview with Wan-gare F on 19 September 2014.

228 Mute, ‘Shattering the glass ceiling’, 4.229 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 37.230 Lord, Stein and Fiala-Butora, ‘Facilitating an equal right to vote for persons with disabilities’, 125-

126.231 Lord, Stein and Fiala-Butora, ‘Facilitating an equal right to vote for persons with disabilities’, 127.232 UK Department of Health, Making written information easier to understand for people with learning disabilities:

Guidance for people who commission or produce easy read information revised edition, 2010, 24.233 UK Department of Health, Making written information easier to understand for people with learning disabilities,

24.234 Interview with Wangare F on 19 September 2014.235 Interview with Wangare F on 19 September 2014.

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of persons with intellectual disabilities were not addressed since, as this paper has reiterated, their inclusion needs are unique.236

Double invisibility

There is a huge inequality among disability groups in Kenya.237 Many Ken-yans perceive disability to mean physical impairment238 and this has affected the quest of persons with intellectual disabilities greater inclusion. Not only are per-sons with intellectual disabilities presented with fewer opportunities,239 but they also have first to lobby other persons with disabilities to convince them of their competence before seeking to exercise their participation rights.240

The wider society

Kenya has a very vibrant political culture, with political debate often domi-nating public discourse, in both electronic and print media and more recently social media.241 However, the format of the information makes it generally in-accessible for persons with intellectual disabilities,242 and precludes them from benefiting from and contributing to the dialogue.

Due to the perception that persons with intellectual disabilities are inca-pable of independent decision-making, they are often ignored by political parties during campaigns and in candidate selection.243 This coupled with the identity as opposed to issue-based nature of Kenyan politics makes it difficult for persons with intellectual disabilities to access party nominations.

236 According to Dimopoulos, persons with intellectual disabilities’ needs are so peculiar that they do not fit into the models of disability, including the social model; Dimopoulos, Issues in human rights protection of intellectually disabled persons, 22.

237 Interview with Mute L, member, ACmHPR Working Group on the Rights of Older Persons and Persons with Disabilities in Africa, on 15 October 2014.

238 Interview with Commissioner Mute L on 15 October 2014.239 Smith RB, Morgan M and Davidson J, ‘Does the daily choice making of adults with intellectual dis-

ability meet the normalisation principle?’ 30 Journal of Intellectual & Developmental Disability, 4 (2005), 227.

240 One person with an intellectual disability reportedly dropped out of the race for a county represen-tative seat in the 2013 elections following pressure from other persons with disabilities; Interview with Wangare F on 19 September 2014.

241 Odinga C, ‘Use of New Media during the Kenya Elections’ Unpublished Master’s Thesis, University of Uppsala, June 2013, 18.

242 Ingstad B and Grut L, ‘See me, but do not forget me: People with disabilities in Kenya’ SINTEF Health Research (2007).

243 Lord JE, Guernsey KN, Balfe JM and Karr VL, Human rights. Yes! Action and advocacy on the rights of persons with disabilities, University of Minnesota, Minneapolis, 2012, 60.

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Even where persons with intellectual disabilities meet registration and qualification criteria, they sometimes experience de facto discrimination. MDAC recounted the experience of a woman in her 30s who was shoved out of a vot-ing queue by other voters in the 2013 elections. Another person in his 40s, with intellectual disability who attempted to vie for political office was forced to bow out of the race when his opponents carried out a smear campaign, labelling him ‘crazy’.244

The law in practice

Despite inclusive provisions in the 2010 Constitution, the application of certain laws disproportionately affects persons with intellectual disabilities and exacerbates their exclusion.

Inadequate supported decision making mechanisms

Despite having a transformative Constitution, MDAC’s research indicates that lack of support is still a hindrance to the exercise of participation rights by persons with intellectual disabilities.245 Currently, there are limited SDM mecha-nisms.246

Whereas Regulation 72 of the 2012 Elections (General) Regulations at-tempts to make voting more accessible to persons with disabilities, it homogenis-es them and presumes that they need the same kind of support, while support requirements vary. The discretion given to the presiding officer to exclude a per-son with a disability who does not meet the requirements can also be prejudicially applied against persons with intellectual disabilities where electoral officials are not properly trained. Moreover, unaccompanied persons with intellectual dis-abilities may have their right to secrecy violated since the Regulation stipulates that the presiding officer assist them in the presence of agents.247 To address secrecy of the ballot, countries such as Liberia and Ghana have adopted tactile ballots to allow persons with visual impairments to vote on their own.248 Sup-port caregivers for persons with intellectual disabilities are also not accorded the same treatment as support caregivers for persons with disabilities. According to

244 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 39.245 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 36.246 Interview with Wangare F on 19 September 2014.247 Regulation 72(2), Elections (General) Regulations (Legal Notice 128 of 2012).248 Lord, Guernsey, Balfe and Karr, Human rights, 53.

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Ms Wangare, Kenyan society is yet to accept their role as vital to a person with intellectual disabilities.249

Educational requirements

Since 2010, eligibility for public office now includes certain educational re-quirements.250 These requirements disproportionately affect persons with disabil-ities, particularly persons with intellectual disabilities, most of who are excluded from accessing education early in life by being locked away.251 Persons with intel-lectual disabilities who access education attend special schools where they do not receive the certification required by the law.252 Exclusion from education also has an impact on their voter literacy levels.253 To ensure meaningful participation, a holistic approach is therefore necessary, targeting also inclusion in education as required under Article 24 of the CRPD.

According to MDAC, for persons with intellectual disabilities to exercise their participation rights, they would have to live in the community (rather than an institution), be interested in politics, have a support system either in the form of family or an NGO, not be perceived to be of unsound mind by electoral of-ficials and be able to physically access the polling station and mark the ballot either individually or through an assistant.254 The next section proposes measures to make political participation of persons with intellectual disabilities more ef-fective.

Implementing political participation rights for persons with intellectual disabilities in Kenya

While Kenya’s law does not expressly disenfranchise persons with intellec-tual disabilities, the full exercise of participation rights continues to be hampered by informal family guardianship and negative societal attitudes. Raising aware-ness to tackle the negative attitudes that continue to engender exclusion is there-

249 Interview with Wangare F on 19 September 2014.250 Articles 99 and 193, Constitution of Kenya (2010); Sections 22, 24 and 25, Elections Act (Act No. 24 of

2011).251 An estimated 98% of persons with disabilities in Kenya do not access education. See Leonard Cheshire

Disability, Making rights a reality: Young Voices on the UN Convention on the Rights of Persons with Disabilities, 2013, 10.

252 Interview with Wangare F on 19 September 2014.253 Interview with Wangare F on 19 September 2014.254 Mental Disability Advocacy Centre, The right to legal capacity in Kenya, 27.

Lucianna Thuo


fore necessary. In the words of Dinerstein, ‘rhetorical identification of the shift from substituted to supported decision making’ is one thing, fully implementing a supported decision making regime is another.255 If the situation of persons with intellectual disabilities is not addressed, persons with intellectual disabilities will be unable to take up the five percent quota established by Article 54(2) of the 2010 Constitution, thereby further marginalising persons with intellectual dis-abilities not only in the society but also in the wider disability rights movement.

Recommendations

In order for Kenya to meet universal and regional standards of political participation, concerted efforts by all stakeholders including the State, the IEBC, DPOs and families of persons with intellectual disabilities are necessary.

The State

While ‘soundness of mind’ is not the greatest barrier to the exercise of par-ticipation rights, it needs legislative or judicial interpretation. Lack of definitional clarity in the context of prevalent prejudicial attitudes leaves room for it to be prejudicially interpreted against persons with intellectual disabilities.256 Moreover, the State should put in place, in consultation with all stakeholders, an effective SDM mechanism, with different levels of support and appropriate safeguards. Beyond Regulation 72, it is imperative that the State sets clear parameters for support. Inclusion International has developed a guide for crafting SDM mecha-nisms that can be adopted.257 Safeguards against voter fraud and undue influence already present in electoral law258 can be incorporated into the SDM mechanism.

Beyond reserving positions for persons with disabilities at the national and county level,259 the State should secure the inclusion of persons with intellectual disabilities in the devolved system through support mechanisms such as formal

255 Dinerstein, ‘Implementing legal capacity under Article 12 of the UN Convention on the Rights of Persons with Disabilities’, 8.

256 KNCHR has proposed constitutional amendment. See Kenya National Commission on Human Rights, From norm to practice: A status report on implementation of the rights of persons with disabilities in Kenya, 2014, 44.

257 http://inclusion-international.org/wp-content/uploads/2014/07/Appendix-3-SDM-Dialogue-Guide.pdf on 10 March 2016.

258 Section 63, Elections Act (Act No. 24 of 2011).259 Persons with Disabilities (Amendment) Bill (Senate Bill No. 24 of 2014).

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support persons260 or personal assistants.261 Kenya can seek the assistance of countries with a longer history of SDM, since Article 32 of the CRPD promotes international cooperation.262

It is also incumbent upon the State to collect statistics on persons with intellectual disabilities to inform policy-making, including streamlining birth and voter registration processes, and inclusive education for persons with intellectual disabilities. Registration and education would facilitate participation by persons with intellectual disabilities.

The IEBC

Electoral officials are uniquely placed to either facilitate inclusion or pro-long exclusion. The IEBC should therefore continuously engage with DPOs to orient electoral officials to the unique needs of persons with intellectual dis-abilities. It is noteworthy that the IEBC is currently developing a gender and disability inclusion policy,263 which provides an opportunity for the specific needs of persons with intellectual disabilities to be addressed. Where necessary, the IEBC can make specific regulations for participation by persons with intellectual disabilities.264

DPOs

Disabled people’s organisations can use existing regional mechanisms, such as the African Peer Review Mechanism (APRM), to lobby for the implementa-tion of participation rights. The APRM requires states to report on the imple-mentation of the rights of vulnerable groups, including persons with disabilities. Since APRM secures the highest level of participation (heads of state), it is a good forum for securing state commitment on improving the participation rights of persons with intellectual disabilities, in light of the political sensitivity of the issue.

260 Caldwell J, Hauss S and Stark B, ‘Participation of individuals with developmental disabilities and families on advisory boards and committees’ 20 Journal of Disability Policy Studies, 2 (2009), 103.

261 Concluding observations of the Committee on the rights of persons with disabilities: Spain, paras 47-48.


263 http://www.iebc.or.ke/index.php/component/content/article/80-news-archives/octo-ber-2014/387-iebc-developing-gender-disability-inclusion-policy on 10 March 2016.

264 Section 109(o) Elections Act (Act No. 24 of 2011).

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DPOs should empower persons with intellectual disabilities to claim their own rights through self-advocacy. Self-advocacy shifts societal perception as to their decision-making capacity,265 which would not only allow them to access the vote but also demonstrate that persons with intellectual disabilities are capable of leadership. In Australia, persons with intellectual disabilities representatives on government disability advisory councils are often drawn from self-advocates.266 Existing self-advocacy initiatives run by KAIH and Users and Survivors of Psy-chiatry-Kenya (USP-K)267 should be strengthened.

Donors

Kenya is currently listed as the world’s eighth highest recipient of donor funding268 and the electoral process is no exception.269 If donors make inclusion of persons with intellectual disabilities part of the pre-election and post-election assessments, it will give a greater impetus for the State to give effect to its CRPD obligations.270

The family and the wider society

Since deprivation of legal capacity in Kenya is predominantly informal, the State should take immediate steps ‘to raise awareness throughout society, including at the family level’271 on persons with disabilities’ rights and the need to respect their dignity. Although KAIH is currently involved in such training initiatives,272 it is limited in resources and capacity.


266 Frawley P and Bigby C, ‘Inclusion in political and public life: The experiences of people with intel-lectual disability on government disability advisory bodies in Australia’ 36 Journal of Intellectual & Developmental Disability, 1(2011), 31.

267 Kenya National Commission on Human Rights and Open Society Initiative for Eastern Africa, How to implement Article 12 of Convention on the Rights of Persons with Disabilities regarding legal capacity in Kenya, 116, Interview with Wangare F on 19 September 2014.

268 http://www.fundsforngos.org/featured-Article s/ten-ten-grantmaking-donors-ngos-kenya/ on 5 October 2014.

269 United States Agency for International Development, Support for Kenya’s 2013 elections: Rapid assessment review http://www.usaid.gov/sites/default/files/documents/1866/Kenya%2527s%25202013%2520Elections.pdf on 5 October 2014.

270 Lord, Stein and Fiala-Butora, ‘Facilitating an equal right to vote for persons with disabilities’, 122.271 Article 8(1), Constitution of Kenya (2010).272 Interview with Wangare F on 19 September 2014.

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Conclusion

The CRPD has had a positive impact on Kenya’s law undeniably. Affirma-tive action provisions such as Article 54(2) of the 2010 Constitution provide evidence of this positive influence. According to one expert, ‘the glass is now half-full’.273 The CRPD’s foundational principles can now be built upon to foster further inclusion.

The right to hold office appears more controversial than the right to vote. Even countries with a longer democratic tradition still restrict holding office to those not under guardianship. Although the CRPD Committee’s proposal of personal assistants as a support mechanism may not provide the kind of strong guarantee that many crave before accepting that persons with intellectual disabili-ties can hold office, it is important to remember that disability is an evolving con-cept.274 While it may not be foreseeable how persons with intellectual disabilities can effectively hold office, with the continued evolution of support mechanisms, they will be better placed to hold office, thereby reducing their marginalisation both in society and in the disability community.

The current exclusion of persons with intellectual disabilities mirrors the historical exclusion of women, immigrants, slaves and minority groups. While it was once inconceivable that women were capable of political participation, today it is unthinkable to contend that they cannot vote or hold leadership positions. Perhaps, as Inclusion International suggests, it is not that persons with intellec-tual disabilities are incapable of making decisions and expressing opinions; it is that we are not prepared or at least equipped to hear them.275

273 Interview with Commissioner Mute L on 15 October 2014.274 Para (e), Preamble, Convention on the Rights of Persons with Disabilities.275 http://inclusion-international.org/voices-disability-world-listens/ on 10 March 2016.


Chinese foreign direct investment and human rights in Kenya: A mutually-affirming relationship?Rosemary Mwanza*

Abstract

Does the increase in Chinese foreign direct investment (FDI) inflows into Kenya

portend doom for human rights in the country? The prominent narrative has

been that FDI undermines human rights in host states, especially those in the

developing world. This narrative is countered by claims that there exists a mutu-

ally affirming relationship between FDI and human rights. Proponents of this

view posit that FDI facilitates the diffusion of human rights norms and correlates

with the improved rule of law in host states. They also point to emerging human

rights jurisprudence in international investment arbitration as evidence of a re-

ciprocal relationship between FDI and human rights. In light of these arguments,

this paper analyses the extent to which such a reciprocal relationship bears out

between Chinese FDI and human rights in Kenya. It will be demonstrated that

given the lack of a framework for human rights accountability for corporations at

the international level, the restrictive treatment of human rights in international

investment arbitration tribunals and weak institutional capacity in host states, a

positive overlap between FDI and human rights is hardly a panacea for human

rights protection in Kenya. Therefore, a synergy of legal measures and non-legal

measures provide a pragmatic approach to insulate human rights from violations

that may be associated with Chinese FDIs.

* LL.M. University of Southern California; Attorney at Law, NY, US; Lecturer, Catholic Univer-sity of Eastern Africa Law School

Rosemary Mwanza


Introduction

Chinese foreign direct investment (FDI) inflows into Kenya have grown at an exponential rate over the last few years.1 The genesis of the present increase in Chinese FDI in Kenya can be traced to the long-standing history of diplomatic and trade relations between China and Africa.2 In 2012, Chinese FDI inflows into Kenya stood at US$2.4 billion up from US$500 million in 2010.3 In 2014, more than 50 Chinese companies were working on about 80 projects in Kenya with an estimated value of US$2 billion.4 Investment in public infrastructure has been one of the main sources of Chinese FDI in Kenya. Three Chinese com-panies were responsible for the construction of the Thika Superhighway, a 50 kilometre eight-lane highway from Nairobi to Thika town. The Lamu Port-South Sudan-Ethiopia Transport Corridor Project (LAPSSET),5 which is a composite construction project of a corridor from the town of Lamu on the Kenyan Coast, to Ethiopia and South Sudan is another example of Chinese involvement in mas-sive infrastructure projects in the country.6 In addition to setting up local manu-facturing plants in order to edge into the local markets,7 Chinese corporations have also invested in the mineral exploration and exploitation sector8 and the energy sector.9 Even though comprehensive information on Chinese investment

1 For an overview of Chinese investment in Kenya, see, Fiott D, ‘The EU and China in Africa: The case of Kenya’ 3 Madariaga Paper, 5 (2010). See also, Onjala J, ‘A scoping study on China-Africa economic relations: The case of Kenya’ The African Economic Research Consortium (AERC), Nairobi, 5 March 2008.

2 See generally, Kioko PM, ‘A study on Chinese’s economic relations with Africa: Case study Kenya’ 2 Prime Journal of Business Administration and Management, 3 (2012) and, Konings P, ‘China and Africa: Building a strategic partnership’ 23 Journal of Developing Societies, 3 (2007), 343, 485-496.

3 International Monetary Fund, Kenya: Fourth review under the three-year arrangement under the extended credit facility, request for waiver and modification of performance criteria-staff report; Press release on the Executive Board Discussions; and Statement by the Executive Director for Kenya, Country Report No. 12/300, 2012, 6.

4 Africa Policy Institute, China in Kenya: A tale of two dreams, Africa Policy Brief, 2014.5 Information regarding the LAPSSET project can be found at http://www.lapsset.go.ke/ on 11 August

2016.6 ‘Judy Mwende: China firm wins port Lamu tender’ Construction Business Review, 12 April 2013 http://www.

constructionkenya.com/2899/china-communications-wins-lamu-port-tender/ on 11 August 2016. 7 ‘Victor Juma: Chinese manufacturers go local in battle for Kenya’s consumers’ Business Daily, 11 April

2011 http://www.businessdailyafrica.com/Corporate+News/Chinese+manufacturers+go+local+in+battle+for+Kenyas+consumers/-/539550/1142098/-/item/0/-/y3u2w2/-/index.html on 11 Au-gust 2016.

8 Some Chinese mining interests in Kenya include: Fenxi mining Company, a Chinese company was granted a mining concession for mining of coal in exploration blocks C and D within Mui basin in Kitui County in 2011; A consortium led by HCIG Energy Investment Company, a Chinese firm was granted a license to develop blocks A and within the Mui Basin in Kitui County.

9 ‘Catherine Riungu: Chinese power firm makes Kenya entry’ The East African Standard, 30 Novem-ber 2009 http://www.theeastafrican.co.ke/business/2560-814314-y3k0lb/index.html on 11 August 2016.

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Chinese foreign direct investment and human rights in Kenya


interests in Kenya is not readily available, what is clear from the examples cited is that Chinese FDI into Kenya is becoming increasingly an important component of its economy.

The exponential growth of Chinese FDI inflows into Kenya necessitates an assessment of its potential or real effects on human rights. This is due to con-cerns arising from evidence linking multinational corporations (MNCs), the main agents of FDI, to egregious human rights violations in host states, especially those in the developing world. Further, the increase in Chinese FDI in Africa as a whole has engendered much interests with some studies concluding that its impact on human rights in Africa is generally a negative one.10 Some studies have found a link between FDI and poor civil liberties performance11 and a race to the bottom in labour standards in several host states.12 Similarly, FDI has been shown to correlate with the pollution haven phenomenon which occurs when a host state‘…sets its environmental standards below the socially efficient level or fails to enforce its standards in order to attract foreign investment from countries with higher standards or countries that enforce their standards better.’13

Critics also argue that FDI undermines human rights because of the inves-tor-centric nature of investment agreements. They point to stabilisation clauses, a common feature in investment contracts, which effectively create a regulatory chill on the power of host states to take measures pursuant to their tripartite duty to respect, protect, and fulfill.14 Additionally, whether corporations as non-state actors are mere objects or subjects of international human rights law is still an open question.15 To date, efforts to address this gap by establishing binding human rights obligations for corporate actors have borne no decisive outcome. Lack of a comprehensive treaty to hold foreign investors accountable for human

10 See for example, Adisu K, Sharkey T and Okoroafa S, ‘The impact of Chinese investment in Africa’ 5 International Journal of Business and Management, 9 (2010), 3.

11 Adam A and Filippaios F, ‘Foreign direct investment and civil liberties: A new perspective’ 23 Euro-pean Journal of Political Economy, 4 (2007), 1038.

12 See for example, Olney WW, ‘A race to the bottom? Employment protection and foreign direct investment’ 91 Journal of International Economics, 2 (2013), 191.

13 Neumayer E, ‘Pollution havens: An analysis of policy options for dealing with an elusive phenom-enon’ 10 Journal of Environment and Development, 2 (2001), 148.

14 For example, in Piero Foresti v South Africa (ICSID Case No. ARB(AF)/07/1), South Africa was sued by European investors, who claimed that the Black Economic Empowerment (BEE) provisions of the Minerals and Petroleum Resources Development Act of 2002 (MPRDA), amounted to breach of investment treaties. In Vattenfall v German (II) (ICSID Case No. ARB/09/6), Germany’s measure to wean itself of nuclear energy based on economic, health, environmental and safety considerations was challenged by investors as a breach of investment treaties.

15 Alvarez JE, ‘Are corporations “subjects” of international law?’ 9 Santa Clara Journal of International Law, 1 (2011), 1.

Rosemary Mwanza


rights violations has undoubtedly been a major impediment to holding investors accountable for such violations.16 Moreover, the fact that the Rome Statute of the International Criminal Court precludes the Court from exercising jurisdic-tion over corporations is evidence of a measure of reticence by the international community to subject corporations to direct accountability for human rights vio-lations.17

Despite the criticism against FDI with regard to its deleterious effects on human rights, arguments that foreign investors’ interests and human rights are mutually affirming provide a strong counter-narrative. A mutually-affirming re-lationship is said to exist where there is reciprocity between FDI and human rights. Reciprocity manifests itself where a host state’s strong human rights per-formance serves as a positive location determinant for FDI, thus attracting more foreign investment. This in turn encourages host nations to improve their human rights performance in order to attract more FDI. Research examining the link between FDI and human rights indicates that different types of FDI encourage host states to promote the respect of human rights, thereby strengthening their human rights regimes.18 In this regard, the narrative is usually that globalisation creates economic growth, which in turn facilitates the creation of an economic middle class. The members of the middle class are typically highly educated in-dividuals who possess a heightened awareness of civil and political rights.19 A rights-conscious middle class is able to demand from the state the fulfillment of its rights. Consequently, the overall effect is the improvement of both civil and political rights, and socio-economic rights.20

Proponents also argue that as more FDI flows into host states, investors import superior human rights standards through initiatives such as corporate social responsibility (CSR) programmes. Accordingly, under certain conditions, FDI can lead to a race to the top in environmental protection standards.21 This position stands in opposition to a view that FDI automatically correlates with en-vironmental degradation in host states. Further, it has been posited that interna-

16 Deva S, ‘Human rights violations by multinational corporations and international law: Where from here?’ 19 Connecticut Journal of International Law, 1 (2003), 1.

17 Article 25, Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90.18 Hafner-Burton EM, ‘Right or robust? The sensitive nature of repression to globalization’ 42 Journal

for Peace Research, 6 (2005), 695.19 Apodaca C, ‘Global economic patterns and personal integrity rights after the Cold War’ 45 Interna-

tional Studies Quarterly, 4 (2001), 587.20 Apodaca, ‘Global economic patterns and personal integrity rights after the Cold War’, 587.21 Dong B, Gong J and Zhao X, ‘FDI and environmental regulation: Pollution haven or a race to the

top?’ 41 Journal of Regulatory Economics, 2 (2012), 216.

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tional investment arbitration tribunals contribute to the development of human rights jurisprudence by relying on human rights defenses to arrive at decisions. On the basis of this view, international human rights law and investment law are mutually-affirming components of a unified system of international law.22

Given the contrasting positions outlined above, the position that FDI has a negative impact on human rights is not a matter about which it is easy to be dogmatic. Predictably then, the relationship between the two has been described as an ambiguous one.23 Against this background, this article analyses the extent to which a mutually affirming relationship between Chinese FDI and human rights in Kenya can or does exist. In order to set the discussion in context, part 2 analy-ses the real and potential impacts of Chinese FDI on human rights in Kenya. This is followed in part 3 by an examination of the extent to which a mutually affirming relationship bears out between human rights in Kenya and Chinese FDI in practice. Part 4 explores legal and non-legal measures that can be used to provide a cushion against human rights violations by Chinese corporate entities operating in Kenya.

Impact of Chinese FDI on human rights in Kenya

As Chinese FDI in the extractive industry continues to soar, concerns about its potential impact on the environment are not unfounded. Mining exploration and exploitation have been associated with some of the worst forms of environ-mental degradation. It has been noted that this kind of FDI can

…fuel economic development at a scale and pace that overwhelms host country regulatory capacity, resulting in inefficient and irreversible environmental destruction and even poten-tially a decline in overall welfare.24

Concerns for environmental degradation are also fuelled by the environ-mental culture in China, exemplified by high levels of domestic pollution. For example, the high levels of pollution in China came under sharp focus shortly before and during the 2008 Olympics, raising questions about the suitability of

22 Fry JD, ‘International human rights law in investment arbitration: Evidence of international law’s unity’ 18 Duke Journal of Comparative and International Law (2007), 77.

23 Letnes B, ‘Foreign direct investment and human rights: An ambiguous relationship’ 29 Forum for Development Studies, 1 (2014), 33.

24 Mabey N and McNally R, ‘Foreign direct investment and the environment: From pollution havens to sustainable development’ World Wide Fund for Nature Report (1999).

Rosemary Mwanza


Beijing as a host for the event.25 Arguably, this phenomenon has been attributed to government policies that prioritise economic growth over environmental pro-tection.

In an attempt to address pollution problems without negating economic growth, China has considered moving high-polluting industries to Africa.26 Such a policy strategy can correctly be viewed as a constituent factor of the ‘pollution haven’ phenomenon. When such measures are coupled with weak enforcement of environmental protection laws, the possibility of a pollution haven phenom-enon in Kenya is not far-fetched. In certain instances, public institutions have demonstrated little capacity or will for oversight. even in cases where investment projects carry a high potential for environmental degradation.27 This combina-tion of endogenous and exogenous factors places the environment in an increas-ingly precarious situation.

As with the pollution haven phenomenon, a race to the bottom in labour standards happens when host countries compete to deregulate the strong protec-tion of labour rights in order to increase their competitive advantage relative to other countries. Investors respond to this by ‘racing’ to the countries with low labour standards because low labour standards imply low operating costs and better profits. For example, following the practice in a number of countries, export processing zones (EPZs) in Kenya were exempt from certain labour law obligations.28 Certainly, investors in EPZs were incentivised by the favourable labour standards offered through outright legal exemptions. This only changed in 2003, following several industrial strikes by EPZ workers demanding better working conditions.29 As a caveat, it is important to note that other factors such as tax incentives and exemption from tariffs and quota in export destinations also played a role in investors’ locational choices.30

25 ‘Paul Kelso: Olympics: Pollution over Beijing? Don’t worry, it’s only mist, say officials’ The Guard-ian, 6 August 2008 https://www.theguardian.com/sport/2008/aug/06/olympics2008.china on 12 August 2016.

26 ‘Dexter Roberts: China’s plan to export pollution’ Bloomberg Business, 28 November 2014 http://www.bloomberg.com/news/articles/2014-11-27/chinas-pollution-solution-move-factories-

abroad on 12 August 2016. 27 For instance, the LAPSSET project took off without an EIA despite the obvious implications to the

environment. The same is reported to have happened in the Nicaraguan Canal Project which was started without a comprehensive EIA.

28 International Federation for Human Rights, Economic development of human rights? Assessing the impact of Kenya’s trade and investment policies and agreements on human rights, 2008.

29 International Federation for Human Rights, Economic development of human rights?.30 Chen C, Foreign direct investment in China: Location determinants, investor differences and economic impacts,

Edward Elgar, Cheltenham, 2011, 69.

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Even where host states have legal and institutional frameworks in place for the protection of labour rights, they may still compete for FDI by deliber-ately failing to enforce labour laws.31 It is also true that most host states in the developing world lack the capacity to enforce labour standards.32 Fortunately, a race to deregulate labour standards in Kenya is not apparent.33 This notwith-standing, Chinese companies operating in the country have been implicated in conduct that would, if proved, amount to a breach of constitutionally protected labour rights.34 This is not surprising given the fact that Chinese companies have had overall a poor record regarding labour practices in several African states.35 Whether this state of affairs will persist or abate is uncertain. There is reason for optimism, however, stemming from the fact that several Chinese companies in Kenya have signed collective agreements with Kenya Building, Construction, Timber and Furniture Industries Employees Union.36 Such agreements can be used potentially to ensure the protection of labour rights for workers employed by Chinese companies in Kenya.

Another disconcerting aspect of the presence of Chinese investors in Kenya is the danger posed by substandard Chinese products. Chinese consumer goods in the country originate both from direct importation from China and from Chinese companies that have set up manufacturing plants in the coun-try. They include a wide range of food items, cosmetics, drugs, clothing and shoes. China’s products have not always won praise for their safety. For instance, Chinese imports topped the European Union’s list of most dangerous goods in 2015.37 Threats to health and safety do not flow solely from consumption of substandard consumer goods. Substandard infrastructure end-products also pose serious risks to the safety, health and life of citizens.38 Typically, construc-

31 Davies RB and Vadlamannati KC, ‘A race to the bottom in labour standards? An empirical investiga-tion’ 103 Journal of Development Economics (2013), 1, 2.

32 Davies and Vadlamannati, ‘A race to the bottom in labour standards? An empirical investigation’, 1.33 See International Business Publications, Kenya business law handbook: Strategic information and basic law,

vol 1, 2013, 56.34 ‘Zhicong Deng: Chinese companies’ labor dilemma in Kenya’ The China Africa Project, 19 June 2014

http://www.chinaafricaproject.com/chinese-companies-labor-dilemma-kenya/ on 12 August 2016.35 For a discussion, see, Baah A and Jauch H (eds), Chinese investments in Africa: A labour perspective, Afri-

can Labor Research Network, Windhoek, 2009. For a discussion about Chinese labour practices in Zambia’s cooper mining industry, see, Human Rights Watch, “You’ll be fired if you refuse”: Labour abuses in Zambia’s Chinese state-owned copper mines, 2011.

36 Cottle E, ‘Chinese construction companies in Africa: A challenge for trade unions’ 14 Global Labor Column, 179 (2014).

37 ‘“Made in China” tops the EU’s most unsafe list’ China Daily Mail, 1 April 2015 https://chinadailymail.com/2015/04/01/made-in-china-tops-the-eus-most-unsafe-list/ on 12 Au-

gust 2016.38 See ‘Sosthenes Mwita: Fake goods cause economic loses’ Daily News, 22 October 2015

Rosemary Mwanza


tion projects in Kenya are funded by Chinese loans and tied to the condition that the receiving country must spend the funds by contracting with Chinese com-panies.39 This is done in order to secure investment opportunities for Chinese investors. In reality, this practice stifles competition and may lead to substandard work.40 Other contemporary examples support this assertion. In several African countries, some infrastructure projects completed by Chinese firms deteriorated to unsafe degrees shortly after completion.41 Obviously, Chinese firms are not solely to blame for the failed infrastructure projects. Governments have the pri-mary responsibility to ensure that products and services available in the market meet legal safety standards. The situation is normally exacerbated by lack of ac-countability that persists in the wake of such failures.

In addition to the effects of FDI on the rights discussed above, the global movement of capital has an impact on property rights because it often neces-sitates displacement of people from their lands.42 This is normally done through the exercise of the state’s power of eminent domain. Generally, development-induced displacement has a direct impact on individual and community rights of access to land, food and other resources. Several Chinese FDI projects in Kenya have necessitated the involuntary displacement of people from their lands or some form of restriction on the use of land and other resources.43 Although Ar-ticle 40(b) of the Constitution mandates that those displaced through the State’s exercise of eminent domain receive prompt and just compensation, instances of delayed compensation are not rare.44 Prompt payment of compensation does

http://www.dailynews.co.tz/index.php/analysis/43450-fake-goods-cause-economic-losses on 12 August 2016.

39 ‘Dianna Games: Kenyan railway project putting China’s business model on trial’ Business Day Live 3 February 2014 http://www.bdlive.co.za/opinion/columnists/2014/02/03/kenyan-railway-project-putting-chinas-business-model-on-trial on 12 August 2016.

40 See for example, ‘The Chinese in Africa: Trying to pull together’ The Economist, 20 April 2011 http://www.economist.com/node/18586448 on 12 August. 41 ‘Nathan William Meyer: China’s dangerous game: Resource investment and the future of Africa’

Foreign Policy Journal, 12 October 2012 http://www.foreignpolicyjournal.com/2012/10/12/chinas-dangerous-game-resource-investment-and-the-future-of-africa/ on 12 August 2016.

42 Nunow AA, ‘The displacement and dispossession of the Aweer (Boni) Community: The Kenya Government dilemma on the new Port of Lamu’ International Conference on Global Land Grab-bing II, New York, 17-19 October 2012, 5.

43 In 2015, the Government announced plans to acquire land worth US$ 45 million to facilitate the construction of the Mombasa-Nairobi standard gauge railway. See, ‘Joseph Akwiri: Kenya announc-es plan to buy land for standard gauge railway’ Reuters, 10 June 2015 http://www.reuters.com/ar-ticle/kenya-railways-idUSL5N0YW3GB20150610 on 12 August 2016.

44 ‘Bernard Mwinzi: Petitioner stops Uhuru’s railway project over unpaid Sh 1.4 billion’ Daily Nation, 29 June 2016 http://www.nation.co.ke/news/Land-owners-derail-Uhuru-s-biggest-project/1056-3271824-nr8iw8/index.html on 12 August 2016.

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not necessarily cushion those who are dispossessed of land and other resources against the negative consequences of disruption of livelihoods.45

FDI and human rights: Mutually affirming relationship?

In light of the impacts of Chinese FDI on human rights discussed above, this section analyses the extent to which a mutually affirming relationship be-tween Chinese FDI and human rights in Kenya exists, or can exist. The analysis is presented under the following heads: the relationship between FDI and the diffusion of human rights norms; the extent to which FDI can or does promote rule of law; and the potential for emerging jurisprudence from international in-vestment arbitration (IIA) tribunals to advance human rights in host states.

FDI and diffusion of human rights norms

As a facet of globalisation, FDI has been credited for improving human rights in host states either through the diffusion of human rights practices or practices that are supportive of human rights.46 The diffusion of human rights norms occurs where foreign corporations ‘export’ superior human rights prac-tices into host states. Corporations have facilitated the ‘export’ of norms primar-ily through CSR programmes which are premised on the idea that corporations have a responsibility to respect human rights. While the primary duty to protect human rights rests with the state, the widespread acceptance of the responsibility of corporations to respect human rights has become a mainstay of globalisation. This is a move away from the restrictive notion that corporations exist solely for the purpose profit making as conceived by Milton Freidman.47 The paradigm shift is to a large extent attributable to the adoption and dissemination of the United Nations Guiding Principles on Business and Human Rights (UN Guiding Principles) adopted in 2011.48

45 Robinson, WC, ‘Risks and rights: The causes, consequences, and challenges of development-in-duced displacement’ An Occasional Paper (2003).

46 Milner WT, ‘Economic globalization and rights: An empirical analysis’ in Brysk A (ed), Globalization and human rights, University of California Press, Berkeley, 2002, 77–97.

47 Milton F, ‘The social responsibility of business is to increase its profits’ New York Times Magazine, 13 September 1970.

48 United Nations High Commissioner for Refugees, Guiding principles on business and human rights: Imple-menting the United Nations ‘protect, respect and remedy’ framework, UN A/HRC/17/31, 21 March 2011.

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Several factors are relevant to the question as to whether Chinese FDI will facilitate the diffusion of human rights norms in Kenya. Firstly, the effective-ness of CSR programs to facilitate norm diffusion depends partly on the hu-man rights culture of FDI-exporting countries. The human rights culture in FDI exporting countries is shaped by political, social and economic factors unique to the FDI-exporting country. In China, the human rights culture is shaped by the ‘socialist modernisation’ model which prioritises economic development and views the role of human rights merely as facilitative of achieving the overarching goal of economic development marked by wealth maximisation.49 In this sense, the Chinese approach to CSR is fueled by motives unlike those that inform the global CSR agenda, shaped as it is by Western conceptions of human rights as individual entitlements to be asserted against a particular duty holder. Western-inspired CSR is justified by the need to protect civil and political rights as claims that an individual can assert against a duty holder.50 Accordingly, the global CSR agenda is conceived of as a constraint on corporate human rights abuses in line with a duty owed to the individual holder of human rights claims. Conversely, the perspective that human rights are individual entitlements that one can assert against the state or non-state actors does not shape Chinese legal framework to an appreciable degree.51 It follows therefore that both at home and abroad, CSR by Chinese investors is essentially a philanthropic tool instrumental to the attainment of broader national social, political and economic policy goals.52 For this reason, the motivations of Chinese CSR are often in variance with what is expected in a majority of host states, whose CSR paradigm is fashioned after Western conceptions of human rights and the role of the state.53 Not surpris-ingly then, the performance of Chinese companies in CSR programmes has been shown to be poor.54

In addition to the human rights culture of FDI-exporting countries, re-alisation of the goal of CSR programs in FDI-receiving countries is advanced or impeded by legal, cultural and social realities in the host states.55 Thus, even

49 Backer LC, ‘China’s corporate social responsibility with national characteristics: Coherence and dis-sonance with the global business and human rights project’ in Martin J and Bravo KE (eds), The business and human rights landscape: Moving forward, looking back, Cambridge University Press, New York, 2015, 530.

50 See Backer, ‘China’s corporate social responsibility with national characteristics’.51 See Backer, ‘China’s corporate social responsibility with national characteristics’.52 Backer, ‘China’s corporate social responsibility with national characteristics’, 530.53 Backer, ‘China’s corporate social responsibility with national characteristics’, 530.54 Compagnon D and Alejandro A, ‘China’s external environmental policy: Understanding China’s

environmental impact in Africa and how it is addressed’ 15 Environmental Practice (2013), 220.55 Muthuri J and Gilbert V, ‘An institutional analysis of corporate social responsibility in Kenya’ 98

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though Chinese companies are required to abide by local laws in their African operations, weak regulatory and institutional frameworks have been cited as a factor contributing to poor performance of CSR.56

Thirdly, whether corporations succeed as exporters of human rights norms depends on the type or motivations of FDI. For example, cross-border merg-ers and acquisitions in developing countries have been found to have a positive impact on human rights, including ‘…workers’ rights and women’s economic rights, along with both physical integrity and empowerment rights.’57 According to a prevalent classification of FDI by John Dunning,58 this type of FDI falls under the strategic asset/capabilities-seeking category. Chinese FDI in Kenya are composed of all the four categories in Dunning’s typology. However, since most studies examining the impact of FDI on human rights have tended to lump together all types of FDI, it is difficult to determine the impact of spe-cific types of Chinese FDI on human rights in Kenya. In order to harness the potential of CSR programmes as an avenue for norm diffusion, a thorough analysis of the impact of specific types of Chinese FDI on human rights in Kenya would be valuable.

FDI and rule of law

A comprehensive analysis of the meaning of rule of law is beyond the scope of this paper. For the purpose of the discussion in this section, therule of law indicators developed by the World Justice Project provide an under-standing of the substantive meaning of the concept. The indicators include: constraints on government powers; absence of corruption; open government; fundamental rights; order and security; regulatory enforcement; civil justice; and criminal justice.59 Accordingly, when FDI is said to relate negatively or pos-itively with the rule of law, what is meant is that there is a reciprocal relation-ship between FDI and one or several of the indicators of rule of law stated. Certainly, this statement ought to be seen in light of the debate as to whether the strong rule of law in a host state is itself a prerequisite for increased FDI

Journal of Business Ethics, 3 (2011), 476.56 Aklilu N, ‘Greening Africa-China relations: African agents punching below their weight?’ 2 Journal of

China and International Relations, 1 (2014), 26.57 Kim D-H and Trumbore PF, ‘Transnational mergers and acquisitions: The impact of FDI on human

rights, 1981–2006’ 47 Journal of Peace Research, 6 (2010), 723, 732.58 Dunning JH and Lundan SN, Multinational Enterprises and the Global Economy, Edward Elgar Publish-

ing Limited, Cheltenham, 2008, 63-78.59 World Justice Project, Rule of law index, 2015, 23-31.

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inflows, or whether FDI and attendant economic development is what contrib-utes to strong rule of law.60

All else being equal, the rule of law plays an important role as a determinant factor of a country’s ability to attract FDI.61 This is due to the fact that corpora-tions are confident about doing business where contractual and property rights are secured through clear, predictable laws.62 On the other hand, poor rule of law performance in host states is linked to a higher likelihood of political instability, corruption, and weak institutions of governance, which undermine the sustain-ability and profitability of investment. Based on the premise that foreign inves-tors’ location decisions are influenced by the performance of rule of law in host states, governments of host states are incentivised to strengthen the rule of law as a ‘basic asset’ for attracting and retaining FDI.

This is not to say that foreign investors always view weak institutions of governance in host states as a hindrance to investing in those states. Quite the contrary, firms that consider lack of accountability and transparency as a loca-tion advantage consider poor rule of law performance as a positive location determinant. For such firms, weak institutions of governance create numerous opportunities to collude with government officials in order to ‘buy’ investment opportunities.63 Such firms may also consider corruption as a necessary cost of doing business in so far as it helps to circumvent regulatory requirements that are deemed onerous.64 When this is the case, states will have no incentive to strengthen rule of law as a condition for attracting FDI.65

60 For example, the exponential growth of FDI inflows into China, despite it weak rule of law perfor-mance, challenges dogmatic adherence to the notion that rule of law is an absolute prerequisite for FDI inflows.

61 Blanton L and Blanton R, ‘What attracts foreign investors? An examination of human rights and foreign direct investment’69 The Journal of Politics, 1 (2007), 143. See also, Anyanwu JC, ‘Why does foreign direct investment go where it goes? New evidence from African countries’ 13 Annals of Economic and Finance, 2 (2012), 425.

62 Haggard S, MacIntyre A and Tiede L, ‘The rule of law and economic development’ 11 Annual Review of Political Science, 1(2008), 205.

63 In World Duty Free Company Limited v Republic of Kenya, ICSID Case No. ARB/00/7, award of 25 September 2006. Evidence was adduced that an investor bribed the then President, Daniel arap Moi by paying Kenya Shillings 2 million as a ‘personal donation’ to the President. This case is illustrative of the way corruption serves as a way to buy regulatory compliance as long as money is given to the right people.

64 Leff N, ‘Economic development through bureaucratic corruption’, 82 American Behavioral Scientist (1964), 33.

65 Hafner-Burton, ‘Right or robust?’, 696.

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Human rights jurisprudence in international investment arbitration

Human rights feature in IIA tribunals mostly in cases where states rely on them as defences to investor claims arising under bilateral investment treaties (BITs).66 Critics have argued that the restrictive approach with which IIA tri-bunals treat human rights results in the fragmentation of international law, the inevitable result of which is the weakening of human rights.67 Further, the re-strictive treatment of human rights within the IIA framework sends a signal to governments that adopting policies to improve human rights protection at home exposes them potentially to liability. As a result, some states may opt not to take the measures that are necessary to protect human rights where doing so will of-fend the provisions of a BIT or other investment agreements. Viewed this way, the overall impact of the investment law framework is to subordinate human rights to the interests of foreign investors.

A contra narrative to this position is that, far from undermining human rights, emerging jurisprudence in IIA supports human rights by borrowing from human rights jurisprudence to arrive at decisions.68 For example, it is argued that the application of the proportionality test has served as an access point for bringing human rights considerations to bear more on tribunal decisions.69 However, proportionality has been adjudged as an inappropriate transplant into the international adjudication context because it invites arbitrators who lack independence and neutrality to pass value judgments on host policy measures.70 This raises questions on the strength and suitability of the proportionality test as an avenue for bringing human rights considerations to bear on arbitration proceedings.

66 United Nations Conference on Trade and Development, Selected Recent Developments in IIA Arbitration and Human Rights, 2009 UNCTAD/WEB/DIAE/IA/2009/7.

67 See generally, van Aaken A, ‘Fragmentation of international law: The case of international invest-ment protection’ 17 Finnish Yearbook of International Law, 1 (2008), 91.

68 Fry JD, ‘International human rights law in investment arbitration’, 77. Fry argues that IIAs have on numerous occasions relied on human rights jurisprudence. For example, in Mondev International Limited v United States, ICSID Case No. ARB (AF)/99/2, award of October 11 2002, the tribunal borrowed heavily on jurisprudence relating to the right to fair trial/retroactivity of the law.

69 See for example, Kingsbury B and Schill S, ‘Public law concepts to balance investors’ rights with state regulatory actions in the public interest – the concept of proportionality’ in Schill S (ed), International investment law and comparative public law, Oxford University Press, Oxford, 2010, 78.

70 An illustrative argument is that international arbitration tribunals should rely on the language of the relevant BIT and apply the ‘necessity test’ as a standard of review to avoid the risks attendant to the proportionality test approach. See, Ranjan P, ‘Using the public law concept of proportionality to balance investment protection with regulation in international investment law: A critical appraisal’ 3 Cambridge Journal of International and Comparative Law, 3(2014), 853.

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Notably, the application of the proportionality test has not produced con-sistent results in regard to the place of human rights in the international invest-ment landscape. An apt illustration of the limits of the proportionality test is pro-vided by several cases brought against Argentina on the basis of measures taken by the Argentine Government in response to the financial crisis of 2001-2003. The cases alleged that the said measures were contrary to the 1991 US-Argentina BIT. In Continental Casualty Company v Argentina,71 Argentina prevailed on the ba-sis that the measures taken were necessary to protect basic rights and liberties. However, similar human rights defences did not provide reprieve for Argentina in the other cases despite the fact that they had arisen from circumstances that were factually similar to those relating to the Continental Casualty Company case.72

As a consequence of the uncertainty relating to the status of human rights in IIA tribunals, human rights play a peripheral role in shaping adjudicative out-comes.73 A case in point is Biwater Gauff (Tanzania) Ltd v United Republic of Tan-zania.74 Here, the respondent had cancelled a concession previously given to the claimant, on grounds that the claimant’s performance did not conform to the requirements set forth in the concession. The Tribunal allowed amici submissions which, in part, advanced the argument that the respondents actions were neces-sary to protect the human right to clean and safe drinking water and should not be punished therefore as they were taken in good faith. Even though the Tribunal found that the amici submission was ‘useful,’75 the gravamen of the decision was not the human rights considerations but rather the lack of a causal link between Tanzania’s actions and the harm on the claimant.76

Perhaps the clearest illustration of the negative impact of FDI on human rights is the fact that the international arbitration system can be used to directly stifle states’ authority to take measures for the protection of human rights. The Lago Agrio case77 which arose out of allegations of environmental degradation

71 ICSID Case No. ARB/03/9, award of September 5, 2008.72 In Sempra Energy International v Argentine Republic ICSID (Case No. ARB/02/16), award of 28 Sep

2007 the Tribunal rejected the necessity defense on grounds that Argentina had herself contributed to the financial crisis that it sought to remedy by measures that were in breach of the relevant BIT. In Compañiá de Aguasdel Aconquija SA and Vivendi Universal SAv Argentine Republic ICSID Case No. ARB/03/19 award of 9 April 2015. The Tribunal balanced the legitimate expectations of the inves-tor against the state’s need to regulate in order to protect the human right to water.

73 Meshel T, ‘Human rights in investor-state arbitration: The human right to water and beyond’ 6 Jour-nal of International Dispute Settlement, 2 (2015), 277.

74 ICSID Case No. ARB/05/22, award of 24 July 2008.75 ICSID Case No. ARB/05/22, para 355.76 ICSID Case No. ARB/05/22, para 779-808.77 Maria Aguinda and others v Chevron Texaco Corporation, Proceeding No. 002-2003, Sup. Ct. of Justice,

Nueva Loja, Ecuador.

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by Chevron in Ecuador is illustrative of this point. Following a judgment by the Ecuadorian Supreme Court against Chevron for claims arising out of oil spills caused by Chevron’s operations in Lago Agrio, Chevron mounted a series of challenges in US courts and in the Permanent Court of Arbitration (PCA) in a bid to prevent the enforcement of the judgment against Chevron’s assets in the US. The claim before the PCA case was based on the 1997 US-Ecuador bilateral agreement. On 16 February 2012, the PCA issued an interim award (the second of its kind) ordering Ecuador to ‘…take all measures necessary to suspend or cause to be suspended the enforcement and recognition within and without Ec-uador of the judgments.’78 The intended effect of the PCA directive was to force Ecuador to take positive measures to prevent its citizens from enforcing the judgment through all available channels.

There is some truth to the claim that investor-state arbitration tribunals can potentially play a role in strengthening human rights protection. However, based on the analysis above, any such advantage to the human rights regime is purely incidental. The manner with which human rights-based defenses have been dealt by IIA tribunals demonstrates that the international investment landscape is gen-erally not accommodative of human rights. Further, the Chevron-Ecuador case exemplifies how the international arbitration system can be used to subordinate human rights to investors’ interests.

Safeguarding human rights

The foregoing analysis demonstrates the need for pragmatic measures to shield human rights from the deleterious effects of FDI. The measures discussed in the following segment are pragmatic in the sense that they can cushion human rights from violations by corporate actors in a manner that creates a balance be-tween the interests of investors and human rights.

Including human rights provisions in investment agreements

Kenya’s BIT with China, signed in 2001, contains no substantive provisions on human rights.79 Like BITs, other types of agreements entered into by states and investors are usually silent on the human rights obligations of investors.80

78 Chevron v Texaco, Second Interim Award, 16 February 2012, para 3. 79 Ofodile UE, ‘Africa-China bilateral investment treaties: A critique’ 35 Michigan Journal of International

Law, 1 (2013), 138.80 Ofodile, ‘Africa-China bilateral investment treaties’, 199.

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Thus, the absence of human rights provisions in the Kenya-China BIT reflects the common practice globally. It has been argued that many BITs which China has signed with other African countries ‘…do not take into account the fact that most countries in Africa are at their early stages of development and that Africa’s least developed countries are least likely to benefit from such agreements.’81 This is so despite the critical development needs in African countries, one of which is the promotion and respect of human rights.82 The increase in Chinese FDI inflows in Kenya necessitates rethinking of the place of human rights in invest-ment agreements.

In addition to the lack of human rights language in investment agreements, the use of stabilisation clauses limits the authority of host-states to adopt legisla-tive and other measures for the protection of human rights. Even though stabi-lisation clauses are justified as a commercial tool for risk management, one study found that stabilisation clauses in investment agreements between investors and developing countries tend to contain sweeping language that critically curtails the freedom of those states to legislate or take policy measures for the protection of human rights.83

As of July 2016, the Kenya-China BIT is yet to come into force. As such, an opportunity still exists for Kenya to negotiate the inclusion of human rights clauses in the BIT.84 In order to secure optimal protection for human rights, the human rights clause should contain language that expressly preserves the State’s authority to take legislative and policy measures for the protection of hu-man rights. This is in line with United Nations High Commission for Refugees recommendations relating to the responsibility of a state in safeguarding human rights in an era of increased globalisation and attendant human rights abuses.85 Even though the same recommendation is applicable to investment agreements between Kenya and its other trading partners, the exponential growth of Chinese FDI is a strong justification for such a measure.

81 Ofodile, ‘Africa-China bilateral investment treaties’, 131.82 See for example, Shelton D, ‘Protecting human rights in a globalized world’ 25 British Columbia In-

ternational and Comparative Law Review, 7 (2002), 273, and Clapham A, ‘Human rights obligations of non-state actors’ 88 International Review of the Red Cross, 863 (2006), 491.

83 Shemberg A, ‘Stabilization clauses and human rights’ 27 May 2009 http://www.ifc.org/wps/wcm/connect/9feb5b00488555eab8c4fa6a6515bb18/Stabilization%2B

Paper.pdf?MOD=AJPERES on 3 July 2015.84 Information relating to the status of BITs is available at http://investmentpolicyhub.unctad.org/IIA/country/42/treaty/990 on 12 August 2016.85 United Nations High Commissioner for Refugees, Guiding principles on business and human rights.

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Further, to lessen the drastic effect of stabilisation clauses on the ability of a state to protect human rights, Kenya should negotiate the inclusion of a hu-man rights undertaking in all investment agreements signed with China. The idea of the inclusion of human rights clauses to safeguard the state’s duty to respect, protect and fulfill human rights is not uncharted waters. The BTC Human Rights Undertaking relating to The Baku-Tbilisi-Ceyhan Pipeline Project (BTC Pipeline Project)86 offers a good illustration of how to tailor safeguards for human rights. The undertaking was adopted following criticism by Amnesty International that the Host Government Agreements involving BP put human rights at risk of being abused while at the same time curtailing the authority of states to take measures for their protection.87 In effect, the undertaking preserved the author-ity of host governments to regulate for the protection of human rights, health, safety and the environment without incurring the risk of liability for breach of the Host Government Agreement. In this sense, the impact of relevant stabilisa-tion clauses was lessened.

The fact that the Human Rights Undertaking has yet to be subjected to ju-dicial interpretation makes it difficult to fully assess its effectiveness as a measure for enhancing the protection of human rights. The inclusion of human rights clauses in investment contracts is also linked to the ongoing broader discourse on whether including human rights clauses in commercial contracts is compat-ible with the protection of investors’ interests. Nonetheless, exempting specific measures taken by states from the application of stabilisation clauses would le-gitimise human rights defenses in IIA tribunals.88 One approach suggested is the use of broad human rights language in BITs (preferable over-restrictive lan-guage) in order to create reasonable leverage for IIA tribunals to entertain human rights defenses without going beyond their jurisdictional limits.89

Another advantage offered by the inclusion of human rights undertakings in investment agreements is that of setting the stage for a change of attitude about the place of human rights in the foreign investment context. A change of

86 A copy of the human rights undertaking can be viewed athttp://subsites.bp.com/caspian/Human%20Rights%20Undertaking.pdf on 12 August 2016.87 Amnesty International, Human rights on the line: The Baku-Tbilisi pipeline project, 2003.88 Cernic JL, ‘Corporate human rights obligations under stabilization clauses’ 11 German Law Journal, 2

(2010), 210.89 Dumberry P and Dumas-Aubin G, ‘When and how allegations of human rights violations can be

raised in investor-state arbitration’ 13 The Journal of World Investment and Trade, 3 (2012), 349. Includ-ing broadly crafted human rights language in BITs would empower arbitration tribunals to entertain and adjudicate human rights defenses as long as the investor conduct in question is related to the interest/activity protected by the BIT.

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attitude would be instrumental to creating a human rights culture so that human rights are not viewed as the unwelcome interloper in an otherwise comprehen-sive investment law framework. Infusing a human rights culture in state-investor relationships can pave the way potentially for the development of a binding in-ternational treaty to facilitate direct accountability for human rights violations by foreign investors.

Utilising domestic law

The spike in the number of foreign direct liability claims against MNCs in Western states has received much attention and commentary mainly because the cases were seen as an opportunity for access to justice for victims of human rights violations by corporations, especially those from developing countries. However, with only a few of such cases resulting in substantive judgments fa-vourable to the claimants,90 there is the sobering realisation that, contrary to ex-pectations, home-state courts are hardly the optimal forums for litigating human rights cases based on corporate behaviour in host states. In light of this reality, the importance of exploiting the potential of the legal framework in host-states to ensure accountability for human rights violations by corporate actors cannot be overemphasised.

Experience from Nigerian courts is illustrative of the potency of host-states’ domestic institutions and laws to respond to human rights violations by foreign corporate actors.91 The 1994 case of Shell v Farah set the precedent for holding foreign investors accountable for human rights violations.92 Following an oil spill, representatives of a village successfully sued Shell for pollution of a river that was the source of their drinking water. In 2005, the Court in Gbemre v Shell invalidated the law that permitted continued the flaring of gas in Nigeria on grounds that it was inconsistent with the applicant’s right to life and/or dignity of human person enshrined in Section 1(3) of the Constitution of Nigerian and provisions of the African Charter on Human and Peoples’ Rights.93 In Shell v

90 Enneking L, ‘The future of foreign direct liability? Exploring the international relevance of the Dutch Shell Nigeria case’ 10 Utrecht Law Review, 1 (2014), 44.

91 For an overview of cases litigated in the Nigerian courts in 1972-1997, see, Frynas G, ‘Social and environmental litigation against firms in Africa’ 42 The Journal of Modern African Studies, 3 (2004), 363.

92 Shell Petroleum Development Company v Farah(1995) 3 NWLR (Part 382). 93 FHC/B/CS/153/2005. Gbemre v Shell was the first judicial authority in Nigeria to declare that gas

flaring is illegal, unconstitutional and a breach of the fundamental human rights. The Court found that section 3(2) (a) and (b) of Associated Gas Reinjection Act (Chapter A 25 Volume 1, Laws of the

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Meburu, the Court ruled in favour of the respondent who sought, inter alia, a dec-laration that the entry of the defendant/appellant (Shell) into claimant’s parcels of land in Abacheke since 1958 without payment of lease, rent, acquisition or any form of compensation money was unlawful.94

The Lago Agrio case alluded to earlier is a further example of how human rights litigation in host-state courts can enhance accountability for human rights violations of foreign corporations. The suit culminated in a US$8 billion judg-ment by the Ecuadorian Supreme Court on 14 February 2011. In response, Chevron instituted several cases both in US courts95 and in the PCA96 to prevent the execution of the judgment from the Ecuadorian Supreme Court on grounds that the judgment had been obtained fraudulently.97 Even though these maneu-vers have stalled the enforcement of the judgment against Chevron’s assets in the US, Chevron has so far been unable to curtail efforts by the plaintiffs to enforce the Ecuadorian judgment in other jurisdictions where Chevron’s assets are locat-ed.98 The scale of Chevron’s efforts to prevent enforcement of the judgment is a testament that host-state courts are indeed an effective avenue for human rights litigation against corporate violators.

Legal reforms introduced through the Constitution of Kenya (2010) offer an avenue for holding non-state actors accountable for human rights violations. Two developments are significant in this regard. One, Article 22 of the Consti-tution eliminated the stringent requirement of locus standi for litigants wishing to file a petition based on a claim of human rights violation. Under the previ-ous legal regime, some judges only entertained human rights petitions where the petitioner demonstrated direct harm.99 In effect, the requirement of locus standi prevented third-party litigation (public interest litigation) with the result that numerous instances of human rights violations went unaddressed. Second, the development of jurisprudence on the horizontal application of human rights has provided an avenue for direct accountability for human rights violations for

Federation of Nigeria 2004) and Section 1, Associated Gas Reinjection (continued flaring of gas) Regulations (Section 1.43 of 1984) were unconstitutional.

94 (2013) LPELR-21889 (CA).95 Chevron Corporation v Donziger, No. 11 Civ. 0691 (S.D.N.Y., 03/04/2014).96 Chevron Corporation v Republic of Ecuador, PCA Case No. 2009-23.97 See Chevron Corporation v Donziger, No. 11 Civ. 0691 (S.D.N.Y., 03/04/2014).98 The Supreme Court of Canada in Chevron Corporation v Yaiguaje [2015] 3 SCR 69 held that the Ec-

uadorian plaintiffs could enforce the judgement emanating from the Supreme Court of Ecuador in Canada, against Chevron assets in Canada. Efforts to enforce against Chevron assets in Colombia, Brazil and Argentina are ongoing.

99 A classic example is the case of Maathai v Kenya Times Media Trust Ltd [1989] eKLR.

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corporate actors. For instance, the High Court stated in Jemimah Wambui Ikere v Standard Group Limited & another that,

…there are instances where the non-state actors can be and have been held liable for breach of fundamental rights and freedoms. The rigid position that fundamental rights and free-doms only applies vertically has been overtaken by the emerging trend in the development of human rights law and litigation.100

Harnessing the power of the ‘spotlight effect’ through targeted advocacy

Voluntary codes of conduct are vaunted as an effective avenue for ensuring accountability for human rights violations. However, a major weakness stems from the fact that corporations are normally not legally mandated to abide by them and can therefore opt out of them when necessary to protect their bottom line. Due to lack of a compliance-monitoring system, it is quite easy for corpora-tions to opt out of the codes in practice while at the same time retaining their commitment to them in theory.101 Moreover, under the UN Guiding Principles, corporations only have a moral responsibility under international law to protect human rights.102 Further, corporations enjoy internationally recognised privileges but bear little of the obligations stemming from international human rights law. In Europe, for example, corporations can approach the European Court of Hu-man Rights for violations of their human rights under the concept of ‘corpo-rate humanity.’103 In other words, corporate humanity affords corporations the right to invoke claims that have traditionally been reserved exclusively for human beings.104 Superimposed over the state-centric paradigm for protection of hu-man rights that argues that states are primarily responsible for protecting human

100 [2013] eKLR. Other examples of recognition of horizontal application of human rights are: Law Society of Kenya v Betty Sungura Nyabuto[2012] eKLR and D.A.O & Another v The Standard Group Ltd [2013] eKLR.

101 Liubicic RJ ‘Corporate codes of conduct and product labeling schemes: The limits and possibilities of promoting international labor rights standards through private initiatives’ 30 Law and Policy in International Business, 1 (1998), 111. See also, Engle E, ‘Corporate social responsibility (CSR): Market-based remedies for international human rights violations?’ 40 Willamette Law Review, 103 (2004). Engle argues that soft law approaches are generally ineffective unless supplemented by other mea-sures taken by the state.

102 United Nations High Commissioner for Refugees, Guiding principles on business and human rights.103 For a broader discussion on the evolution of the concept and specific rights vested on corporations,

see, van den Muijsenbergh WHAM and Rezai S, ‘Corporations and the Europe and Convention on Human Rights’ 25 Pacific McGeorge Global Business and Development Law Journal, 1 (2012), 43.

104 For a discussion supporting the view that corporations should enjoy certain human rights, see, Dhooge LJ, ‘Human rights for transnational corporations’ 16 Journal of Transnational Law and Policy, 2 (2007), 197. For a contra opinion, see, Grear A, ‘Challenging corporate ‘humanity’: Legal disembodi-ment, embodiment and human rights’ 7 Human Rights Law Review, 3 (2007), 511.

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rights, the totality of these factors contribute to weak accountability for human rights violations of corporate actors.105

In this context, the role of non-governmental organisations (NGOs) as agents and transmitters of the norm of accountability is a significant one. An approach that has been applied with positive results is the so-called ‘spotlight effect’. The spotlight effect is a term used to describe a phenomenon where one believes that their conduct is subject to public scrutiny more than it actually is and as a result changes his/her behaviour in a bid to avoid embarrassment and social stigma.106 Anecdotal studies show that corporations do change their behaviour to avoid being shamed for behaviour that amounts to human rights violations. Normally, corporations do so out of fear that public shaming will lead to consumer boycotts thus undermining profitability.107 Of the spotlight effect, Spur observes that, ‘…what often drives corporations toward higher standards is pressure from public voices and concerned shareholders.’108

On the other hand, it has been argued that the spotlight effect has a chilling effect on new FDI inflows because it discourages MNCs from investing in coun-tries where there is a heightened likelihood of being exposed to public condem-nation.109 While these findings may force a rethinking on the methods and the ex-tent to which pressure is brought to bear on corporate actors to induce changes in behaviour, Chinese FDI in Kenya is not limited only to new inflows of FDI on which the spotlight effect has been shown to have the strongest impact. Chinese investors already form a considerable presence in African countries. Given the centrality of human rights in Kenya’s political democracy, the priority should be to identify ways through which agents of the spotlight effect can bring about and sustain a change of corporate behaviour in favour of human rights.

Globally, NGOs have played a crucial role as entrepreneurs and transmit-ters of the norm of accountability.110 A good example is the case of the advocacy

105 See discussion in, Jochnick C, ‘Confronting the impunity of non-state actors: New fields for the promotion of human rights’ 21 Human Rights Quarterly, 1 (1999), 25.

106 For an exposition on the meaning of the spotlight effect, see, Gilovich T, Savitsky K and Medvec VH, ‘The spotlight effect in social judgment: An egocentric bias in estimates of the salience of one’s own actions and appearance’ 78 Journal of Personality and Social Psychology, 2 (2000), 211.

107 Spar DL, ‘The spotlight and the bottom line: How multinationals export human rights’ 77 Foreign Affairs, 2 (1998), 7.

108 Spar D and Yoffie D, ‘Multinational enterprises and the prospects for justice’ 52 Journal of Interna-tional Affairs, 2 (1999), 557.

109 Barry CM, Clay CK and Flynn ME, ‘Avoiding the spotlight: Human rights shaming and foreign direct investment’ 57 International Studies Quarterly, 3 (2013), 532.

110 Finnemore M and Sikkink K, ‘International norm dynamics and political change’ 52 International Organization, 4 (1998), 887.

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efforts of Amnesty International regarding the Chad-Cameroon Oil and Pipeline Project.111 NGOs have also played a pivotal role in pushing for their account-ability, exposing human rights abuses of Royal Dutch Shell, a multinational oil company operating in the Niger Delta.112 Notwithstanding the less than favora-ble outcomes in many of the legal cases brought against Royal Dutch Shell in Western courts, the cases brought to light the conduct of the MNC and forced the company to adopt several internal policies for addressing the effect of their operations on human rights.113 Similar anecdotes are legion.114 These anecdotes provide useful lessons for NGOs involved in human rights advocacy on the gains that can be had when foreign investors are placed under the spotlight.

Conclusion

A positive link between Chinese FDI and human rights in Kenya is a ten-uous one. As the discussion in this paper has shown, while the positive rela-tionship between FDI and human rights gives credence to an assertion that a mutually affirming relationship exists between human rights and FDI, the said correlation is not a panacea to human rights protection. Chinese FDI presents multiple challenges to the human rights regime in Kenya. Thus, protecting hu-man rights depends on the ability to harness the synergetic power of legal and non-legal measures including; human rights litigation in domestic courts; inclu-sion of human rights language in the Kenya-Chinese BIT and other investment contracts; and targeted advocacy.

111 Amnesty International, Contracting out of human rights: The Chad-Cameroon pipeline project, 2005.112 The involvement of the Center for Constitutional Rights (CCR) and EarthRights International

(ERI) in litigation against the Royal Dutch Petroleum Company and its affiliates demonstrate the impact of NGOs in promoting accountability for human rights.

113 See some of the measures taken by the Royal Dutch Company in, Manby B, ‘Shell in Nigeria: Corpo-rate social responsibility and the Ogoni crisis’ Carnegie Council on Ethics and International Affairs (2000).

114 For example, GAP Inc, one of the largest retailers in the world, was placed under the spotlight after a scandal that broke in 2003 regarding labour practices in its factories Asia. Following the exposure GAP adopted a clear vendor code of conduct to monitor compliance with labour standards. In 2004, GAP became a member of the Business Leaders Initiative of Human Rights (BLIHR). BLI-HR was a group of 14 corporations created to find ways of incorporating the principles expressed in the Universal Declaration of Human Rights into business practices. It ceased operations in 2009. Similarly, Nike Inc., Wal-Mart and Reebok and other retail corporation came under the spotlight for selling apparel produced under sweat-shop conditions. Subsequently, they adopted the Apparel Industry Partnership, a voluntary code of conduct aimed at improving labour practices of workers in countries where the sweatshops were located.


Chronicles of the Doha Wars: The battle of Nairobi – Appraisal of the Tenth WTO Ministerial Mihir Kanade*

Introduction

The Tenth Ministerial Conference of the World Trade Organisation, held in Nairobi, Kenya, from 15 to 19 December 2015, was no normal business. It could not have been. One just has to picture the backdrop. When Kenya’s Presi-dent, Uhuru Kenyatta, opened the first ever World Trade Organisation (WTO) Ministerial Conference to be held on African soil, he knew that the Doha De-velopment Agenda (DDA)1 ceremoniously agreed upon in 2001, and of which his country had been an ardent promoter, would be put under the guillotine. So much was made abundantly clear by Michael Froman, the United States of America Trade Representative (USTR), in an op-ed published in the Financial Times just two days prior to the Conference.2 In this piece suggestively entitled ‘We are at the end of the line on the Doha Round of trade talks’, Froman argued that ‘Doha was designed in a different era, for a different era, and much has changed since’, and that ‘it is time for the world to free itself of the strictures of Doha’, before concluding presciently that ‘Nairobi will mark the end of an era’.3

1 ‘World Trade Organisation: The Doha Round’ https://www.wto.org/english/tratop_e/dda_e/dda_e.htm on 25 March 2016.

2 ‘Michael Froman: We are at the end of the line on the Doha Round of trade talks’ Financial Times, 13 December 2015www.ft.com/cms/s/0/4ccf5356-9eaa-11e5-8ce1-f6219b685d74.html on 25 March 2016.

3 ‘Michael Froman: We are at the end of the line on the Doha Round of trade talks’.

* HeadofDepartment,InternationalLawandHumanRights,and,Director,HumanRightsCen-tre, United Nations mandated University for Peace, Costa Rica

Recent developments

Mihir Kanade


It was in this context that Kenyatta’s chosen Chair for the Conference and Kenya’s Cabinet Secretary for Foreign Affairs and International Trade, Amina Mohamed, got down to business. As Mohamed later admitted, the prospects were daunting.4 On the one hand, a mere ‘chairperson’s statement’, instead of a negotiated ministerial declaration, would have signified failure. On the other hand, ‘as the first African chairperson of a WTO Ministerial Conference and the first to be held in Africa, it felt like the metaphoric Atlas carrying the weight of the world and more importantly how it would impact Africa, other parts of the developing world and the global economy’.5

The Conference closed with a Ministerial Declaration6 and the ‘Nairobi Package’7 comprising a series of six Ministerial Decisions on agriculture, cotton and issues related to least developed countries (LDCs). WTO’s Director-General, Roberto Azevêdo, concluded with optimism that, similar to two years ago in Bali, the WTO had once again delivered ‘major, multilaterally-negotiated outcomes’ at Nairobi.8

But, of course, not everyone was enthused. In her closing plenary state-ment, India’s Commerce Minister, Nirmala Sitharaman, expressed ‘disappoint-ment’ at the DDA not being re-affirmed in the Ministerial Declaration.9 In that sense, the agenda set forth by Froman appeared to have fructified. Indeed, an editorial in the Financial Times took precious little time to declare the death-knell for the DDA and the Doha Round itself.10 In its obituary, laden with celebratory overtones, the editorial stated, ‘after a death scene so drawn-out it would have done credit to a Victorian melodrama, the curtain has finally come down on one of the longest-running farces in global policymaking. The so-called Doha round, the programme of multilateral trade talks that started

4 ‘Amina Mohamed: The 10th WTO Ministerial Conference in Nairobi -A successful turning point for the multilateral trading system’ The World Post, 7 January 2016 http://www.huffingtonpost.com/ambassador-amina-mohamed/the-10th-wto-ministerial-_b_8859162.html on 25 March 2016.

5 ‘Amina Mohamed: The 10th WTO Ministerial Conference in Nairobi’.6 World Trade Organisation, Nairobi Ministerial Declaration, WT/MIN (15)/DEC, 19 December 2015.7 World Trade Organisation, Nairobi Package, Tenth WTO Ministerial Conference, 15 to 19 Decem-

ber 2015, https://www.wto.org/english/thewto_e/minist_e/mc10_e/nairobipackage_e.htm on 25 March 2016.

8 ‘World Trade Organisation: DG Azevêdo’s address to the MC10 closing ceremony’ 19 December 2015 https://www.wto.org/english/news_e/spra_e/spra108_e.htm on 25 March 2016.

9 ‘Business World: India disappointed with WTO Declaration at Nairobi meeting’ 20 December 2015 http://businessworld.in/article/India-Disappointed-With-WTO-Declaration-At-Nairobi-Meet-ing-/20-12-2015-89553/ on 25 March 2016.

10 ‘Financial Times: The Doha Round finally dies a merciful death’ 21 December 2015 http://www.ft.com/intl/cms/s/0/9cb1ab9e-a7e2-11e5-955c-1e1d6de94879.html?siteedition=intl on 25 March 2016.

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Chronicles of the Doha Wars: The battle of Nairobi . . .


in 2001, was last week declared dead by WTO members after nearly a decade spent comatose’.11

So, how should the outcome of Nairobi be interpreted? What does it really mean for developing countries and LDCs? Is the DDA dead and buried? More importantly, what do these developments mean for the future of the WTO and of multilateralism in the regulation of trade?

Appraisal of the decisions

Subsidies for farm exports

Probably, the most important outcome of the Conference was a Ministerial Decision on Export Competition, which includes a commitment to eliminate subsidies for farm exports.12 As is well-known, export subsidies are severely det-rimental to the multilateral trading system since they are specifically designed to be trade distorting. This decision is, therefore, a welcome development since it requires developed countries to eliminate export subsidies in agriculture imme-diately (except for some agricultural products). Developing countries have been given until 2018, while LDCs have until 2023, to eliminate export subsidies in agriculture. Under the agreement, developing countries will keep the flexibility to cover marketing and transport costs for agricultural exports until the end of 2023, while LDCs will be able to do so until 2030. In addition, the Decision also includes detailed provisions seeking to limit what benefits agriculture exporters can receive through financial support, rules seeking to ensure that agricultural exporting state trading enterprises do not operate in a manner that circumvents any other disciplines contained in this Decision, and rules to ensure that food aid does not affect domestic production negatively. In this context, DG Azevêdo re-marked in his closing speech that ‘today’s decision tackles the issue once and for all. It removes the distortions that these subsidies cause in agriculture markets, ‘thereby helping to level the playing field for the benefit of farmers and exporters in developing and least-developed countries’.13

11 ‘Financial Times: The Doha Round finally dies a merciful death’.12 World Trade Organisation, Ministerial Decision on Export Competition, (WT/MIN (15)/45), 19 Decem-

ber 2015.13 ‘World Trade Organisation: DG Azevêdo’s address to the MC10 closing ceremony’. Emphasis add-

ed.

Mihir Kanade


Unfortunately, that may not be true. Despite the positive development on the elimination of export subsidies, it is noteworthy that none of the domestic agricultural subsidies have been eliminated by this Decision. Domestic subsidies by developed countries are in fact the most trade-distorting since they result in crop overproduction at artificially cheaper costs, which then get exported to or dumped onto poorer countries at lower-than-market prices, many times driving local farmers out of business and destroying livelihoods. Indeed, it is elimination of these forms of subsidies by the developed countries which has been at the forefront of issues raised by the poorer countries in the DDA, especially since the European Union (EU) has already eliminated export subsidies. In that sense, the agreement on elimination of export subsidies does not really address the core concerns of developing countries and LDCs; it merely puts a tighter lid on already existing practices.

Public stockholding for food security purposes

The ability to ensure public stockholding for food security purposes has been an important element of the national policy space which developing coun-tries and LDCs have been fighting for at the WTO. At the insistence of India, the Bali Ministerial Decision of 2013 permitted developing countries to continue food stockpile programmes, which would otherwise risk being in breach of the WTO’s domestic subsidy cap, until a permanent solution is found by the 11th Ministerial Conference in 2017.14 At Nairobi, Ministers adopted a Ministerial De-cision on Public Stockholding for Food Security Purposes reaffirming the Bali Decision and further requiring members to ‘engage constructively to negotiate and make all concerted efforts to agree and adopt a permanent solution on the issue of public stockholding for food security purposes’.15 In pragmatic terms, the only decision adopted on public stockpiling was to adopt a decision later.

Special safeguard mechanism for developing country members

Another important area of concern for developing countries and LDCs has been the ability to protect domestic agriculture producers in times of un-

14 ‘World Trade Organisation: The Bali decision on stockholding for food security in developing countries’ 27 November 2014 https://www.wto.org/english/tratop_e/agric_e/factsheet_agng_e.htm#whatwasagreedinbali on 25 March 2016.

15 World Trade Organisation, Ministerial Decision on Public Stockholding for Food Security Purposes, (WT/MIN (15)/44), 19 December 2015.

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predictable import surges from developed countries. In that respect, the Nai-robi Package contains a Ministerial Decision on a Special Safeguard Mechanism (SSM) for Developing Countries.16 It reaffirms Paragraph 7 of the Hong Kong Ministerial Declaration recognising that developing members will have the right to temporarily increase tariffs in the face of import surges by using an SSM. The Decision also states that members will pursue negotiations on an SSM for devel-oping country members in dedicated sessions of the Committee on Agriculture in Special Session (‘CoA SS’).

In the words of one commentator, this Decision is ‘a concrete commitment to have meetings to decide on more meetings with every constructive proposal of the developing world likely to be rejected by the rich countries in those meet-ings’.17

Cotton

For a long time now, the four major cotton-producing West African coun-tries, Benin, Burkina Faso, Chad and Mali (also known as the Cotton 4 or C4) have been demanding an end to the massive domestic subsidies granted by the United States of America (US), which have resulted in loss of livelihoods for thousands of cotton producers in the C4, who cannot benefit from similar sub-sidies from their impoverished governments. In this context, the Nairobi Con-ference adopted a Ministerial Decision on Cotton,18 which stresses the vital im-portance of the cotton sector to LDCs. A closer look at the Decision, however, reveals progress only on peripheral issues rather than on the substantive bone of contention.

The Decision includes provisions with respect to market access, domes-tic support and export competition. On the first element of market access, the Decision calls for cotton from LDCs to be given duty-free and quota-free access to the markets of developed countries from 1 January 2016. Develop-ing countries declaring that they are able to do so may also give such market access. On the third element of export competition for cotton, the Decision requires developed countries to prohibit export subsidies for cotton with im-

16 World Trade Organisation, Ministerial Decision on Special Safeguard Mechanism for Developing Country Mem-bers, (WT/MIN (15)/43), 19 December 2015.

17 ‘Biraj Patnaik: How Sitharaman served up India instead of using WTO high table to block US agen-da’ The Wire, 25 December 2015 http://thewire.in/2015/12/25/the-ugly-american-and-compliant-indian-17894/ on 25 March 2016.

18 World Trade Organisation, Ministerial Decision on Cotton, (WT/MIN (15)/46), 19 December 2015.

Mihir Kanade


mediate effect. Developing countries are required to do so no later than 1 January 2017.

It is, however, the agreement, or lack thereof, on the second element – domestic support – which puts a damper on any progress on the first and third elements described above. In the Ministerial Decision, members merely ‘ac-knowledge the efforts made by some Members to reform their domestic cotton policies and which may contribute to the objective of reduction of the trade distorting domestic subsidies for cotton production’.19 They further ‘emphasise however that some more efforts remain to be made and that these positive steps are not a substitute for the attainment of our objective’.20 While ensuring market access for cotton products and eliminating export subsidies is a welcome step, lack of an agreement on the elimination of domestic subsidies on cotton, par-ticularly by the US, continues to be the main stumbling block in addressing the issue. What does this mean for the C4? As has been poignantly pointed out by Patnaik and Wise:

the C4 can expect to see continued US cotton subsidies estimated at $1.5 billion per year, which will increase US exports 29% and suppress cotton prices 7%. This will cost the C4 an estimated $80 million per year in lost cotton revenues. That is more than 300 times the gains last year from market access under US Africa Growth and Opportunity Act, which totalled just $264,000.21

Decisions specifically to benefit LDCs

The Ministerial Conference also adopted two separate decisions specifically aimed at benefitting LDCs. The first decision on Preferential Rules of Origin for LDCs22 expands upon the Bali Ministerial Decision of 2013, which had incor-porated a set of multilaterally agreed guidelines to help make it easier for LDC exports to qualify for preferential market access. The Nairobi Decision goes fur-ther and provides more detailed directions on specific issues such as methods for determining when a product qualifies as ‘made in an LDC’, and when inputs from other sources can be ‘cumulated’ into the consideration of origin. Many of these provisions are, however, couched in non-binding terms. For instance, the

19 World Trade Organisation, Ministerial Decision on Cotton, para 7.20 World Trade Organisation, Ministerial Decision on Cotton, para 8.21 ‘Biraj Patnaik and Timothy Wise: Don’t buy the spin: The WTO talks in Nairobi ended badly and

India will pay a price’ Scroll.in, 24 December 2015, http://scroll.in/article/777647/dont-buy-the-spin-the-wto-talks-in-nairobi-ended-badly-and-india-will-pay-a-price on 25 March 2016.

22 World Trade Organisation, Ministerial Decision on Preferential Rules of Origin for Least-Developed Countries, (WT/MIN (15)/47), 19 December 2015.

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Decision calls on preference-granting members to merely consider allowing the use of non-originating materials up to 75% of the final value of the product, and to consider deduction of any costs associated with the transportation and insur-ance of inputs from other countries to LDCs.

The second decision specific to LDCs extends the current waiver period (agreed upon in 2011 for a period of 15 years) under which non-LDC WTO members may grant preferential treatment to LDC services and service suppli-ers.23 The period now stands extended until 2030. Again, none of this, including the very grant of preferential treatment to LDCs in services, is binding on non-LDC members. Indeed, the main reason why the extension of four years was agreed upon was merely ‘due to the extended period between the adoption of the waiver in December 2011 and the notification of preferences in 2015’.24 In other words, this decision does not add any benefits for the LDCs; it merely ensures that the benefits to be accrued under the 2011 decision are not undone because of delays in notifications of preferential treatment by non-LDC members.

Information technology agreement

The Conference also resulted in an agreement between members represent-ing major exporters of information technology (IT) products on a timetable for eliminating tariffs on various products.25 The benefits of this agreement will be enjoyed by all WTO members who will get duty-free access to the markets of the members who eliminate tariffs on these products. As part of the deal, two-thirds of tariff lines were to be fully eliminated by 1 July 2016, and complete elimina-tion of all tariff lines is expected by 2019.

While this will be beneficial for technology-exporting countries, it may in reality not affect most of the countries at the forefront of the DDA. This is also because the agreement applies only to countries which opt in, and most likely, only those who export technology will do so. Thus, indeed, only 22 countries opted in, which did not include any African country.

23 World Trade Organisation, Ministerial Decision on Implementation of Preferential Treatment in Favour of Services and Service Suppliers of Least Developed Countries and Increasing LDC Participation in Services Trade, (WT/MIN(15)/48), 19 December 2015.

24 World Trade Organisation, Ministerial Decision on Implementation of Preferential Treatment in Favour of Services, para 1.1.

25 World Trade Organisation, Ministerial Decision on the Expansion of Trade in Information Technology Prod-ucts, (WT/MIN (15)/25), 16 December 2015.

Mihir Kanade


The central role of WTO in global trade talks and the fate of the DDA

This aspect is by far the most significant development to emerge from the Nairobi Conference. While it may appear on first blush that the role of WTO in global trade talks may be distinct from the consideration of the specific issues under DDA, they turned out to be intricately connected, nay, almost cotermi-nous. Indeed, in his op-ed forewarning about the fate of DDA, Froman directly connected the deadlock in the Doha Round with the emergence of preferen-tial trade agreements, ironically led by his own country. He reminded everyone that the US had ‘recently concluded the Trans-Pacific Partnership, which raises standards and tackles emerging issues across nearly 40 per cent of the global economy’ and that ‘the US and the EU are moving forward with the world’s largest bilateral agreement’.26 With these regional trade agreements (RTAs) led by the US put forth as proof for the fact that ‘trade initiatives outside the WTO have become the norm’, Froman then goes on to argue that the Doha Round must be buried if multilateralism has to have a chance of succeeding.27 The best description of this stand is provided by Chakravarthi Raghavan, who is quoted as stating that ‘the US/EU arguments to abandon Doha because of the dead-lock reminded him of the story of a son convicted for murdering his parents to get at their property who asks the court for leniency on the grounds that he was an orphan!’28

Regretfully, while the Nairobi Ministerial Declaration insisted on the ‘pre-eminence of WTO as the global forum for trade rules setting and governance’29 and on the ‘need to ensure that RTAs remain complementary to, not a substitute for, the multilateral trading system’,30 it refrained from reaffirming the DDA and its mandate. The Declaration, in fact, acknowledged that members ‘have differ-ent views’ on how to address the future of the Doha Round negotiations, and that while many members reaffirm the DDA, ‘other Members do not reaffirm the Doha mandates, as they believe new approaches are necessary to achieve meaningful outcomes in multilateral negotiations’.31 At the same time, the Dec-laration loosened the lid on the question of whether the WTO should consider new issues beyond those contained in the DDA, even without resolving those first. Unsurprisingly, a compromise arrangement was arrived at, which included

26 ‘Michael Froman: We are at the end of the line on the Doha Round of trade talks’.27 ‘Michael Froman: We are at the end of the line on the Doha Round of trade talks’.28 Patnaik, ‘How Sitharaman served up India instead of using WTO high table to block US Agenda’.29 World Trade Organisation, Nairobi Ministerial Declaration, para 3.30 World Trade Organisation, Nairobi Ministerial Declaration, para 28.31 World Trade Organisation, Nairobi Ministerial Declaration, para 30.

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an acceptance that WTO members may raise new issues at the WTO: however, a consensus would be required for launching these new negotiations.32

There are two implications of this Declaration. Firstly, it has opened up the opportunity for developed countries to place new issues relating to fur-ther liberalisation on the agenda, even if the Doha issues are not negotiated upfront. Of course, developing countries will need to agree to negotiate these new issues, but the Declaration has now officially provided developed countries with the legal justification for elevating non-Doha issues to the same level as Doha issues. Secondly, and more importantly, it has provided the opportunity for developed countries and their policy think-tanks (including media outlets such as the Financial Times) to claim that DDA is dead and buried, and it is time now to move on to further liberalisation. Developing countries and LDCs will need to put up a collective front in order to ensure that the DDA and its issues are not relegated to the back-burner. The Declaration contains some language which may yet salvage the situation. Despite the concessions on new issues, it states that ‘nevertheless, there remains a strong commitment of all members to advance negotiations on the remaining Doha issues’ and that ‘this includes ad-vancing work in all three pillars of agriculture, namely domestic support, market access and export competition, as well as non-agriculture market access, servic-es, development, Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and rules’.33

Final word

It is worthwhile highlighting that the DDA did not give birth to the devel-opment mandate of the WTO; the International Agreement Establishing the WTO itself did. Indeed, its Preamble explicitly mentions sustainable develop-ment as an institutional objective of the WTO.34 The WTO’s Constitution clari-fies that free trade is not the end, but is only a means to achieve an end – that end being sustainable development. The adoption of the ambitious 2030 Agenda and the accompanying 17 Sustainable Development Goals (SDGs) by world leaders in September 2015 has, for the first time, provided shape and texture to this insti-tutional objective of the WTO. SDG 17.1, in particular, requires the promotion

32 World Trade Organisation, Nairobi Ministerial Declaration, para 34.33 World Trade Organisation, Nairobi Ministerial Declaration, para 31.34 Preamble, para 1, Agreement Establishing the World Trade Organisation, 15 April 1994, 1867 UNTS 154,

33 ILM 1144 (1994).

Mihir Kanade


of ‘a universal, rules-based, open, non-discriminatory and equitable multilateral trading system under the WTO, including through the conclusion of negotia-tions under its DDA’.35 If the conclusion of negotiations under DDA is what the world leaders agreed is required for sustainable development, it is clear that the Nairobi Declaration, adopted just three months later, cannot be interpreted to mean that the DDA is dead and buried, as the lip sync-ing of the Froman song by the Financial Times would have us believe. Developing countries and LDCs must remain vigilant against such attempts; for it would be impossible to later exhume and reconstruct the skeleton of the DDA limb by limb.

35 SDG 17.1, UNGA, Transforming our world: The 2030 agenda for sustainable development, A/RES/70/1, 25 September 2015.


The ‘great escape’1: In pursuit of President Al Bashir in South AfricaJerusha Asin*

I told him that it would be a bad idea – that an arrest warrant would not be productive. I told him not to go after the top. It limits the options of how we can move forward. He said: “my job’s easier than yours. I’m like a train moving down the track and I just follow the evidence.” That’s how he characterized it. I said “I’m afraid you might hurt the institution you are trying to build.” We agreed to disagree.2

Introduction

The above excerpt is reportedly an exchange between the first Chief Pros-ecutor of the International Criminal Court(‘the Court’ or ‘ICC’) Luis Moreno Ocampo, and a US special envoy to Sudan, Richard Williamson, which occurred at some indeterminate time in 2008.3 By this time, the Prosecutor had shifted his prosecutorial strategy with regard to the situation in Sudan by deciding to pursue the serving President of Sudan, Omar al Bashir, whereas before, his strategy had been to request the Pre-Trial Chamber to issue summons for persons deemed to be mid-level individuals in the Khartoum government.4 Briefly, to contextualise this exchange, on 31 March 2005, the United Nations Security Council (UNSC) referred the situation in Darfur to the Prosecutor of the Court.5 Acting on that referral, the Prosecutor initiated investigations into the situation in Darfur begin-ning June 2005. On 14 July 2008, the Prosecutor filed an application requesting the Pre-Trial Chamber to issue a warrant of arrest against President Bashir, which

1 Greef P, ‘Anatomy of Al-Bashir’s great escape, (Daily Maverick, 29 June 2015) <http://www.dailymaverick.co.za/opinionista/2015-06-29-anatomy-of-al-bashirs-great-escape/#.VexpqBHBzGc>last accessed on 20 August 2016.

2 Bosco D, Rough justice: The International Criminal Court in a world of power politics, Oxford University Press, 2014, 143.

3 Bosco, Rough justice, 143.4 Schiff B, Building the International Criminal Court, Cambridge University Press, 2008, 241.5 UNSC S/RES/1593(2005).

* LLB(Moi)LLM(Exeter)AdvocateoftheHighCourtofKenya,AssistantLectureratStrathmore Law School.

Jerusha Asin


was granted on 4 March 2009.6 Subsequently, warrants of arrest were issued for Al Bashir on 4 March 2009 and on 12 July 2010,7 with the second warrant being issued to reflect the inclusion of the charge of genocide in the indictment.8

It is doubtful whether either the Prosecution or the Court for that matter could have foreseen, six years later, the virulence of the diplomatic firestorm that would be unleashed by the issuance of the said arrest warrants. The warrants would go on to trigger a ferocious fallout between the African Union (AU) and some member states against the Court with regard to requests for cooperation in executing the warrants9 and the same hostilities being replicated between the AU and the UNSC.10 Elsewhere, I have argued that the current state of affairs wit-nessed when analysing state cooperation with the Court, or non-cooperation for that matter, shows that the Rome Statute11 does not itself supply the motivation for states to cooperate with the Court because not only does the ‘Court operate in a world in which power matters’12 but that unlike Frankenstein’s monster, the Court was neither crafted nor designed to escape its creators.13

6 Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3 (4 March 2009).

7 Prosecutor v Bashir (Warrant of Arrest for Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09 (4 March 2009).

8 Prosecutor v Bashir (Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09 91 (2 July 2010).

9 Prosecutor v. Al Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (including Corrigendum and the Annex to the Corrigendum), Case No. ICC-02/05-01/09-139 (ICC PTC I, 12 December 2011); Prosecutor v. Al Bashir, Order requesting submissions from the Republic of South Africa for purposes of proceedings under Article 87(7) of the Rome Statute, ICC-02/05-01/09-247(ICC PTC II, 4 September 2015); Prosecutor v. Al Bashir, Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya, Case No. ICC-02/05-01/09-107 (ICC PTC I, 27 August 2010); Prosecutor v. Al Bashir, Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad, ICC-02/05-01/09-109 (ICC PTC I, 27 August 2010): Prosecutor v. Al Bashir, Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti, ICC-02/05-01/09-129 (ICC PTC I, 12 May 2011). See also ICC-ASP, ‘Report of the Bureau on non-cooperation’ (7 November 2013) ICC-ASP/12/34, para 22-24 <http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-34-ENG.pdf> on 1 January 2014.

10 See, AU, Decision on Africa’s Relationship with the International Criminal Court (12 October 2013) Ext/Assembly/AU/Dec. 1 (October 2013) <http://www.iccnow.org/documents/Ext_Assembly_AU_Dec_Decl_12 Oct 2013.pdf> on 19 August 2014; Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC) of 1-3 July 2009, Doc. As-sembly/AU/13 (XIII).

11 Rome Statute of the International Criminal Court, concluded 17 July 1998, 2187 UNTS 90 (herein-after ‘Rome Statute’).

12 Bosco, Rough justice, 1, 189.13 See , Asin J, ‘Pursuing Al Bashir in South Africa: Between ‘apology and utopia’ in Van der Merwe J,

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The ‘great escape’: In pursuit of President Al Bashir in South Africa


For present purposes, this brief aims to parse what has been described as ‘post apartheid South Africa’s most contentious and polarising diplomatic inci-dent’14 the visit by President Bashir to the 24th Summit of the AU in Johannes-burg, South Africa in June 2015 against the subsequent judgments by the High Court and the Supreme Court of Appeal of South Africa that the South African authorities breached domestic legislation and international law by failing to arrest and surrender President Bashir to the ICC.15

This brief eventually draws from an ‘instrumentalist optic’ that views in-ternational law as a tool designed by and reproducing state interests16 in contrast to the linear legalist methodology of maintaining a rigid distinction between law and politics and insisting that state behaviour will conform to legal rules even when this is nakedly contrary to state interests.17 In this manner, the brief hopes to highlight the blind-spots caused in our understanding and analysis of state cooperation or otherwise with the Court when we fail to give proper premium to the political provenance of the law.18 This is particularly the case when we consider that the Court, by reference to an image invoked by Antonio Cassese, is a giant without limbs, meaning that the Court is entirely dependent on state cooperation in order to execute its mandate. In turn, this dependence on state cooperation without any form of enforcement mechanism in the Rome Statute means that state cooperation with the Court is contingent on the prerogatives of those states called upon to assist the Court.19

and Kemp G(eds), International criminal justice in Africa: Issues, challenges and prospects, Strathmore Uni-versity Press, 2016, 6.

14 Mogotsi I, “Sudanese President Omar al Bashir, the Sandton African Union (AU) summit and the International Criminal Court: Diplomacy and international legality- The blessings and bur-dens of South Africa’s leadership of Africa” Centre for Economic Diplomacy in Africa, 19 June 2015<https://centreforeconomicdiplomacy.wordpress.com/2015/06/19/president-omar-al-bashir-the-sandton-african-union-au-summit-and-the-international-criminal-court-icc-diplomacy-internationality-legality-and-the-burdens-of-south-africas-leadership-of-africa/> on 20 August 2016.

15 The Minister of Justice and Constitutional Development v The Southern African Litigation Centre(867/15)[2016] ZASCA (15 March 2016) (hereinafter Supreme Court decision).

16 Keohane R, ‘International relations and international law: Two optics’ (1997) 38 Harvard International Law Journal, 487. See also, Schiff, Building the International Criminal Court, 3 on the ‘diplomatic bargains, political interests and compromises enacted into the Rome Statue during the Rome Conference.’

17 Compare, Koskenniemi M, From apology to utopia: The structure of international legal argument- Reissue with new epilogue, Cambridge University Press, 2005, 17-18. See also, Shklar J, Legalism: law, morals and politi-cal trials, Harvard University Press, 1986, 123.

18 See, Shklar, Legalism; Schabas W, Unimaginable atrocities: Justice, politics and rights at the war crimes tribunals, OUP 2012, 91; Jorgensen M, ‘American foreign policy ideology and the rule of international law: Con-testing power through the International Criminal Court’ (DPhil thesis, University of Sydney 2015).

19 Asin, ‘Pursuing Al Bashir in South Africa,’ 18.

Jerusha Asin


Because the dramatic events of the Bashir visit to South Africa in 2015 are reminiscent of a play unfolding across the South African stage with a global au-dience, I will employ the literary device of a play structured into acts as a frame-work for my consideration of the different phases of South African interaction with the Court. The prologue therefore outlines the supportive phase of South African interaction with the Court. The first act discusses growing disenchant-ment with the Court as illustrated by the debacle of President’s Bashir’s hasty de-parture from South Africa in June 2015 and the epilogue contemplates the future of international criminal law in light of threats by former staunch supporters of the Court such as South Africa to withdraw from the Rome Statute.20

Prologue – Innocence

By all accounts, South Africa was a model and ‘well-respected global citizen’ whose Judiciary has a reputable track record for upholding human rights and the rule of law. With regard to the ICC and the heady, early days before the Rome Conference, South Africa’s commitment to the process coalesced in the form of the South African Development Community(SADC) which met in Septem-ber 1997 to discuss negotiation strategies at the Rome Conference and to agree on a common position.21 The participants at this meeting agreed on a set of principles that was subsequently sent to their respective ministers of justice and attorneys-general for endorsement.22 It is well worth noting that a key element of these principles was that there should be the full cooperation of all states with the Court at all stages of the proceedings.23 On the basis of these principles, SADC ministers of justice and attorneys-general issued a common statement that formed the basis of their negotiations at Rome. The SADC common posi-tion mirrored that of the ‘like-minded caucus’ in Rome that canvassed for an independent prosecutor unshackled from the control of the UNSC.24 Therefore, continentally and beyond, South Africa was a strong driver for an independent Court. Accordingly, it was no surprise that it ratified the Rome Statute on 27 No-vember 2000.25 Thereafter, through an interdepartmental committee established under the auspices of the Department of Justice and Constitutional Develop-

20 England A, “SA reviews ICC membership in the wake of Bashir storm” Financial Times, 25 June 2016.

21 Du Plessis M, The International Criminal Court that Africa wants, Institute for Security Studies, 2010, 6.22 Du Plessis, The International Criminal Court that Africa wants, 7.23 Du Plessis, The International Criminal Court that Africa wants, 7.24 Du Plessis, The International Criminal Court that Africa wants, 7.25 Coalition for the International Criminal Court, ‘2013 status of the Rome Statute around the world’

25 <http://www.iccnow.org/documents/RomeStatuteUpdate_2013_web.pdf>on 14 July 2015.

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ment, South Africa drafted and enacted the Implementation of the Rome Statute of the International Criminal Court Act No. 27 of 2002 (Implementation Act) to which the Rome Statute was annexed.

The supportive relationship between South Africa and the Court continued even at the height of an aggressive US diplomatic campaign against the Court, in which Court officials feared that ‘this baby was about to be born but Mr Bolton and his friends are on the warpath to kill it.’26 US opposition to the Court reached its zenith under the Bush Administration when the perception of a loophole in the Statute prohibiting the surrender of a person to the Court in contravention of international agreements27 led to the US concluding bilateral immunity or ‘non-surrender agreements’ prohibiting the transfer of US citizens and soldiers to the Court.28 In the case of South Africa, the US imposed a deadline of 30 June 2003 by which the immunity agreement was to be concluded, failure to which US military aid to South Africa was to be suspended.29 On 1 July 2003, South Africa was one of 35 states blacklisted by the US as had been promised and had to forfeit USD7.2 million in military aid, because of South Africa’s ‘commitment to the humanitarian objectives of the ICC and to its international obligations.’30

Even in the face of the implosion of the relationship between AU member states and the Court precipitated by the in(famous) AU resolution passed in Sirte in 2009 asking states not to cooperate with the Court with regard to arrest war-rants issued for serving heads of state,31 South Africa’s voice was urging reason. Dire Tladi has observed that it was due to the South African position that ob-ligations under the Rome Statute could not simply be ignored that a caveat was issued to the general call for non-cooperation of African states urging them to balance, where applicable, their obligations to the AU with their obligations to the ICC.32 Though South Africa has neither been coy nor shy about questioning some of the practices of the Court, on the whole, it has been instrumental in lowering anti-ICC rhetoric on the continent.33

26 Bosco, Rough justice, 81.27 Article 98(2), Rome Statute.28 Kelley J, ‘Who keeps international commitments and why? The International Criminal Court and

bilateral non-surrender agreements’ APSR (2007) 101(3) 573, 580.29 Du Plessis, The International Criminal Court that Africa wants, 7.30 Du Plessis, The International Criminal Court that Africa wants.31 Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal

Court (ICC) of 1-3 July 2009, Doc. Assembly/AU/13(XIII).32 Tladi D, ‘The duty on South Africa to arrest and surrender President Al-Bashir under South African

and international Law’ Journal of International Criminal Justice(2015), 4.33 Tladi, ‘South Africa’s duty to arrest and surrender Al Bashir,’ 4.

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In that regard, up until June 2015, the method employed by South Africa to avoid a conflict between its AU obligations and as a state party to the Rome Statute in relation to the arrest warrant issued by the Court against President Bashir had been rather ingenious. For the inauguration of President Zuma of South Africa in 2010,34 the World Cup in 2010 as well as the funeral of the late President Mandela, President Bashir was invited but notified that he would be arrested pursuant to the warrants if he attended,35 which was in effect an invita-tion to desist from honouring the formal invitation to attend these important events.

This clever circumvention of conflict would however come to a head with the decision by President Bashir to attend the AU Summit in South Africa in June 2015, reportedly against the backdrop of assurances by South African authorities that on the occasion of the AU summit in Johannesburg, he would not be ar-rested.36 The decision by the South African government in January 201537 to host the AU summit would place South Africa on a collision course with the Court38 and is important when contrasted with that of Malawi, a state party to the Rome Statute, which declined to host the AU summit in 2012 because the AU insisted on President Bashir attending the Summit irrespective of the arrest warrant.39 However, Malawi based its decision on economic considerations because the US had undertaken to withhold about USD350 million economic aid to Malawi for a previous decision to host President Bashir in Malawi.40

In any event, the invitation to President Bashir to attend the AU summit and his acceptance thereof set the stage for animpasse between the executive authorities and the Judiciary in South Africa.

34 Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and others.35 (27740/2015) High Court of South Africa, 24 June 2015 (High Court decision). Supreme Court

Decision, para 104.36 See, “Media consider ICC ‘dead’ after Bashir exit” BBC16 June 2015<http://www.bbc.com/news/

world-africa-33148906> on 31 August 2016 ; “Zuma assured AU that Al Bashir would not be arrest-ed - Mugabe, News24 16 June 2015 <http://www.news24.com/SouthAfrica/News/Zuma-assured-AU-al-Bashir-would-not-be-arrested-Mugabe-20150616> on 31 August 2016.

37 High Court decision, para 13.38 Tladi, ‘South Africa’s duty to arrest and surrender Al Bashir,’ 3.39 ‘Malawi gives up hosting AU summit over pressure to host Sudan’s President’ Sudan Tribune8 June

2012, <http://www.sudantribune.com/spip.php?article42868>; ‘Sudan’s Omar al Bashir not wel-come for Malawi’s Banda’ BBC 8 June 2012<http://www.bbc.com/news/world-africa-17963368> on 31 August 2016.

40 See “Malawi President not to attend AU summit” The Herald 16 June 2012 <http://www.herald.co.zw/malawi-president-not-to-attend-au-summit/> on 31 August 2016.

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Act I, Scene I–The Fall

A chronology of ‘the great escape’

In January 2015, when South Africa decided to host the AU Summit, it was required to enter into a hosting agreement with the AU Commission.41Article VIII of this host agreement specifically provided for privileges and immunities, with clause 1 thereof according the members and staff of the Commission as well as delegates and other representatives the privileges and immunities outlined in the General Convention on the Privileges and Immunities of the Organisa-tion of African Unity.42 The responsible minister therefore issued a government gazette notice number 38860 dated 5 June 2015, publishing Article VIII of the host agreement and incorporating the agreement between South Africa and the Commission of the African Union as domestic law in South Africa.43

Thereafter, President Bashir confirmed his attendance at the Summit to the South African government and requested that he be granted the necessary privileges and immunities as provided in Article VIII of the host agreement.44 Aware of the arrest warrants issued by the ICC, the South African Cabinet collectively decided that as the hosting country, South Africa was first and fore-most obliged to uphold and protect the inviolability of President Bashir in ac-cordance with AU terms and conditions and to not arrest him in terms of the ICC arrest warrants while attending the AU Summit.45 In the estimation of the government, the promulgation of the notice by responsible minister, which pro-vided for the immunity of heads of states of AU member states, granted South Africa reprieve from executing the ICC arrest warrants.46 No timeline is given for the said Cabinet decisions but as the date of the government notice is 5 June 2015, we may safely suppose that as at date, the Cabinet had made the decision that South Africa had been granted a reprieve from its obligation to execute the ICC arrest warrants.

Therefore, as at 28 May 2015 when the Registrar of the ICC sent a note verbale reminding SA to cooperate with the ICC and arrest President Bashir, the Cabinet was in active deliberation over the issue of immunity for President Ba-

41 High Court decision, para 13.42 High Court decision, para 15.43 High Court decision, para 17.44 High Court decision, para 19.45 High Court decision, para 22.46 High Court decision, para 22.

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shir. The SA government responded to the said note verbale by the Registrar in Note Verbale No 039/2015 of 12 June 2015, requesting to consult the Court un-der Article 97.47 The argument of the Respondents(SA authorities) at this point was that Cabinet had taken a decision to grant President Bashir immunity from arrest. It is therefore not an absurd extrapolation to argue that by the time the South African government was requesting consultation with the ICC on 12 June 2015, a Cabinet decision had already been reached on or before 5 June 2015 the terms of which were that President Bashir was not to be arrested when he en-tered South African territory for the summit.

On 13 June 2015, the Prosecutor of the ICC requested the Court to issue an order clarifying that South Africa was under an obligation to arrest and sur-render President Bashir,48 a request which the Pre-Trial Chamber granted.49

On Sunday, 14 June 2015, the Southern Africa Litigation Centre initiated proceedings before the High Court at Gauteng for orders that the failure of South African authorities to take steps to arrest or detain President Bashir was inconsistent with the Constitution and therefore invalid. At 15:00 on 14 June 2015, a Judge issued an adjournment of the proceedings before the High Court to the next day on Monday 15 June 2015 at 11:30 am but issued an order prohib-iting President Bashir from leaving South Africa until a final order was issued. The Judge also enjoined South African authorities to take all necessary steps to prevent him from doing so. Further, any Answering Affidavits were to be filed by the Respondents by 9 am on 15 June 2015, with the Applicant replying by 10 am on the same day.50

It is imperative at this point to belabour the point that by the evening of 14 June 2015, there were two Court decisions from both the Pre-trial Chamber of the ICC as well as the South African High Court, enjoining South Africa to take all necessary steps to prevent Bashir from leaving the territory and to ar-rest him and initiate proceedings for his surrender to the ICC. However, on the same evening of 14 June 2015, the Sudanese Presidential Jet was moved from the Oliver Tambo International Airport to the Airforce Base at Waterkloof.51 On the

47 Prosecutor v Omar Hassan Ahmad Al Bashir, Submission from the Republic of South Africa in Re-sponse to the Order requesting a submission dated 4 September 2015 for the purposes of proceed-ings under Article 87(7) of the Rome Statute, ICC-02/05-01/09-248-AnxI (2 October 2015) para 1.2.

48 Prosecutor v Omar Hassan Ahmad Al Bashir, Submission from the Republic of South Africa.49 Prosecutor v Omar Hassan Ahmad Al Bashir, Submission from the Republic of South Africa, para 14.50 High Court decision, para 6.51 Grieff P ‘Anatomy of Al-Bashir’s great escape’ Daily Maverick, 29 June 2015.

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same date, President Bashir and his entire entourage moved from the Sandton Conference Centre to the Waterkloof Airbase.52

On 15 June 2015, the authorities filed the Answering Affidavit at 11:25 am instead of at 0900 without tendering reasons for the delay. During the en-tire hearing on 15 June 2015, Counsel for the South African authorities assured the Court that President Bashir was still in the country, which fact the Court considered fundamental to its exercise of jurisdiction, and despite the Court’s misgivings on media reports trickling in that President Bashir had already left the country.53 On the basis of these assurances, on Monday 15 June 2015 at 15:00 hours, the High Court insured interim orders that the South African authorities were compelled to take all reasonable steps to prepare to arrest President Bashir and to detain him.54 It was only at the point of the Court handing down its in-terim orders that Counsel for the South African authorities informed the Court that President Bashir had left the country, despite the explicit orders of 14 June 2015.55 The Court would later determine that for the plane of President Bashir to have landed in Sudan by late afternoon, it had departed the Waterkloof Air Base at around noon on 15 June 2015.56

The conceptual narrowness of legalism as an ideology in international criminal law

The above account illustrates the narrowness of legalism as an ideology permeating international criminal law and the frailties of Rome Statute state co-operation regime as nothing else can. Legalism is the rule-centred approach that eschews the role of politics in any legal activity.57 In the present context, it refers to a conception of global norms that seeks the separation of law from politics for the promotion of human rights.58 Judith Shklar has taken the view that the pursuit of justice as the highest form of legalism finds expression in specifically legal institutions of which courts like the ICC are the most characteristic.59 The

52 High Court decision, para 36.53 High Court decision, para 8.54 High Court decision, para 2.55 High Court decision, para 9.56 High Court decision, para 36.57 Shklar, Legalism: Law, morals and political trials, 158 Rodman K, ‘Justice as a dialogue between law and politics: embedding the International Criminal

Court within conflict management and peace building’ Journal of International Criminal Justice (2014) 439.

59 Shklar, Legalism: Law, morals and political trials,118.

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policy of justice is to intensify legalism in political life by promoting the institu-tionalisation of the administration of justice such that as many social conflicts are resolved by judicial means as is possible.60 At its most extreme, all political issues are resolved by court-like procedures.61

The fallacy of this position however is that justice is not the only social virtue in the continuum of international life, where there is a plurality of actors. Therefore policies of justice are constantly compromised against other social demands, which include considerations of values other than justice. In the pre-sent instance, the fact of the formal existence of the Rome Statute would lead a legalist to insist on having attained a global, if not a universal, legal order to oblige states to cooperate with the Court by the rule of law. However, pursuant to Judith Shklar’s theory, there is a need for political reality to complete the for-mal perfection of the law, in relative terms.62 This is the point at which the ‘reality deficit’63 in terms of the state cooperation regime under the Rome Statute checks in. Because by reference to legalism, we assume that all politics is subordinated to the judicial process. To maintain the distinction between legal order and politi-cal chaos, it is necessary to define the law out of politics and create an image of politics as a species of war against the law.64 Time and again, the choice of state parties in relation to requests for cooperation by the ICC with regard to the arrest warrant against President Bashir shows the privileging of other mores of social morality above the legal obligation to cooperate with the Court. This is why for instance, before the High Court, South Africa argued that the decision of the Cabinet to grant President Bashir immunity from arrest in effect ‘trumped’ the government’s duty to arrest the President on South African soil in terms of the two arrest warrants issued by the ICC and obligations under the Implementation Act.

However, this is not to denigrate the value of legalistic ethics or of institu-tions with a legalistic underpinning like the ICC. The Rome Statute is after all a fait accompli. Shklar profoundly stated that ‘to show that justice has its practical and ideological limits is not to slight it.’65 What this means is that the place of jus-

60 Shklar, 118.61 Shklar, 118.62 Shklar, 136. 63 Slaughter A, and others, ‘International law and international relations theory and a new generation

of interdisciplinary scholarship’ American Journal of International Law 92 (1998) (3) 367, 371 cited in Asin, ‘Pursuing Al Bashir in South Africa,’ 9.

64 Shklar, 122.65 Shklar 122.

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tice, in the sense of securing state cooperation with the ICC, will not be secured above the international political universe, but in its very midst,66 with all the prac-tical challenges denoted by this statement, as is evident in the South African case.

Turning back to the judgment, the High Court went on to find that the reliance by South African authorities on the different agreements touching on immunity was ill-advised and unfounded and could not possibly trump the Rome Statute and the subsequent Implementation Act.67 The Court was categorical that the Implementation Act had legislative authority having been passed by Parlia-ment and could not be displaced by a notice promulgated by a Minister or by a Cabinet decision.68 Not surprisingly, the High Court concluded that its order dated 14 June 2015 had not been complied with and noted that when State or-gans and officials fail to abide by Court orders, ‘the democratic edifice crum-bles stone-by-stone.’69 If we are persuaded by Shklar’s theory, this statement by the Court would be the apogee of legalism, where all situations of conflict are viewed through the prism of a lawsuit.70 It is however difficult to argue against legalism as a means of ordering world society, as for instance, through the Rome Statute and its stated intent to ensure that the most serious crimes of concern to the international community as a whole must not go unpunished.71 Such crimes must be sanctioned through just action and the application of rules impartially to attain a just result without arbitrariness. However, in the context of state co-operation, it becomes apparent that a legal obligation to cooperate does not nec-essarily equate to a political commitment.72 This has grave ramifications for the ICC as will be discussed in the next scene.

Act I, Scene II- Disenchantment

Immediately upon the issuance of the judgment by the High Court on 23 June 2015 finding that South African authorities had a positive duty to arrest President Al Bashir, the Respondent authorities sought leave to appeal.

66 Shklar, 123.67 High Court decision, para 31.68 High Court decision, para 31.69 High Court decision , para 37.270 Shklar, 136.71 Rome Statute, preambular para 4.72 Peskin V, and Boduszynski M, ‘The rise and fall of the ICC in Libya and the politics of international

surrogate enforcership’ International Journal of Transitional Justice(2016), 4.

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Meanwhile in The Hague, on 4 September 2015, the Pre-Trial Chamber of the ICC directed South Africa to submit views on its failure to arrest and sur-render President Bashir for purposes of proceedings under Article 87(7) of the Rome Statute by no later than 5 October 2015.73

Back in Johannesburg, on 16 September 2015, the High Court refused the application made by the Respondent authorities on 23 June 2015 for leave to appeal. Consequently, on 2 October 2015, the Government filed an application petitioning the Supreme Court of Appeal for leave to appeal. On that basis, before the Pre-Trial Chamber of the ICC, the SA government applied for an extension of the time limit fixed by Chamber so as to allow for the finalisation of the judicial process in domestic courts concerning the legal obligations of the Government of South Africa under both municipal and international law.74

The municipal judicial process came to an end effective 15 March 2016 with the publication of the judgment of the Supreme Court of Appeal of South Af-rica. In summary, the Supreme Court unanimously decided that the Government had breached its obligations under the Implementation Act No 27 of 2002 in failing to arrest President Bashir and detain him for surrender to the ICC. Dapo Akande has also noted the remarkable finding of the Supreme Court that under the Implementation Act, immunities under international law, including the im-munities of heads of states for genocide, war crimes and crimes against human-ity, would not act as a bar to arrest and prosecution in South Africa in the context of a request by the ICC to SA to cooperate.75

With regard to the host agreement between SA and the AU by which the authorities had sought to argue that President Bashir was entitled to immunity, the Supreme Court, whose lead judgment was delivered by Wallis JA, rejected the argument that President Al Bashir was a ‘delegate’ within the meaning contem-plated in Article VIII of the host agreement and such, it could not confer any immunity on President Bashir.76

On the matter of Article 27 and Article 98 of the Rome Statute, the Su-preme Court readily agreed that there is a tension between these two articles

73 Prosecutor v Omar Hassan Ahmad Al Bashir, Submission from the Republic of South Africa in Re-sponse to the Order requesting a submission dated 4 September 2015, para 1.7.

74 Prosecutor v Omar Hassan Ahmad Al Bashir, Submission from the Republic of South Africa in Re-sponse to the Order requesting a submission dated 4 September 2015, para 1.9, 1.10.

75 Akande D, ‘The Bashir case: Has the South African Supreme Court abolished immunity for all heads of states?’ EJIL Talk!, 29 March 2016.

76 Supreme Court Decision, para 47.

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that has not as yet been authoritatively resolved.77 The lead judgment did not however, pronounce itself on the different strands of debates advanced for the application of these two articles. On the question of whether there is immunity for heads of state under customary international law, the presiding judge stated that he was unable to hold that at this particular stage of customary international law, there is an international crimes exception to the immunity that heads of states enjoy when visiting foreign countries and before foreign national courts.78

In an article discussing the ramifications of the judgment by the Supreme Court, Dapo Akande agrees in substance with the finding on the absence of an international crimes exception to head of state immunity but takes issue with the decision of the Court to halt its consideration of customary international law on the immunity of heads of states without referring to the authorities deal-ing with issues of immunity in relation to persons charged with international crimes.79 Ultimately, the Court was not persuaded by arguments that the UNSC could have by Resolution 1593 implicitly waived President Bashir’s immunity,80 as the Court considered that this matter was the subject of very sharp controversy amongst commentators. In reading the judgment, one almost gets the sense that the Court considers arguments about implicit waiver of immunity by the UNSC to be irrelevant. The Court’s final determination therefore turned on its inter-pretation of the domestic legislation implementing the Statute, Section 10(9)81 thereof which provides that the fact that the person to be surrendered is a person contemplated in Section 4(2) (a) or (b)82 does not constitute a ground for refusal to issue an order contemplated in section 5.83 The persons referred to in Section 4(2)(a) include a person who ‘is or was a head of State.’84 The Court therefore concluded that the fact that President Bashir was such a person was not any

77 Supreme Court Decision, para 60.78 Supreme Court Decision, para 85.79 Akande D, ‘The Bashir case’. See Supreme Court Decision para 69 and 106.80 Supreme Court Decision, para 106.81 The provision (Section 10(9)) reads: ‘The fact that the person to be surrendered is a person con-

templated in section 4 (2)(a) or (b) does not constitute a ground for refusing to issue an order contemplated in subsection (5).’

82 The provision reads: Despite any other law to the contrary, including customary and conventional international law, the fact a person-(a) is or was a head of State or government, a member of a government or parliament, an elected

representative or a government official: or(b) being a member of a security service or armed force, was under a legal obligation to obey a

manifestly unlawful order of a government or superior, is neither-(i) a defence to a crime; nor(ii) a ground for any possible reduction of sentence once a person has been convicted of a crime.

83 Supreme Court Decision, para 100.84 Supreme Court Decision, para 100.

Jerusha Asin


grounds for a magistrate to refuse to make an order for his surrender, in effect stating that Section 10(9) of the Implementation Act removes any immunity with regard to proceedings relating to surrender to the ICC.85 The Court distinguished the application of the Diplomatic Immunities and Privileges Act (DIPA) and ef-fectively held that the Implementation Act was lex specialis with regard to matters falling under its ambit, with the corollary that the DIPA was lex generalis.86 For South Africa therefore, immunity is dependent on domestic legislation in the form of the Implementation Act or where applicable, the DIPA.

Per Akande, the most striking feature of the judgment is the finding on the immunity of heads of states from prosecution in South Africa for international crimes. Notwithstanding the finding that there is no international crimes excep-tion to immunity for heads of states under customary international law(meaning immunity from arrest and prosecution), the Supreme Court held that Section 4(2) (a) of the Implementation Act removes such immunity because it defines those persons for whom immunity is removed under Section 10(9) of the Imple-mentation Act. This means that under the Implementation Act, in South Africa, heads of state have no immunity for international crimes and can be arrested and prosecuted in the territory of South Africa. It is difficult to understand or reconcile this proposition with the Court’s own finding87 that immunity applies even where heads of states are charged with international crimes when one con-siders that South Africa’s domestic implementing legislation on immunities for heads of state may very well clash with customary international law. It is also not entirely clear whether South African domestic legislation could be interpreted to trump the provisions of international law, on the authority of Article 27 of the Vienna Convention on the Law of Treaties. This last point may however be stretching the point to absurdity but it is hoped that the reader appreciates this curious point in the Supreme Court judgment.

Epilogue

The question may then be asked, what has been the reaction of the South African Government to the Supreme Court judgment? There does not yet seem to be an official statement issued by the authorities after the Supreme Court

85 Akande, ‘The Bashir case’.86 Akande, ‘The Bashir case’.87 Supreme Court decision, para 84.

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judgment was handed on 31 March 2016 with its unequivocal finding that the Government violated its own law in failing to arrest and surrender President Bashir to the ICC.

However, prior to the judgment, in October 2015, a deputy government minister reportedly announced the decision by the ruling party, the African Na-tional Congress (ANC) to move Parliament to withdraw South Africa from the Rome Statute.88 This would seem to indicate a groundswell of discontent against the ICC by South Africana authorities on the debacle over the escape by Presi-dent Bashir from South Africa in June 2015.

Regardless, as at the time of this writing in August 2016, all 34 African states party to the Rome Statute are still state parties, without exception. International law is still based on consent by states, and a state that is completely dissatisfied by its relationship with the ICC is at liberty to terminate the relationship accordingly.

It bears noting that threats by different states to abandon the Court fall within the international relations context of three likely behaviour patterns that states would adopt towards the Court: marginalisation, control and acceptance.89 Withdrawal would constitute a form of control of the international tribunal and has international precedent in France and the United States withdrawing the broad jurisdiction they had granted the International Court of Justice in the 1970s and 1980s.90 The state wields withdrawal as an instrument to communicate its displeasure with the activities of an international tribunal but this is an ex-ceptionally blunt instrument as David Bosco observes that may only be wielded once.

That being said, I do not contemplate that there will be a mass withdrawal from the Statute by African countries by reference to the power of ideas at the Rome Conference and the fact that international justice has become too impor-tant to the international system for states to suffer its complete collapse, notwith-standing the grandstanding witnessed by different actors to date.91 However, in the event that one or a few states do withdraw, this will be a shame but nowhere near the cataclysmic disaster we have been made to believe, with reference to the early US opposition to the Court, against which the Rome Statute was hard won. By the same token, with reference to state cooperation, it is also necessary to

88 Reuters, ‘African National Congress plans to withdraw South Africa from International Criminal Court’, The Guardian 11 October 2015.

89 Bosco, Rough justice, 11-17.90 Bosco, Rough justice, 14.91 Schabas W, ‘The Banality of International Justice’ (2013) Journal of International Criminal Justice, 1, 7.

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begin to acknowledge the limitations of the legalist role of the Court in a global politic organised around territorial sovereignty.92 Judging by the blaring headlines whenever both state parties and non-state parties flout the ICC arrest warrant against President Bashir, it would appear that the particular diplomat whose ex-change with the Prosecutor at the outset of this brief was reproduced was right and that the damage wrought to the Court and its credibility in every instance of non-compliance has been significant.93 This is not to presume that if the arrest warrant remains outstanding, President Bashir will not be arrested in the fullness of time. Experience however shows that this will only happen when he loses any and all political capital he holds.94

...All progress is precarious, and the solution of one problem brings us closer to another…95

92 Orford A, ‘A jurisprudence of the limit’ in Orford A (ed) International law and its others (CUP 2009), 2.93 Asin, ‘Pursuing Al Bashir ... between apology and utopia’, 25.94 Asin, ‘Pursuing Al Bashir ... between apology and utopia’, 25.95 King ML, Jr, Strength to love, 1981, 83.


The sexual minority rights conundrum in Africa: Contextualising the debate following the Coalition of African Lesbians’ application for observer status before the African CommissionJ Osogo Ambani*

Although the African human rights legal system boasts of many treaties,1 the most relevant in the context of sexual minority rights2 is the African Charter on Human and Peoples’ Rights (African Charter),3 which agreement enjoys near unanimous ratification by members of the African Union (AU).4 As Vincent Nmehielle justly noted, ‘the African Charter is the primary normative instru-ment of the African human rights system.’5 It thus may easily be regarded as the ‘regional bill of rights.’

The African Charter recites almost all the entitlements enunciated by the international bill of rights.6 In fact, a casual glance at the content of the African

1 Other major treaties of the African Union include: Convention Governing Specific Aspects of Refugee Prob-lems in Africa, 10 September 1969, 1001 UNTS 45; Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 11 July 2003, CAB/LEG/66.6; and African Charter on the Rights and Welfare on the Child, 11 July 1990, OAU Doc. CAB/LEG/24.9/49 (1990).

2 By sexual minority rights is usually meant, lesbian, gay, bisexual, transsexual, and intersex (LGBTI) rights.

3 27 June 1981, 1520 UNTS 217.4 Murray R and Viljoen F, ‘Towards non-discrimination on the basis of sexual orientation: The nor-

mative basis and procedural possibilities before the African Commission on Human and Peoples’ Rights and the African Union’ 29 Human Rights Quarterly (2007), 87.

5 Nmehielle VOO, The African human rights system: Its laws, practice, and institutions, Martinus Nijhoff, the Hague, 2001, 84. Cees Flinterman and Catherine Henderson agree with Nmehielle that ‘in Africa, the protection of individual and collective human rights is centered on the African Charter on Hu-man and Peoples’ Rights.’ See, Flinterman C and Henderson C, ‘African Charter on Human and Peoples’ Rights’ in Hanski R and Suksi M, An introduction to the international protection of human rights: A textbook, 2ed, Institute for Human Rights, Turku,1999, 387.

6 Universal Declaration of Human Rights, 10 December 1948, 217 A (III); International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171; and International Covenant on Economic, Social

* LLD(Cand),LLM(UP),LLB(UoN),Lecturer,StrathmoreLawSchool.

J Osogo Ambani


Charter and the Universal Declaration of Human Rights (UDHR) does not show any real rift.7 Ouguergouz was therefore spot-on when he wrote that,

[t]he two documents contain a comparable catalogue of rights including not only the civil and political rights dear to the liberal tradition, but also the economic, social and cultural rights, which are, if anything, socialist in spirit.8

Because the African Charter carries all generations of human rights, it may properly be described as a montage of human rights. It is, in fact, this aspect that makes the treaty original.9 Part of the rich catalogue of rights in the African Charter is a non-discrimination clause identical to the one in the International Covenant on Civil and Political Rights (CCPR) and the International Covenant on Economic Social and Cultural Rights (CESCR). This cardinal provision reads:

Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social ori-gin, fortune, birth or other status.10

There is also provision for an equal protection stipulation entailing that ‘every individual shall be equal before the law’ and ‘every individual shall be en-titled to equal protection of the law.’11 Compliance with the Treaty is monitored by twin institutions, the African Commission on Human and Peoples’ Rights (African Commission)12 and the African Court on Human and Peoples’ Rights (African Court).13 The African Commission has the mandate to promote human and peoples’ rights and ensure their protection in Africa.14 The role of the Afri-can Court is to complement the Commission’s protective mandate.15

and Cultural Rights, 16 December 1966, 993 UNTS 3, together with the relevant Optional Protocols constitute what has come to be known as the ‘International Bill of Rights’. See Eide A, ‘Economic, social and cultural rights as human rights’ in Eide A, Krause C and Rosas A (eds), Economic, Social and cultural rights: A textbook, Martinus Nijhoff, Dordrect,1995, 21. See, also, Narayan P, ‘Somewhere over the rainbow: International human rights protections for sexual minorities in the new millennium’ 24 Boston University International Law Journal (2006), 327.

7 Ouguergouz F, The African Charter on Human and Peoples’ Rights: A comprehensive agenda for human dignity and sustainable democracy in Africa, Martinus Nijhoff, the Hague, 2003, 55.

8 Ouguergouz, The African Charter on Human and Peoples’ Rights, 55-56.9 Ouguergouz, The African Charter on Human and Peoples’ Rights, 57.10 Article 2, African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 UNTS 217.11 Article 3, African Charter on Human and Peoples’ Rights.12 Established at Article 30, African Charter on Human and Peoples’ Rights.13 Established by Article 1, Protocol to the African Charter on Human and Peoples’ Rights on the establishment of

an African Court on Human and Peoples’ Rights, 10 June 1998, OAU/LEG/MIN/AFCHPR/PROT (1) Rev. 2.

14 Article 30, African Charter on Human and Peoples’ Rights.15 Article 1, Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court

on Human and Peoples’ Rights.

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The sexual minority rights conundrum in Africa


The African Charter, which is an attempt at an African cultural fingerprint of human rights,16 makes no reference to lesbian, gay, bisexual, transgender and intersex (LGBTI) rights.17 Moreover, the African Charter does not protect the right to privacy, which, in the United Nations (UN),18 European19 and Inter Amer-ican legal systems,20 has inspired recognition of LGBTI rights by international tri-bunals.21 However, Rachel Murray and Frans Viljoen have suggested a dynamic in-terpretation of the African Charter to cure the exclusion of the right to privacy.22 According to this counsel, flowing from the view that sexual attraction to persons of the same sex is integral to one’s personality, and an intrusion of that aspect constitutes a violation of the inherent human dignity, the right to privacy could be inferred from related entitlements such as the right to life and human dignity.23

Regard could also be had to the fact that the omission of the right to pri-vacy from the expansive menu of the African Charter was for reasons unrelated to sexual minority rights as the issue did not feature in the travaux preparatoires of the continental treaty.24 Since disregard for sexual minority protection was not a basis for the exclusion of the right to privacy, wrote Murray and Viljoen, it would be dishonest to use its non-articulation as a ground for disdaining homosexuals.

16 Maguire S, ‘The human rights of sexual minorities in Africa’ 35 California Western International Law Journal, 1(2004), 43, where it is stated: ‘Those states that drafted and signed the African Charter sought to stamp an African cultural fingerprint on their regional human rights instrument.’ See, generally, Mutua M, ‘The Banjul Charter and the African cultural fingerprint: An evaluation of the language of duties’ 35 Virginia Journal of International Law (1995), 339.

17 Murray and Viljoen, ‘Towards non-discrimination on the basis of sexual orientation’, 88.18 In Toonen v Australia, CCPR Comm.No. 488/1992 (31 March 1994) the Human Rights Committee

held it undisputable “that adult consensual sexual activity in private is covered by the concept of ‘privacy’”.

19 In the watershed decision, Dudgeon v United Kingdom, ECtHR Judgement of 22 October 1981, the European Court of Human Rights sided with Dudgeon and declared the continued criminalisation of homosexual acts in the United Kingdom (Northern Ireland to be particular) a violation of the European Convention. The judges argued, inter alia, that penalisation of homosexual acts violates the right to respect for private life, including sexual life, within the meaning of Article 8, para 1, Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 222.

20 In Karen Atala Riffo and Children v Chile, IACtHR Judgment of 24 February 2012, the Inter American Court of Human Rights ruled against the respondent State for denying a lesbian couple the legal capacity to have the custody of children from one of the partner’s previous marriage. The regional judicial institution declared this denial a violation of the petitioner’s right to equality, non-discrimi-nation and privacy arguing, inter alia, that sexual orientation and gender identity (SOGI) is included in the protected ground ‘other social condition’ under Article 1, American Convention of Human Rights, 21 November 1969, 1144 UNTS 123.

21 See, Maguire, ‘The human rights of sexual minorities in Africa’, 50, where it is stated: ‘The right to privacy has not evolved in Africa as it has in other legal systems, where it has served as the cen-trepiece of much LGBT activism.’

22 Murray and Viljoen, ‘Towards non-discrimination on the basis of sexual orientation’, 90. 23 Murray and Viljoen, ‘Towards non-discrimination on the basis of sexual orientation’, 90. 24 Murray and Viljoen, ‘Towards non-discrimination on the basis of sexual orientation’, 89.

J Osogo Ambani


Murray and Viljoen also argued that the inclusion of the right to privacy in sub-sequent treaties of the AU like the African Charter on the Rights and Welfare on the Child25 and domestic constitutions26 is an indication that the region may not necessarily be averse to the protection of privacy.

The African Charter also contains an open moral compass in the form of a limitation clause that subjects the enjoyment of rights and freedoms to ‘the rights of others, collective security, morality and common interest.’27 The broad nature of this clause creates the likelihood that arguments in favour of equal-ity and non-discrimination on the ground of sexual orientation or even gender identity would be too weak to withstand counter-arguments based on morality or common interest.28 This position is more compelling in the wake of widely-held perceptions that same-sex intercourse and orientation are contrary to traditional African mores as well as Christian and Islamic teachings, to which most Africans adhere and which the African Charter loudly emphasises.29 In its Preamble, the African Charter calls upon States Parties to consider the virtues of their his-torical tradition and values of African civilisation in characterising the concept of human and peoples’ rights.30 This ‘clarion call’ is converted into a provision obliging States to promote and protect morals and traditional values recognised by the community.31

It is therefore open for African countries to defend their strong opposition to emerging principles of sexual minority rights on the point of cultural relativ-ism. The concept of cultural relativism appreciates that world traditions differ greatly and that the processes leading to universal consensus on human rights principles occasionally results in painful compromises that relegate certain spe-cific cultural items.32 Cultural relativism therefore views universal human rights

25 Article 10, African Charter on the Rights and Welfare on the Child, provides: ‘No child shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to at-tacks upon his honour or reputation, provided that parents or legal guardians shall have the right to exercise reasonable supervision over the conduct of their children. The child has the right to the protection of the law against such interference or attacks.’

26 Article 31, Constitution of Kenya (2010), for instance, provides: ‘Every person has the right to privacy, which includes the right not to have – (a) their person, home or property searched; (b) their pos-sessions seized; (c) information relating to their family or private affairs unnecessarily required or revealed; or (d) the privacy of their communications infringed.’

27 Article 27(2), African Charter on Human and Peoples’ Rights.28 Persad XBL, ‘Homosexuality and death: A legal analysis of Uganda’s proposed anti-homosexuality

Bill’ 6 Florida A&M University Law Review, 1 (2012), 155. Emphasis added.29 Murray and Viljoen, ‘Towards non-discrimination on the basis of sexual orientation’, 93.30 Para 4, Preamble, African Charter on Human and Peoples’ Rights.31 Article 17(3), African Charter on Human and Peoples’ Rights.32 See, generally, Donnelly J, ‘Cultural relativism and universal human rights’ 6 Human Rights Quarterly,

4 (1984), 400-419.

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principles as defeaters of regional specificities, which may be religious, cultural or moral. Since ‘human rights have no fixed and predetermined meaning’ and are ‘given concrete meaning in very different contexts’, a strong case has been made for the accommodation of variant regional particularities through the making of concessions so long as the core principles of human rights are upheld.33 Against this backdrop, African countries may demand the indulgence of the international community for the accommodation of their unique cultural, religious and moral values on sexuality. They could ground such petition on the belief now promi-nent on the continent that homosexual orientation is ‘unAfrican,’ ‘unreligious,’ immoral and a conception of the Western worldview.

African countries keen on disregarding sexual minority rights may also find solace in the language of duties prominent in the ‘regional bill of rights.’ A point has in fact been made that ‘the heavy emphasis on duties to family and society could create a heavier burden on those attempting to establish privacy rights and other legal protections for sexual minorities under the Charter.’34 Article 18 (paragraphs 1 and 2) of the African Charter on the right to family states:

1. The family shall be the natural unit and basis of society. It shall be protected by the state which shall take care of its physical health and moral needs.

2. The state shall have the duty to assist the family which is the custodian of morals and traditional values recognised by the community.35

There is an additional individual duty to uphold positive African cultural values in the course of relations with other members of society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promo-tion of the moral wellbeing of society.36 These, together with the duty to pre-serve and strengthen social and national solidarity,37 could grant ‘governments free rein to restrict personal rights, simply by declaring that the state’s solidarity is threatened.’38 Further, the African Charter does not specifically protect the right to marry or to establish a family.39 Perhaps, this could be ‘presumed in the recognition of the family as the basic unit of society.’40

33 Viljoen F, International human rights law in Africa, 2ed, Oxford University Press, Oxford, 2012, 8.34 Wilets JD, ‘International human rights law and sexual orientation’ 18 Hastings International and Com-

parative Law Review, 1 (1994), 62.35 Emphasis added.36 Article 29(7), African Charter on Human and Peoples’ Rights.37 Article 29(4), African Charter on Human and Peoples’ Rights.38 Flinterman and Henderson, ‘African Charter on Human and Peoples’ Rights’, 390.39 Nmehielle, The African human rights system, 132.40 Nmehielle, The African human rights system, 132.

J Osogo Ambani


Despite the many structural hurdles discussed above, the African Commis-sion appears to be succeeding in developing jurisprudence in favour of sexual minority rights. In its inaugural reference to sexual orientation in 2002, the Afri-can Commission affirmed that equality and non-discrimination are the basis for human rights in Africa, noting that;

[T]he aim of this principle is to ensure equality of treatment for individuals irrespective of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability, age or sexual orientation.41

Through the 2014 Resolution on protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity, the African Commission added its harmony to the voices that have con-demned the increasing incidences of violence and other human rights violations targeted at sexual minorities.42 The regional treaty-body decried the situation of systematic attacks on sexual minorities by state and non-state actors, including murder, rape, assault, arbitrary imprisonment and other forms of prosecution of persons, and called for the protection of human rights defenders engaged in advocacy around sexual minority rights.

While discharging its promotional mandate, the African Commission, in its Concluding observations and recommendations on the 5th periodic report of the Federal Re-public of Nigeria on the implementation of the African Charter,43 rebuked the state party for enacting criminal law44 with

[t]he potential to engender violence against persons on grounds of their actual or imputed orientation, and also to drive this group of persons vulnerable to HIV/AIDS underground, thereby creating an environment which makes it impossible to effectively address the HIV pandemic in the state.45

Ironically, Uganda, which about the same time passed one of the most draconian criminal laws against sexual minorities, the Anti-Homosexuality Act

41 Zimbabwe Human Rights NGO Forum v Zimbabwe, ACmHPR Comm. 245/02, 21 Activity Report, para 169. Emphasis added.

42 ACmHPR, Resolution on protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity, 55th Ordinary Session held in Luanda, Angola, from 28 April to 12 May 2014.

43 57th Ordinary Session, 4-18 November 2015, Banjul, The Gambia.44 Same Sex Marriage (Prohibition) Act, 2014 (Federal Republic of Nigeria). 45 Para 81, Concluding observations and recommendations on the 5th periodic report of the Federal Republic of Nigeria

on the implementation of the African Charter, ACmHPR, 57th Ordinary Session, 4-18 November 2015, Banjul, The Gambia.

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(AHA) 2014,46 escaped the African Commission’s criticism.47 Not even the Af-rican Commission’s constructive dialogue with Kenya aroused debate on the is-sue of LGBTI rights.48 A possible explanation for the haphazard treatment of the subject might be that sexual minority rights are yet to find a stable place in the African Commission’s jurisprudence and its reporting procedures. Although the African Commission included ‘sexual orientation’ as one of the protected grounds of discrimination in the Principles and guidelines on the implementation of economic, social and cultural rights in the African Charter on Human and Peoples’ Rights,49 it would appear, its practice has yet to settle, at least going by the review of recent reports.

That sexual minority rights are still problematic in Africa is further illus-trated by the drama surrounding the Coalition of African Lesbians’ (CAL) ap-plication for observer status before the African Commission.50 At first, in 2010, the African Commission declined to grant observer status to CAL, reasoning that its objectives, which include protection of sexual minorities, offended the AU Constitutive Act and the African Charter.51 In an interesting twist of events, in April 2015, the African Commission rescinded its earlier ruling and granted CAL observer status.52 However, this historic decision met with another obstacle merely two months later. The AU Executive Council, while reviewing the activi-ties of the African Commission for the year 2015, requested it to withdraw ob-

46 Within six months of its enactment, the Constitutional Court of Uganda declared the AHA uncon-stitutional on the technical ground that Parliament did not summon the requisite quorum at the time of its passage. See, Oloka-Onyango & 9 Others v Attorney General, Constitutional Petition No 8 of 2014.

47 Uganda presented its 5th periodic report during the 54th Ordinary Session of the African Commis-sion held in Banjul, The Gambia, between 22 October 2013 and 5 November 2013. The Conclud-ing observations and recommendations on the 5th periodic state report of the Republic of Uganda (2010-2012) (Adopted at the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights) make no reference to the question of sexual minority rights.

48 See, Republic of Kenya, Combined 8th-11th periodic report on the African Charter on Human and Peoples’ Rights, November 2014.

49 Para 1(d), Principles and guidelines on the implementation of economic, social and cultural rights in the African Charter on Human and Peoples’ Rights.

50 Viljoen, International human rights law in Africa, 266. It is important to note that in 2009, the African Commission had granted observer status to Alternatives Cameroun which deals with public health matters including of sexual minorities. See, Viljoen, International human rights law in Africa, 267. The Coalition for African Lesbians first applied for observer status in 2008. For further discussion, see, Viljoen F, ‘Norms, case law and practices of sexual orientation and gender identity in the African hu-man rights system’ in Ending violence: and other human rights violations based on sexual orientation and gender identity: A joint dialogue of the African Commission on Human and Peoples’ Rights, Inter-American Commission on Human Rights and the United Nations, Pretoria University Law Press, Pretoria, 2015.

51 Viljoen, International human rights law in Africa, 266.52 See, Viljoen F, ‘Norms, case law and practices of sexual orientation and gender identity in the Afri-

can human rights system’, 41.

J Osogo Ambani


server status granted to CAL.53 Echoing the common sentiments held by influ-ential political leaders in Africa, the AU Executive Council requested the African Commission to ‘take into account the fundamental African values, identity and good traditions, and to withdraw the observer status granted to NGOs who may attempt to impose values contrary to the African values.’54

Following this directive, the Centre for Human Rights and the CAL approached the African Court seeking an advisory opinion regarding the ‘extent to which the AU political organs may direct the Commission to adopt a particular interpretation of the African Charter.’55 As Africa looks forward to a decisive judicial verdict on this aspect, it is clear the judicial and political organs of the AU are reading from two contradictory scripts. The CAL incident shows that although the quasi-judicial organ in the African regional system (the African Commission) may be ready and willing to protect certain aspects of sexual minority rights, the political organs are not. How this heated debacle is resolved is likely to shed light on the future of sexual minorities in Africa.

53 Decision on the thirty-eight activity report of the African Commission on Human and Peoples’ Rights, Doc.EX.CL/921 (XXVII).

54 Decision on the thirty-eight activity report of the African Commission on Human and Peoples’ Rights, Doc.EX.CL/921 (XXVII).

55 Request for Advisory Opinion by the Centre for Human Rights (CHR) University of Pretoria and the Coalition of African Lesbians, ACtHPR No. 002/2015. See, also, Viljoen F, ‘Norms, case law and practices of sexual orientation and gender identity in the African human rights system’, 41.


Selected recent institutional and rule-making developments in the law of the sea (2015-2016)Humphrey Sipalla*

The United Nations Convention on the Law of the Sea1 (LOSC or the Con-vention) is quite simply, the greatest treaty-making achievement of the United Nations (UN) era. This appraisal of the recent developments of 2015-16 in this legal regime that governs the oceans – waters, floor and subsoil thereof – which cover ‘over 70 percent of the surface of our planet’2, focuses on its oft-ignored aspect, that is, its institutional framework.

LOSC Meeting of State Parties (SPLOS)

Parties to the Convention meet annually as mandated by the Convention3 during which reports of the International Tribunal on the Law of the Sea (IT-LOS), the International Seabed Authority (ISA), and the Commission on the Limits of the Continental Shelf (CLCS) are presented. The Meeting of State Par-ties (SPLOS) elects members to ITLOS and CLCS and deals with the budgetary matters of these institutions. The UN Secretary General also presents a report, in accordance with LOSC Article 319, on issues of a general nature, relevant to state parties, that have arisen with respect to LOSC.

In 2016, SPLOS has been convened twice: on 15 January 2016 as a resumed session of the 25th Meeting (SPLOS25); and from 20 to 24 June 2016 as the 26th

Meeting (SPLOS26).

1 10 December 1982, 1833 UNTS 31633.2 ‘How much water is in the ocean?’ http://oceanservice.noaa.gov/facts/oceanwater.html on 10 Au-

gust 2016.3 Article 319 (2,e), LOSC.

* B.Ed(Kenyatta),MA(UPeace).

Humphrey Sipalla


SPLOS resumed its 25th Meeting to fill vacancies occasioned by resigna-tions in ITLOS and CLCS.4 Antonio Cachapuz de Medeiros (Brazil) was elected to serve the remainder5 of Vicente Marotta Rangel’s term on the bench of IT-LOS, which ends on 30 September 2017.6 However, the election to fill the CLCS vacancy occasioned by the resignation of Nenad Leder (Croatia) did not take place at SPLOS25. This was postponed to the 26th Meeting (SPLOS26) due to a lack of nominations by the allotted group (Group of Eastern European States). State parties also took note that the next (41st) session of the CLCS would be held after SPLOS26, hence such postponement would not be detrimental to the Commission’s work.7 Leder, who resigned on 22 September 2015, had himself only been elected at SPLOS25 to serve until 15 June 20178 after the resignation of George Jaoshvili.9

International Seabed Authority

The International Seabed Authority (ISA or Authority) is the international body10 charged with administering11 the resources of the seabed and subsoil be-yond the limits of national jurisdiction (the Area12) and regulating the mining of its resources.13 It also administers the sharing of the economic benefits thereof among all states, including landlocked and geographically disadvantaged states, with particular consideration for the needs and interests of developing states and peoples.14 It also ensures the sharing the benefits of marine scientific research15 and protection of the marine environment.16

4 Report of the twenty-fifth Meeting of States Parties resumed to elect one member of the Interna-tional Tribunal for the Law of the Sea and one member of the Commission on the Limits of the Continental Shelf (SPLOS25b Report), 28 January 2016, SPLOS/293, para. 1.

5 SPLOS25b Report, para. 12. 6 ITLOS Press Release ‘Resignation of Judge Vicente Marotta Rangel’, ITLOS/Press 230, 18 May 2015.7 SPLOS25b Report, para. 14-16; also, UN Press Release, SEA/2028, 15 January 2016.8 UN Press Release, SEA/2018, 15 June 2015.9 ‘Commission on the Limits of the Continental Shelf (CLCS) – Members of the Commission’

http://www.un.org/depts/los/clcs_new/commission_members.htm#Members on 12 July 2016.10 Established under Article 156, LOSC.11 Article 157, LOSC; Section 1(1), Annex, Agreement Relating to the Implementation of Part XI of the United

Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter, Part XI Implementation Agree-ment), 28 July 1994, 1836 UNTS 3.

12 Article 1(1), LOSC; Preamble 2, Part XI Implementation Agreement.13 Section 1(5)(a-f), 1(15), 1(16), Annex, Part XI Implementation Agreement.14 Articles 140, 148, LOSC; Section 1(5)(d), Annex, Part XI Implementation Agreement.15 Articles 143-4, LOSC; Section 1(5)(h-j), Annex, Part XI Implementation Agreement. 16 Article 145, LOSC; Section 1(5)(g, k), Annex, Part XI Implementation Agreement.

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Selected recent institutional and rulemaking developments in the law of the sea...


The ISA’s organs are: the Assembly, the Council, the Secretariat17, the Legal and Technical Commission,18 and the Finance Committee.19 The Enterprise is a sui generis entity within the ISA.20 The ISA holds annual sessions, the 22nd of which was held between 11-22 July 2016 (ISA22).

The ISA also runs an Endowment Fund that supports the participation of qualified scientists and technical personnel from developing countries in marine scientific research21 and the Voluntary Trust Fund to help ISA members from developing countries participate fully in the meetings of the Legal and Techni-cal Commission and the Finance Committee.22 It is funded by members of the Authority and others. Among its scientific activities,

the [ISA] Secretariat carries out detailed resource assessments of the areas reserved for the Authority; maintains a specialised Database (POLYDAT) of data and information on the resources of the international seabed area and monitors the current status of scientific knowledge of the deep sea marine environment as part of its ongoing development and formulation of the Central Data Repository.23

17 Article 158(1), LOSC; Section 1(4), Annex, Part XI Implementation Agreement.18 A subsidiary organ of the ISA Council (Article 163 (1)(b), also 158 (3), LOSC; Section 1 (4), Annex,

Part XI Implementation Agreement). ‘The Commission is entrusted with various functions relating to ac-tivities in the deep seabed area including the review of applications for plans of work, supervision of exploration or mining activities, assessment of the environmental impact of such activities and provide advice to the [ISA] Assembly and Council on all matters relating to exploration and exploitation of non-living marine resources (such as polymetallic [manganese] nodules, polymetallic sulphides and co-balt crusts).’ https://www.isa.org.jm/authority/legal-and-technical-commission on 10 July 2016; also Article 165, LOSC. LOSC also mandates the establishment of the Economic Planning Commission (Article 163 (1)(a), LOSC), whose need will arise upon commencement of Area resource exploitation as provided for in Section 1(3 &4), Annex, Part XI Implementation Agreement.

19 Established under Section 9(1), Annex, Part XI Implementation Agreement.20 Articles 158(2), 170, LOSC, Section 2(1-3), Annex, Part XI Implementation Agreement. For a compre-

hensive treatment, see International Seabed Authority, Legislative history of the ‘Enterprise’ under the United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI of the Convention, Kingston, 2002.

21 ISA, ‘Scientific activities and promotion’ https://www.isa.org.jm/scientific-activities on 8 July 2016; ISA, ‘International Seabed Authority 22nd Session (Background Press Release),’ 4 July 2016, htt-ps://www.isa.org.jm/news/international-seabed-authority-22nd-session-background-press-release on 6 July 2016.

22 ISA, ‘International Seabed Authority 22nd Session (Background Press Release)’.23 ISA, ‘Scientific activities and promotion’.

Humphrey Sipalla


Licensing of Area activities24

While the ISA is yet to approve any exploitation activities, it has licensed exploratory activities, the earliest of which were granted in 2001 for a period of 15 years to six contractors.25 These contractors applied for extension of these exploration licences for a further five years.26 All extensions were approved at ISA22 by the ISA Council.27

Between July 2015 and August 2016 three exploration contracts were con-cluded. These are contracts for the exploration for cobalt-rich ferromanganese crusts, signed with a Brazilian company, Companhia de Pesquisa de Recursos Minerais S.A, on 9 November 2015; and two for the exploration for polymetal-lic nodules signed with the UK Seabed Resources Ltd on 29 March 2016,28 and Cook Islands Investment Corporation signed on 15 July 2016.29 Two other con-tracts are expected to be signed in 2016: one with the Government of India for the exploration for polymetallic sulphides; and another with China Minmetals Corporation.30 In addition, the ISA Council approved the plan of work for ex-

24 Article 1.1(3), LOSC defines this as ‘all activities of exploration for, and exploitation of, the re-sources of the Area’. ITLOS provides an extensive discussion on the meaning of ‘exploration for and exploitation of ’, including distinguishing ‘activities in the Area’ from any mineral transportation – which is the province of the high seas freedoms regime – and processing thereafter. See Respon-sibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10, para 82-98.

25 Interoceanmetal Joint Organisation, sponsored by Bulgaria, Cuba, Czech Republic, Poland, the Rus-sian Federation and Slovakia (29 March 2001-28 March 2016); Yuzhmorgeologiya, sponsored by the Russian Federation (29 March 2001-28 March 2016); Government of the Republic of Korea (27 April 2001-26 April 2016); China Ocean Mineral Resources Research and Development Association, sponsored by China (22 May 2001-21 May 2016); Institut français de recherche pour l’exploitation de la mer, sponsored by France (20 June 2001-19 June 2016); Deep Ocean Resources Development Co. Ltd, sponsored by Japan (20 June 2001-19 June 2016). Contractor information from www.isa.org.jm/deep-seabed-minerals-contractors/overview on 26 April 2015.

26 As provided in Section 1(9), Annex, Part XI Implementation Agreement. See ISA, ‘International Seabed Authority 22nd Session (Background Press Release)’.

27 Interoceanmetal Joint Organisation, with effect from 29 March 2016 (ISBA/22/C/21); Yuzhmorge-ologiya, with effect from 29 March 2016(ISBA/22/C/22); Government of the Republic of Korea, with effect from 27 April 2016 (ISBA/22/C/23); China Ocean Mineral Resources Research and Development Association, with effect from 22 May 2016 (ISBA/22/C/24); Institut français de re-cherche pour l’exploitation de la mer, with effect from 20 June 2016 (ISBA/22/C/26); Deep Ocean Resources Development Co. Ltd, with effect from 20 June 2016 (ISBA/22/C/25). All dated 18 July 2016.

28 ‘International Seabed Authority 22nd Session (Background Press Release)’, citing ISA Secretary Gen-eral’s Report (ISBA/22/C/5).

29 ‘Cook Islands Investment Corporation Signs Exploration Contract with the International Seabed Authority’.

30 ‘International Seabed Authority 22nd Session (Background Press Release)’, citing ISA Secretary Gen-eral’s Report (ISBA/22/C/5).

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ploration for cobalt-rich ferromanganese crusts submitted by the Government of the Republic of Korea on 10 May 2016.31 As at 10 August 2016, twenty-five contracts for exploration had entered into force (sixteen for polymetallic nod-ules, five for polymetallic sulphides and four for cobalt-rich ferromanganese crusts).32

Regulation of Area activities

As part of its regulatory mandate, the ISA issues binding regulations33 for Area mining. These are regulations for exploration for polymetallic nodules34; poly-metallic sulphides35; and cobalt-rich ferromanganese crusts.36 These regulations, together with accompanying recommendations and procedures, form the Area Mining Code.37

For the first time, draft regulations for the exploitation of Area resources are being developed by the Legal and Technical Commission (LTC). In March 2015, the LTC issued a Draft Framework for the Regulation of Exploitation Activities and a Discussion Paper on the Financial Terms of Exploitation Contracts, followed by a Draft Framework and Action Plan in July 2015. At ISA21, the ISA Council noted with approval the developments, including a submission by the Netherlands on addressing serious harm to the marine environment, and urged member states and all stakeholders to submit their views to the Authority. In 2016, four key discussion papers on various aspects of the proposed exploitation code were published by the ISA Secretariat. Finally, in July 2016, days before the opening of ISA22, the LTC published the first draft exploitation code, inviting

31 ISBA/22/C/20, 18 July 2016.32 ‘International Seabed Authority 22nd Session (Background Press Release)’, citing ISA Secretary Gen-

eral’s Report (ISBA/22/C/5); ‘Cook Islands Investment Corporation Signs Exploration Contract with the International Seabed Authority’ 16 July 2016, https://www.isa.org.jm/news/cook-islands-in-vestment-corporation-signs-exploration-contract-international-seabed-authority on 10 August 2016.

33 Articles 203, 215, LOSC; Section 1 (5)(f, g, k), 1(15), Annex, Part XI Implementation Agreement. Convention Article 189 precludes the exercise of judicial review by the ITLOS Seabed Disputes Chamber over ISA rules, regulations and procedures.

34 Adopted on 13 July 2000, and later updated and adopted 25 July 2013.35 Adopted 7 May 2010 and amended in 2013 and 2014.36 Adopted 27 July 2012 and amended in 2013. Based on these Regulations, the ISA ‘Legal and Tech-

nical Commission has issued recommendations for the Guidance of contractors covering, among others, content, format and structure of their annual reports; exploration expenditure reporting; and assessment of environmental impacts resulting from their operations in the Area [as well as] a guide for contractors and sponsoring states on training programmes under plans of work for exploration’. ‘International Seabed Authority 22nd Session (Background Press Release)’.

37 ISA, ‘The Mining Code’ https://www.isa.org.jm/mining-code on 29 July 2016.

Humphrey Sipalla


stakeholder comment before 2 November 2016.38 At ISA22, the ISA Council urged the LTC to continue this work as a matter of priority.39

The significance of these exploitation regulations cannot be gainsaid. For some years now, environmentalists have warned that Area (deep sea) mining may be irreparably harmful for the environment and have called on the ISA to apply the precautionary principle40 and prioritise its marine protection mandate over the demands of resources hungry companies and their sponsoring states. They argue that ‘[t]here is insufficient scientific data about the impacts of deep sea mining, no regulatory frameworks in place to govern mining operations and the capacity to enforce such frameworks does not yet exist.’41

These proposed regulations will be ISA’s first attempt to provide an exploi-tation framework, upon which assessments of the environmental friendliness and, therefore, legality of exploitation methods can be made.

And while the anticipated Area exploitation is hotly contested, even the current exploration licences have been called into question. ‘…So many exploration licences have been issued without any understanding of the environmental impacts of exploration, let alone exploitation.’42 In May 2015, a coalition of NGOs submitted a report to the ISA on Developing a regulatory framework for mineral exploitation in the Area.43 The exploitation code will give an indication of civil society influence in Area law-making,44 particularly considering

38 ISA, ‘Ongoing development of regulations on exploitation of mineral resources in the Area’ htt-ps://www.isa.org.jm/legal-instruments/ongoing-development-regulations-exploitation-mineral-resources-area on 10 August 2016.

39 ISBA/22/C/28, 19 July 2016.40 For a discussion on the application of the precautionary principle in the Area mining regime, see

ITLOS, Obligations of states, para 125-35. While a fuller treatment of whether the precautionary prin-ciple obligates the ISA to apply some form of moratorium on Area exploration or exploitation is beyond our present scope, it is worthy of brief note that the ISA may be precluded from applying such moratorium by Section 1(15)(c), Annex, Part XI Implementation Agreement. It would therefore be more helpful that any advocacy in this regard, rather or in addition, be directed at SPLOS.

41 ‘No deep sea mining without civil society consent! Worldwide pressure on the International Seabed Authority for a moratorium on deep sea mining’ Deep Sea Mining Campaign, 20 July 2015, http://www.deepseaminingoutofourdepth.org/media-release-worldwide-pressure-on-the-isa-for-a-mor-atorium-on-deep-sea-mining/. See also, Avaaz, ‘Save our oceans from deep sea mining’ https://secure.avaaz.org/en/deep_sea_mining_2/?pv=63&rc=fb on 6 July 2016.

42 ‘No deep sea mining without civil society consent!’43 Deep Sea Mining Campaign, Earthworks, MiningWatch Canada, Oasis Earth and the Mineral Policy

Institute, Developing a regulatory framework for mineral exploitation in the area: Submission to the International Seabed Authority on the report to ISA members and stakeholders, 15 May 2015, http://www.deepseamining-outofourdepth.org/wp-content/uploads/150515_ISA_Submission.pdf on 6 July 2016.

44 Article 169, LOSC provides for ‘consultation and cooperation’ with IGOs and ECOSOC recognised NGOs. In addition, the ISA conducts ‘Stakeholder Surveys to solicit relevant information for the development of a regulatory framework for the exploitation of minerals in the Area from members

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that the Area is ‘the common heritage of humanity’45 in which states, even when acting together, will continue to be hard pressed to retain unfettered decision-making authority.

In the interrelated questions of licensing and regulating Area mining and environmental protection, two municipal developments are worthy of brief note. In 2014, Papua New Guinea (PNG) concluded an agreement with Nautilus Minerals to conduct deep-sea exploitation on the ocean floor within its national jurisdiction, approximately 30 kilometers off the coast of New Ireland.46 The PNG Government holds a 15% stake in the mine, and exploitation is expected to begin in 2018.

In August 2016, a petition was launched to urge the PNG government to reconsider the project.47 Opinions are unsurprisingly mixed. Greenpeace, for instance, argues that ‘[t]he deep ocean is not yet mapped or explored and so the potential loss of fauna and biospheres from mining is not yet understood’ while the ISA welcomed the development as ‘a very exciting opportunity …, which is a world first and should give us some valuable insights into technical feasibility and environmental impact.’48

In addition, the US Government, through the municipal regulator, the Na-tional Oceanic and Atmospheric Administration (NOAA), has been sued by an NGO, the Center for Biological Diversity, for issuing and renewing licences for large-scale deep-sea mining in the Clarion-Clipperton Zone (CCZ),49 which is the

of the Authority and current and future stakeholders.’ ISA, ‘Scientific activities and promotion’, https://www.isa.org.jm/scientific-activities on 8 July 2016. See https://www.isa.org.jm/observers for a list of observer NGOs before the ISA. Also, ‘On 9 July [2015], the Center for Ocean Solutions released a paper in Science journal outlining research carried out over eight years into seabed mining. It is intended to inform upcoming discussions by the ISA that will set the groundwork for future deep sea environmental protection and mining regulations.’ Vella H, ‘Balancing economics and the environment: deep sea mining in the Clarion-Clipperton zone’ Mining-technology.com 3 November 2015 http://www.mining-technology.com/features/featurebalancing-economics-the-environment-deep-sea-mining-the-clarion-clipperton-zone-4647457/ on 6 July 2016.

45 UNGA Resolution 2749 (XXV) of 17 December 1970; Preamble 6, Articles 136 (also 137), 150(i), LOSC; Preamble 2, Part XI Implementation Agreement.

46 ‘Deep sea mining in the PNG’ http://www.solwaramining.org/ on 10 August 2016; also, Shukman D, ‘Agreement reached on deep sea mining’ BBC News 24 April 2014.

47 Avaaz, ‘Papua New Guinea: Stop the deep sea mine’ https://secure.avaaz.org/en/png_nautilus_bgms/?pv=96&rc=fb on 15 August 2016.

48 Shukman, ‘Agreement reached on deep sea mining’ BBC, citing Richard Page of Greenpeace and Michael Lodge, then Deputy Secretary General and Legal Counsel of the ISA.

49 Center for Biological Diversity, ‘Landmark lawsuit challenges US approval of deep-sea mineral min-ing: New ocean gold rush could hurt marine life before impacts are known’ Press Release 13 May 2015 http://www.biologicaldiversity.org/news/press_releases/2015/deep-sea-mining-05-13-2015.html on 8 July 2016; See also, Vella, ‘Balancing economics and the environment’; ‘No deep sea min-

Humphrey Sipalla


deep sea between Hawaii and Mexico.50 While the US participated in the LOSC negotiations during the Third United Nations Conference on the Law of the Sea (UNCLOS III) until 1980, it has not ratified the ‘constitution for the oceans’.51 The US lays claim to the parts of the CCZ and to a right to mine there, regard-less of its non-accession52 under its Deep Seabed Hard Mineral Resource Act of 1980. This present lawsuit therefore concerns US municipal law.

While not legally impinging on the Area regime, these municipal develop-ments can be expected to influence Area exploitation in some way. They come just as the five-year countdown to exploitation by the six initial contractors dis-cussed above begins53, and during development of the Area’s exploitation code, which is, arguably, legally bound to higher standards of environmental protection and balance between business and the protection of humanity’s common herit-age, as indicated above by the ITLOS advisory opinion.

Elections of ISA office holders

Elections for key ISA office holders were also held in ISA22. These in-clude: Secretary-General of the Authority for the period 2017-2021; half of the 36-member Council; the Legal and Technical Commission; and the 15-member Finance Committee, whose terms of office expire on 31 December 2016.54 Mi-chael Lodge (UK) was elected the new ISA Secretary General, succeeding Nii

ing without civil society consent!’.50 Vella, ‘Balancing economics and the environment’. The ISA defines it as ‘An area in the Eastern

Pacific Ocean approximately 20oN, 120oW to 5oN, 160oW bounded by the Clarion Fracture Zone to the north and the Clipperton Fracture Zone to the south. All of the potential polymetallic nodule exploration contracts that have been granted in the Pacific are in this region. Also called the Clarion-Clipperton Zone. Abbreviated to CCFZ or CCZ.’ ISA, ‘Clarion-Clipperton Fracture Zone’ https://www.isa.org.jm/clarion-clipperton-fracture-zone on 6 July 2016.

51 Koh T, ‘A constitution for the oceans: Remarks by Tommy TB Koh of Singapore, President of the Third United Nations Conference on the Law of the Sea’. See Amb. Koh’s remarks urging the US to ‘reconsider its position’ on precisely this question, in this speech, delivered at the final session of UNCLOS III.

52 Vella, ‘Balancing economics and the environment’, See also, Groves S, ‘The US can mine the deep seabed without joining the UN Convention on the Law of the Sea’ The Heritage Foundation http://www.heritage.org/research/reports/2012/12/the-us-can-mine-the-deep-seabed-without-joining-the-un-convention-on-the-law-of-the-sea on 6 July 2016. The US has concluded bilateral non-con-test agreements with every nation that has been licensed by the ISA to conduct exploratory activities in the CZZ. See Groves, ‘The US can mine…’.

53 ‘Commercialization of marine minerals in deep seabed well within reach…’ https://www.isa.org.jm/news/commercialization-marine-minerals-deep-seabed-well-within-reach-international-seabed-authority 16 August 2016.

54 ‘International Seabed Authority 22nd Session (Background Press Release).’

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Allotey Odunton (Ghana), who had served since 2009.55

The ISA Council’s election of LTC members for the 2017-2021 term was rather contested, leading to a lengthy debate and a ‘rare night meeting,’ as delega-tions were divided over whether to have a 25, 30 or 36 member LTC. 30 nomi-nations had been received within the stipulated time. Agreement was reached to elect 30 experts, ‘on an exceptional and temporary basis, and without prejudice to future elections’. The ISA Council further requested a report from the Secretary General on the ideal size and composition of the LTC, with due regard to the outcomes of the Article 154 review. Five Africans were elected to the LTC, with the expert from Cameroon being reelected, and a new expert from Egypt, and new slots for South Africa, Kenya, and Uganda.56 The LTC had 24 members for the 2012-2016 term.57 Although serving in their personal capacities,58 is notewor-thy that an expert from landlocked Uganda was elected.

Article 154 periodic review

Of particular interest among matters for consideration at ISA22 was LOSC Article 154 periodic review of the regime governing the Area. Although Article 15459 mandates a regular five-year review, it is only at the ISA21 in July 2015 that the Review Committee was first established.60 The Review Committee’s mandate involves

55 ‘Assembly elects Michael Lodge of the United Kingdom as next secretary-general of Seabed Au-thority…’ 21 July 2016, https://www.isa.org.jm/news/assembly-elects-michael-lodge-united-king-dom-next-secretary-general-seabed-authority-hears on 10 August 2016.

56 ‘2016 Seabed Session concludes after extended council debate over LTC membership; Assembly Ap-proves $17.1M Budget for 2017-2018’ 25 July 2016 https://www.isa.org.jm/news/2016-seabed-ses-sion-concludes-after-extended-council-debate-over-ltc-membership-assembly on 13 August 2016; also, ‘Decision of the Council … relating to the election of members of the [LTC]’ ISBA/22/C/29, 26 July 2016.

57 ‘Legal and Technical Commission’ https://www.isa.org.jm/authority/legal-and-technical-commis-sion on 13 August 2016.

58 In its comments discussed below, the Article 154 Review Committee explicitly raised concern that members of the LTC and the Finance Committee ‘should refrain from acting as delegates from their respective country in the [Authority organ] in respect of matters that are within the competence of that [Commission/Committee].’Periodic Review of the [ISA] Pursuant to LOSC Article 154, Interim Report, Comments by the Review Committee, ISBA/22/A/CRP.3(2), 25 May 2016, para 18, 19.

59 Article 154, Part XI, LOSC: ‘Every five years from the entry into force of this Convention, the Assembly shall undertake a general and systematic review of the manner in which the international regime of the Area established in this Convention has operated in practice. In the light of this re-view the Assembly may take, or recommend that other organs take measures, in accordance with the provisions and procedures of this part and the annexes relating thereto which will lead to the improvement of the operation of the regime.’

60 ‘ISA commences first periodic review’ 29 January 2016, https://www.isa.org.jm/news/isa-com-mences-first-periodic-review on 6 July 2016.

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a review of the level of representation and attendance of members of the Authority at its regular annual sessions; an analysis of the performance of the Assembly as the supreme or-gan of the Authority; an analysis of the performance of the Council as the executive organ of the Authority; and a review of the structure of the secretariat and of the performance of its functions including its performance of the functions of the Enterprise pursuant to paragraph 5 of section 1 of the annex to the 1994 Agreement. The review would also require a review of the performance, level of representation and attendance of members of the subsidiary organs of the Authority, together with an analysis of the current and projected workload and the identification of measures that may lead to an improvement of their operations.61

Chaired by former ITLOS judge Helmut Tuerk, its conclusions and recom-mendations, seventeen years overdue, will be much awaited. Worthy of concern for Africa and the developing world is the assessment of Third World states’ participation in the workings of the ISA. It ought be recalled that among the remarkable achievements of LOSC is the extent to which it provides for the con-cerns of the Third World in matters such as a fairer judicial settlement organ,62 preferential treatment in relation to marine environment pollution control,63 a definitive exclusive economic zone (EEZ) to protect their fisheries jurisdiction,64 as well as the rights of landlocked states.65 Relevant for the review beyond state participation in ISA decision-making is the role of the Enterprise, and capacity and technology transfer to developing states.66 The effective participation of de-

61 ‘ISA commences first periodic review’.62 An issue driven by African states, given their then disenchantment with the ICJ over the South West

Africa cases and which led to the creation of ITLOS. See Oxman BH, ‘The rule of law and the United Nations Convention on the Law of the Sea’, 7 The European Journal of International Law (1996), 369; Pellet A, ‘Judicial Settlement of International Disputes’ The Max Planck Encyclopedia of Public Interna-tional Law, Vol. VI, last updated April 2011, para. 69.

63 Article 203, LOSC.64 As conceived by Kenyan Francis Njenga and Tanzanian Joseph Warioba in 1971. See Akintoba TO,

African states and contemporary international law: A case study of the 1982 Law of the Sea Convention and the exclusive economic zone, The Hague, Martinus Nijhoff, 1996, 2-3; Njenga FX, International law and world order problems, Moi University Press, Eldoret, 2001, 107-161.

65 Tuerk himself points out the role of the combined efforts of European landlocked and Third World states during UNCLOS III in securing greater rights for landlocked states in LOSC in comparison with the defunct Geneva law of the sea regime. See Tuerk H, ‘Landlocked states and the law of the sea’, UN Audiovisual Library of International Law, on 20 February 2014.

66 Area mining technology transfer to developing states was among the thorniest issues that held up LOSC ratification by major maritime powers. To this end, Section 5, Annex, Part XI Implementation Agreement pegged the acquisition of such technology ‘on fair and reasonable commercial terms and conditions [on the open market], consistent with the effective protection of intellectual property rights’. See also, on economic assistance to mineral export dependent developing states affected by price reductions from Area mining, Section 7, Annex, Part XI Implementation Agreement. However, capacity building for personnel from Third World states is already operational. ISA contractors ‘have a legal obligation to provide and fund training opportunities for trainees from developing states and [ISA] personnel. The legal basis for the requirement stems from the provisions of the

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veloping countries in ISA proceedings will also foreshadow how the mechanism for sharing Area exploitation benefits is effected, which will be the mandate of the ISA’s Economic Planning Commission.67

An Interim Report of the First Periodic Review of the International Re-gime of the Area Pursuant to Article 154 of the Convention,68 prepared by a consultancy firm, was considered at ISA22 by the ISA Assembly, along with the comments of the Review Committee, the ISA’s LTC, Finance Committee and Secretariat.69 States, observers and stakeholders were urged to send in their comments before 15 October 2016, with a revised interim draft expected by 15 January 2017 and a draft final report by 15 April 201770 in anticipation of the 23rd

ISA Assembly in July 2017.

The comments of the Review Committee provide useful insight. The Re-view Committee first laments the poor response to the review questionnaire and requests for interviews, indicating that this casts doubt on the reliability of such sparse views for gauging support for a specific finding.71

The Review Committee’s comments dedicate significant concern on the need to further develop Area mining regulation and environmental protection. It affirms the need for the ISA to study the adequacy of the municipal legisla-tions of states sponsoring entities with Area exploration contracts, in accordance with the ITLOS opinion.72 The ISA maintains a limited raw database of national legislation, but a qualitative assessment of adequacy, as discussed above, remains lacking.73 The Review Committee also calls for an inspectorate to be urgently

Convention and the 1994 Agreement and is set out in the standard terms of contracts. The purpose of the obligation is to ensure that personnel from developing states are provided with appropriate operational expertise to enable them to participate in deep seabed mining.’ See https://www.isa.org.jm/contractor/training-activities for further information and how to apply. Also, ITLOS, Obligations of states, para 157.

67 See note 18 above.68 Hereinafter 2016 Interim Review Report. 69 Decision of the Assembly regarding the interim report of the first periodic review of the interna-

tional regime of the Area pursuant to article 154 of [LOSC], ISBA/22/A/11, 21 July 2016.70 ISBA/22/A/11. 71 ISBA/22/A/CRP.3(2), para 2.72 ISBA/22/A/CRP.3(2), para 5; also ITLOS, Obligations of states.73 ‘As at 30 May 2016, the following States and areas had provided information on, or texts of, relevant

national legislation: Belgium, China, Cook Islands, Cuba, Czech Republic, Fiji, France, Germany, Guyana, India, Japan, Mexico, Nauru, Netherlands, New Zealand, Nigeria, Niue, Oman, Republic of Korea, Singapore, Tonga, United Kingdom of Great Britain and Northern Ireland, United States of America and Zambia; and a submission had also been received from the Pacific Community Sec-retariat on behalf of the Pacific islands region. [See] (www.isa.org.jm/national-legislation-database).’ Laws, regulations and administrative measures adopted by sponsoring States and other members of the International Seabed Authority with respect to the activities in the Area: Report of the Secretary-

Humphrey Sipalla


established to enforce Area activity standards in light of the fast-approaching commercialisation of Area exploitation74 and a clear plan on how the Authority will ensure environmental protection.75

The Review Committee suggests that the confidentiality provisions of data supplied to ISA and lack of transparency in the work of the LTC may not fit in with the Authority’s role as trustee of humankind’s common heritage.76

The Review Committee notes that the definition of ‘developing state’ re-mains unclear, but curiously recommends that the UN be consulted.77 It would seem, given the particular attention granted developing countries in LOSC as discussed above, that such a question may be worthy of a request for an ITLOS advisory opinion. Such view is supported by the fact that the Review Committee itself expresses concern for the need to establish the Economic Planning Com-mission ‘well ahead of the advent of commercial seabed mining’, as well as begin operationalisation of the Enterprise.78

As if to foreshadow its contested election, as discussed above, the Review Committee had also suggested that the LTC, as well as the Secretariat, should have increased levels of expertise in order to ‘to incorporate applicable standards for the protection and preservation of the marine environment’.79

Finally, the Review Committee highlights problems relating to the participa-tion of observers in ISA debates and the ‘very little substantial contribution’ of the Assembly, which promotes low participation interest by member states and results in lack of quorum for Assembly meetings. It dismisses the suggestion of the consultants – who drafted the 2016 Interim Review Report – that the Assembly meet biennially as a violation of LOSC Article 159(2). Instead, the Review Committee recommends that rather the Assembly and Council meetings being held concurrently as is the present case, the Assembly should consider meeting immediately after the Council’s annual meeting, thus splitting the two-week annual session to one week each for Council and later the Assembly.80 This

General, ISBA/22/C/8, 13 June 2016.74 ISBA/22/A/CRP.3(2), para 6-7, 21.75 ISBA/22/A/CRP.3(2), para 20.76 ISBA/22/A/CRP.3(2), para 8, 18.77 ISBA/22/A/CRP.3(2), para 9.78 ISBA/22/A/CRP.3(2), para 10, 21. See also, Issues relating to the operation of the Enterprise, in

particular the legal, technical and financial implications for the Authority and for States parties: Note by the Secretariat, ISBA/22/LTC/9, 18 April 2016.

79 ISBA/22/A/CRP.3(2), para 11, also para 17, 18.80 ISBA/22/A/CRP.3(2), para 12-15.

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suggestion, in any case, is customary for most other membership IGOs. It also urges the Council to meet twice a year since the Area regime is fast developing.81

Commission on the Limits of the Continental Shelf

While the determination of continental shelf limits beyond 200 nautical miles is vested in the coastal state, the Commission on the Limits of the Conti-nental Shelf (CLCS)82 is mandated to receive submissions of such delineations and make recommendations which will form the basis of the final determination to be made by the coastal state.83 This means that the completion of this pro-cess by coastal states will provide the definitive borders of the Area. This highly technical undertaking84 is of particular importance to the future of the economic development of African coastal states, given the vast resources available on the continental shelf.

LOSC had set a deadline of 2004 (ten-year limit from entry into force)85 for coastal states to formally claim their rightful share of the continental shelf. However, given the technical and financial challenges faced by the least devel-oped coastal states, SPLOS concluded an understanding in 2001 to consider the ten-year period as starting from 13 May 1999, effectively postponing the deadline to 2009.86 Later in 2008, state parties at SPLOS agreed to understand the 2009 deadline to have been met by their submission to the UN Secretary General of ‘preliminary information indicative of the limits of the outer limits of the con-tinental shelf beyond 200 nautical miles’.87 State parties further agreed that such preliminary information be submitted, without prejudice to the final submission, and that the preliminary submission would not be considered by the CLCS,88 thus only serving to allow such struggling states to meet the LOSC deadline. These understandings have thus prolonged the life of the CLCS.

81 ISBA/22/A/CRP.3(2), para 16.82 Established under LOSC, Annex II.83 Article 76, LOSC.84 More a matter of the natural sciences than of law, akin with the verification regime of the Compre-

hensive Nuclear Test Ban Treaty.85 Article 4, Annex II, LOSC.86 SPLOS/72, para (a).87 SPLOS/183, para. 1(a).88 SPLOS/183, para. 1(c, b). See also UN Doc A/RES/63/111 on Oceans and the Law of the Sea, 5

December 2008.

Humphrey Sipalla


The CLCS continues to labour under an overwhelming workload, lack of adequate funding, lack of full membership and poor participation by members as well as dwindling resources of the trust fund created to facilitate participation in the CLCS meetings.89 CLCS members also struggle with less-than-favourable terms of service and working conditions, including inadequate office space.90

Currently it takes at least six years, from date of receipt of submissions, for the CLCS to establish a sub-commission to consider them. As at 31 August 2015, 49 out of the 81 submissions to the CLCS were not under active considera-tion.91 By 18 April 2016, this had reduced to 45.92 In response to these concerns, SPLOS’ Open Ended Working Group on the conditions of service of the mem-bers of the CLCS presented its report to SPLOS26.

Selected recent rule making development

Entry into force of the PSMA

On 5 June 2016 the Food and Agriculture Organisation (FAO) announced93 the entry into force of the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA). Adopted as an Article XIV instrument under the FAO Constitution,94 the PSMA is the first ever binding treaty on illegal fishing and is now binding on: Australia, Barbados, Chile, Costa Rica, Cuba, Dominica, the European Union (as a member organisa-tion), Gabon, Guinea, Guyana, Iceland, Mauritius, Mozambique, Myanmar, New Zealand, Norway, Oman, Palau, Republic of Korea, Saint Kitts and Nevis, Sey-chelles, Somalia, South Africa, Sri Lanka, Sudan, Thailand, Tonga, the United States of America, Uruguay, and Vanuatu.95

89 Statement by Kenya to SPLOS26, 23 June 2016.90 UN Press Release, SEA/2018, 15 June 2015; UN Press Release, SEA/2028, 15 January 2016; Letter

of the Chair of the [CLCS] addressed to the President of [SPLOS26], 18 April 2016, SPLOS/298, para. 8-23, offers further insight into these problems.

91 Report of the UN Secretary General on oceans and the law of the sea, 1 September 2015, A/70/74/Add.1, para.12-13.

92 Letter of the Chair of the [CLCS] addressed to the President of [SPLOS26], para. 9.93 ‘UN agency announces world’s first illegal fishing treaty now in force’ UN News Centre 5 June 2016

http://www.un.org/apps/news/story.asp?NewsID=54140 on 6 July 2016.94 ‘UN agency announces world’s first illegal fishing treaty now in force’.95 ‘UN agency announces world’s first illegal fishing treaty now in force’.

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The PSMA requires state parties to tighten control over their ports to detect illegal unreported and unregulated fishing (IUU), interdict offloading and the sale of illegally caught fish and, even more importantly, share information globally on offending vessels. Measures include restriction of landing sites to specific sites to facilitate inspection, regulating port entry and requiring detailed information from such vessels.96 Practices related to illegal fishing include operating without proper authorisation, using outlawed types of gear, catching protected species and disregarding catch quotas, of which the latter two are also regulated under the LOSC regime.

With this Treaty, and given ITLOS’ decisions in MV Saiga II (Saint Vincent and the Grenadines v. Guinea)97 and MV Virginia (Panama/Guinea Bissau)98, the legal regime on coastal state powers to regulate illegal fishing becomes even clearer. Yet, only eight of Africa’s coastal states have ratified the PSMA. Unsurprisingly, Guinea, which first bore the brunt of clarifying the legal limits of coastal state powers to regulate illegal fishing, is among the state parties. African current dis-regard of this Treaty is all the more unfortunate as Goal 14.4 of the Sustainable Development Goals99 specifically calls for the effective regulation, by 2020, of ‘harvesting and end[ing] overfishing, illegal, unreported and unregulated fish-ing and destructive fishing practices.’100 This is in addition to the Addis Ababa Action Agenda’s assertions on enhanced capacity for monitoring, control and surveillance of fishing vessels so as to effectively prevent, deter and eliminate il-legal, unreported and unregulated fishing,101 prohibiting subsidies that contribute to overfishing102 and the centrality of sustainable fisheries in ending hunger and malnutrition.103

96 ‘UN agency announces world’s first illegal fishing treaty now in force’.97 (Merits), 1 July 1999, ITLOS Reports 1999, p.4.98 Judgement, 14 April 2014, ITLOS Reports 2014, p.4.99 UNGA Resolution A/Res/70/1, 21 October 2015.100 Goal 14.4, SDGs. See also, Goal 14.6 on prohibiting subsidies that facilitate IUU, as well as Goal 14.7

on increasing the economic benefits to Small Island Developing States (SIDS) and Least Developed Countries (LDCs) through inter alia, sustainable management of fisheries.

101 Addis Ababa Action Agenda of the Third International Conference on Financing for Development (Addis Ababa Action Agenda), Annex, UNGA Resolution A/Res/69/313, para. 92.

102 Addis Ababa Action Agenda Annex, para. 83.103 Addis Ababa Action Agenda Annex, para. 13.


Book Reviews

Cyber-attacks and the exploitable imperfections of international law

By Yaroslav Radziwill Brill Nijhoff, Leiden, 2015

Reviewed by Ivan Sang*

George Orwell’s prescient 1984,1 which was published in 1949, is a mod-ern classic that is often said to have predicted many of the things that are common features of life today. Startling parallels can be found

between the current wars, the frightening extent of surveillance, the shocking use of torture and the key events described in the book. The omnipresent ‘Big Brother’, with his all-seeing eye, may now be a suitable metonymy for the ex-traordinary extent to which our society is inter-connected through cyberspace. This was implicitly foretold in Neuromancer, a 1984 cyber-punk novel published at the incubation of our digital age.2 It described cyberspace as a ‘consensual hal-lucination experienced daily by billions of legitimate operators, in every nation’3 and also conjured ‘Operation Screaming Fist’, a cyber-attack mission to remotely hack into and disrupt the Union of Soviet Socialist Republics’ computer systems. These two fictional dystopian futures mirror our present. And nowhere was this clearer than in the wake of cyber-attacks against Tallinn, the highly-networked capital of Estonia,4 and the 2013 Snowden revelations of the intrusive scope of

1 Orwell G, 1984, Secker & Warburg, London, 1949.2 Gibson W, Neuromancer, Ace, New York, 1984.3 Gibson, Neuromancer, 69.4 Tikk E, Kaska K &Vihul L, International cyber incidents: Legal considerations, CCD COE, Tallinn, 2010,

18-24.

* Consultant@ILabAfrica,StrathmoreUniversity.

Ivan Sang


electronic espionage by the major military powers.5 The logic is now undeniable that we are back to the future of cyber warfare.

More recently, reports of cyber intrusions bordering on crime have been frequent at the domestic level in various jurisdictions.6 But it is international cyber-incidents, involving inter-state operations, which have attracted much attention as an area of key concern.7 The fact that the global economy is highly dependent on cyberspace presents as much an opportunity for expanding trade and industry as it does for frightful cyber-attacks and other cyber-unique vulnerabilities.8 As might be expected, the current law struggles to rein in on an emergent and evolv-ing threat whose adverse capabilities could not have been envisaged when the law was adopted, which implies both problems and prospects. However, it is now widely accepted that despite not being covered by positive rules of international law, cyberspace is regulated by existing international legal norms.9 This is also the basic premise of Yaroslav Radziwill’s Cyber-attack and the exploitable imperfections of international law. He focuses, however, on the current gaps in the legal framework and how states can use the deficiencies of the law to their advantage.

The starting point of Radziwill’s constructive critique of the extent to which the existing international law can address the challenges posed by cyber-attack is a careful analysis of the jus ad bellum (norms on the legality of recourse to force) and jus in bello (norms regulating permissible conduct in war). At the outset, Radziwill takes the view that current international law governs cyber op-erations defectively, and his central thesis is that international law has a substan-tial amount of significant imperfections that can be exploited in cyber-warfare. He elaborates this by explaining that although institutional and technical tools can usefully expand the regulatory scope of current international law over cyber

5 Milanovic M ‘Human rights treaties and foreign surveillance: Privacy in the digital age’ Harvard Inter-national Law Journal (2015), 81.

6 Koch R, Stelte Band Golling M, ‘Attack trends in present computer networks’ in Czosseck C, Ottis R and KZiolkowskiK (eds), 2012 4th international conference on cyber conflict, CCD COE, Tallinn, 2012, 272.

7 Schmitt MN, Tallinn Manual on the international law applicable to cyber warfare, Cambridge University Press, Cambridge, 2013, 1-2 referring to ‘the massive cyber operations by “hacktivists” against Esto-nia in 2007 and against Georgia during its war with the Russian Federation in 2008, as well as cyber incidents like the targeting of the Iranian nuclear facilities with the Stuxnet worm in 2010 [as having] focused the attention of States on the subject.’

8 Clarke RA and Knake R, Cyber war: The next threat to national security and what to do about it, Harper Col-lins, New York, 2010, 220; Denning DE, ‘Terror’s web: How the internet is transforming terrorism’ in Jewkes Y and Yar M (eds), Handbook of internet crime, Wilan, London, 2010, 198.

9 Roscini M, Cyber operations and the use of force in international law, Oxford University Press, London, 2014, 40: ‘[I]t should be clear that existing primary and secondary rules of international law, includ-ing the law of state responsibility, the jus ad bellum and the jus in bello, do apply to cyber operations.’

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operations, uncertainties and gaps still remain that can cynically be used to justify politically motivated action. In response, systematic effort is made throughout his analysis to clearly explain aspects of international law which are insufficient to contain the threat of cyber-attacks and to offer practical remedies that can eliminate them. This advances the existing debate significantly.

The book comprises nine chapters that are sequentially organised to build upon the arguments of the previous chapters and, ultimately, to make the case for overcoming the gaps that currently exist in the law to advance state interests in cyberspace. In Chapter 1, Radziwill outlines the book’s objectives and research questions, identifies the relevant literature on the subject of inquiry and points out their deficiencies, and explains how the research fits in and adds to the exist-ing body of work. It is here that Radziwill shows his independent thoughts and also reveals a rigorous methodology that characterises the book’s tenor in the remaining chapters. The point is clearly made in this chapter that, presently there is insufficient evidence to suggest any imminent threat of cyber-attack that can cause death, injury or destruction on a scale comparable to kinetic operations. But this point is arguable in the light of some recent reports of thwarted cyber-attacks that had the potential to cause widespread damage.10

Radziwill also laments the fact that most authors on the subject overlook crucial legal aspects, including cyber-terrorism and peacekeeping in the virtual domain. This is bold because it offers readers a basis on which to evaluate how the author delivers in terms of gap-filling. Another noteworthy aspect of Chap-ter 1 is its explanation of the meaning of certain key words, including ‘cyber-attack’ and ‘cyber-space’, and why they are to be preferred over other terms as used in other sources. Radziwill’s brief defence of the word ‘cyber-space’ is well reasoned, but even more convincing is the fact that, unlike other alternatives, it is ‘short, clear, reasonably comprehensive and well-established’.

Chapter 2 discusses in detail the underlying theoretical framework of the book. Its main thrust is that governments do not usually ignore regulatory norms of the international legal process, but deliberately press for interpretations of those norms which best favour their state-centric interests. His argument rec-ognises the central place that governments hold in the current state-centred politico-legal system of the United Nations (UN). And it is on this basis that he

10 ‘David E Sanger: US indicts 7 Iranians for cyber-attacks on banks and a dam’ New York Times, 24 March 2016

http://www.nytimes.com/2016/03/25/world/middleeast/us-indicts-iranians-in-cyberattacks-on-banks-and-a-dam.html?_r=0 on 24 August 2016.

Ivan Sang


argues convincingly that since the major powers have a pivotal role in develop-ing the rules of engagement for military cyber operations, it is highly likely that they would want to press for interpretations of certain norms in ways that best suit their interests. An important illustration that is used throughout this book is the persistent rejection by the Western-allied military powers (led by the United States) of proposals by members of the Russian-led Shanghai Cooperation Or-ganisation on the need to agree on special written norms to govern cyber opera-tions. That most of the technical experts drawn from the Western states partici-pated in a parallel process that resulted in the adoption of the Tallinn Manual, without involving nations such as China or Russia, amply supports the argument made by Radziwill.11

Chapter 3 seeks to refute many of the exaggerated claims of cyber military capabilities, which the author argues have the capacity to diminish the serious-ness of the issue and to hinder efforts to secure a comprehensive international legal framework. The position taken by Radziwill in this chapter is: instead of uninformed scaremongering, which creates the false perception that law cannot catch up with cyber-technological advances, the better approach is to show by way of technical analysis that cyber operations can partially be accommodated by existing law. Another objective of this chapter is to offer a convincing basis for arguing that minimal, rather than revolutionary, reforms to current interna-tional law can address most of the seemingly futuristic challenges that presently confront it.

From the perspective of law meets technology, Chapter 4 makes for an enlightening read since it re-imagines certain foundational principles of inter-national law in the context of cyberspace, a non-physical yet very real domain where virtual warfare can be conducted. Using the concepts of sovereignty, terri-toriality and jurisdiction, Radziwill unpacks the very ideas that have long formed the basis of international relations and casts them in a new light, making it pos-sible to articulate a clear conceptual framework within which cyber-attacks may be accommodated. Given his stated aim to find imperfections in the law, it is un-surprising that he finds quite a number. This does not, however, cast any doubt on the methodology used. Instead, in comparison with what other scholars have argued, it illustrates the variety of views on an emerging subject.

11 Liivoja R and McCormack T, ‘Law in the virtual battlespace: The Tallinn Manual and the jus in bello’ Yearbook of International Humanitarian Law (2012), 45.

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The next two chapters, Chapter 5 and 6, take up the task of rigorously ana-lysing the doctrine of jus ad bellum (international law governing the use of force) and jus in bello (international law governing armed conflict). While acknowledging the application of both regimes to cyber operations, its principal focus is on the chinks in their armour, the imperfections that can be lawfully exploited by states confronted with cyber threats or other unwanted intrusions. Radziwill argues in Chapter 5 that there is no clear position in current international law regarding the question whether cyber-strikes mounted by independent individuals or non-state groups can reach the threshold of ‘armed attack’ within the meaning of Article 51 of the UN Charter.12 Also, he argues that it is less clear at what point such cyber operations may activate the right to exercise self-defence.

Chapter 7, on cyber-terrorism, considers a cumulative view of both jus ad bellum and jus in bello in the specific context of cyber-enabled terrorist attacks. It makes the case for the need, both as a matter of principle and institutional ef-ficiency, to distinguish treaty-regulated aspects of terrorism from those governed more generally by customary international law. The reason for this, argues Radzi-will, is that governments may deliberately conflate the two so as to conveniently designate as terrorism cyber operations that are essentially political, including hacktivism. Perhaps on this basis, the chapter eschews the debate on the crimi-nalisation of cyber-terrorism at the domestic level, which Radziwill argues may give rise to fragmentary standards that can undermine the universality of terror-ism offences. Conceding the difficulty of defining terrorism and taking account of its duality, this chapter views cyber-terrorism as a variable concept with dif-ferent elements depending on which specific treaty is implicated and also that, depending on the actors, different elements of international law apply differently. The most notable aspect of this chapter is the systematic examination of the at-tempts adopted under the auspices of the UN to expand the scope of current law to accommodate the unique aspects of cyber operations.

Chapter 8 focuses on the institutional capacity and weaknesses of the col-lective security regime, which is premised on the UN Charter, to deal with cyber-related threats. In this chapter, Radziwill takes on a more critical view of the con-temporary efforts to address the gaps in the international framework. Using the case studies of the UN and the North Atlantic Treaty Organisation, the author contends that the failure to properly respond to cyber threats can be explained by institutional aspects that hinder effective action. But he finds the majority

12 Article 51, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

Ivan Sang


of these problems to be attributable to poor coordination, under-utilisation of available resources, institutional inertia, and political power plays. An illustrative example from the introduction is the mistrust between the United States and other emerging superpowers regarding persistent opposition of the former to the Chinese-supported Russian proposal13 for a comprehensive treaty regulation of cyber-security aspects of sovereign state relations. To elaborate institutional defects in need of reform, Radziwill explains that because the collective security framework implies a reporting obligation to the UN Security Council, it can be anticipated that complaints will be raised among states of failure to report if, or when, attacks are launched in self-defence.

The main arguments advanced throughout the book and the reforms sug-gested as a way to fill the identified legal gaps are summarised in Chapter 9. It also analyses current and future implications of the research findings. Divided into two parts, this chapter uses the findings drawn from the various chapters to test the validity of the thesis statement and as a basis to map the way forward. The resulting findings confirm most of the logic on which Radziwill’s study, and other comparable work, is based: that is, there has been no express agreement as to which principles of international law apply to cyber-attacks; the legal meth-odology to be used in approaching cyber-attacks; the state practice (if any) that is relevant; the institutions responsible for handling cyber-threats and how they are to coordinate action amongst each other. It concludes by making the case for starting a process leading to the adoption by a broader constituency of states of a comprehensive document that stipulates specific norms governing inter-state relations in cyberspace. In this regard, he supports both the development of evo-lutive readings of existing rules that were designed to govern kinetic operations and the adoption of new rules to make up for the exploitable deficiencies and uncertainties of current law.

On the whole, Radziwill’s book contributes in a measured and constructive manner to the debate on the extent to which current law can accommodate and effectively address the challenges arising from inter-state interactions in cyber-space. Its greatest merit lies in the sober, concise and up-to-date analysis of inter-national cyber-incidents and how they have an impact on the development of the substantive law of cyber warfare. It is also noteworthy that Radziwill wades into the choppy waters of doctrinal dispute over certain deeply disputed questions of international law, including the threshold of cyber-armed-attack, direct participa-

13 Gady FS and Austin G, Russia, the United States and cyber diplomacy: Opening the doors, East West Institute, New York, 2010, 15.

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tion in cyber-hostilities and the standard of attribution as a basis for state respon-sibility. The conclusions reached by the author are sound and uncontroversial, based as they are on a comparative critique of existing positions. However, there are certain omissions in the book. For instance, in his presentation of the residual gaps and deficiencies in the current law, the author overlooks some nascent if not contestable norms of customary international law. Following this omission, Radziwill’s work can be criticised for focusing so much on what is not there that it ultimately ignores what is in the process of filling that gap. The significance of the evolving customary norms is not lost on other authors who argue that ‘it cannot be excluded that customary international law rules specific to cyber op-erations might be in the process of forming and eventually ripen.’14

The above demerit, however, is remedied to a significant extent by the fact that the book adopts an infrequently broad multi-disciplinary approach to analys-ing existing problems and, ultimately, the validity of the conclusions reached. In particular, Radziwill adopts a positivist politico-legal framework through which the norms relating to the use of force and humanitarian law are examined. This is augmented by a discussion of inter-related rules, which bear secondary impor-tance for the wider discourse. Unlike most of comparable literature on this point, it innovatively draws the elusive link between why states obey international law and how this influences the ordering of the state-centric matrix of international law. It recognises that attitudes of states are influenced by key aspects of natural law and that, while seemingly irrelevant, the violation of legal norms carries ad-verse political consequences.

14 Roscini, Cyber operations, 25.


Constitutional law of Kenya on devolution

By John Mutakha Kangu Strathmore University Press, Nairobi, 2015

Reviewed by Tom Kabau*

The adoption of the 2010 Constitution represented a fundamental para-digm shift in the structures of governance in Kenya. It exemplified a constitutional, legal and institutional shift from a highly centralised, top-

down and inequitable system of governance to a devolved government that has the objective of institutionalising bottom-up decision-making, equitable devel-opment and popular participation. Devolution has been the most fundamental pillar of the transition. Mutakha Kangu’s book provides a succinct and credible analysis of the most appropriate interpretative approach to give full effect to the objectives and values of devolution under Kenya’s new social contract.

In a sense, Kangu’s book is a trailblazer in Kenya’s devolution legal scholar-ship, since no other publication in existing literature has questioned the challeng-es and opportunities of the interpretation of the complex devolution provisions in the Constitution with such meticulousness, depth and intensity. Given that ‘de-volution is the most complex and least understood aspect of the Constitution’,1 the publication is a timely and essential reference material for legal scholars and practitioners, and law and policy-makers in national and county governments. In particular, it is anticipated that Kenya’s Judiciary will find the book a comprehen-sive and well-argued interpretative guide that will be helpful in filling legal and policy lacunas with regard to devolved governance. In reality, the interpretation of constitutional provisions on devolution will present judicial officers with the finest of what Ronald Dworkin refers to as ‘hard cases,’ which are essentially

1 Kangu JM, Constitutional law of Kenya on devolution, Strathmore University Press, Nairobi, 2015, 2.

* PhD(UniversityofHongKong),LLMandLLB(UniversityofNairobi).SeniorLecturerattheSchoolofLaw, JomoKenyattaUniversityofAgriculture andTechnology.Previously aResearch Fellow at Utrecht University, and a Transnational Law Summer Institute Fellow at King’s College London.

Tom Kabau


problematic matters that lack clear interpretative rules in the law.2 They will find, in Kangu’s exceptional book, a persuasive and convincing treatise on purposive interpretation as they seek to enforce, protect and promote constitutional provi-sions on devolved governance.

It may be queried why the case for a purposive interpretation of constitu-tional provisions on devolution is the central focus of Kangu’s treatise on the legal, policy and institutional framework of devolution. As Kangu aptly points out, ‘[i]nterpretation in law has concrete consequences in the real world and lives of human beings as legal words normally have profound effects … [and is, therefore, not] simply a playing with words.’3 In reality, as Conrad Bosire opines, the effectiveness of devolved governance is dependent upon ‘the constitutional interpretation and implementation of the devolved government objectives and principles by the relevant agencies.’4

Given the complexity and novelty of Kenya’s devolved system, which is likely to pose intergovernmental and institutional relation disputes, the book in-corporates insightful comparative lessons from the jurisprudence and practice of other non-centralised jurisdictions, particularly South Africa. The compara-tive analysis offers significant theoretical and practical lessons for Kenyan courts in their exercise of the purposive interpretation that may give full effect to the devolution provisions of Kenya’s new social contract.

Kangu’s work is premised on the view that ‘the Kenyan people adopted devolution as the central and most transformative aspect of the Constitution’ in order to eradicate centralism and its associated problems completely, and fully institutionalise, amongst other governance objectives, citizen participation and ‘equitable development, and the distribution of resources, opportunities and services.’5 On that basis, Kangu postulates the thesis that in order to give full effect to the devolved governance system, the interpretation of applicable con-stitutional provisions requires a purposive approach, which is a comprehensive and progressive interpretative method that ‘draws on textual, structural, contex-tual, historical and comparative elements.’6 Kangu’s thesis is explicitly clarified

2 Dworkin R, Taking rights seriously, Harvard University Press, Cambridge, 1978, 81. See also, Black-stone WT, ‘Justice and legal reasoning’ 18 William and Mary Law Review (1976), 321.

3 Kangu, Constitutional law of Kenya on devolution, 6. 4 Bosire C, ‘The constitutional and legal framework of devolved government and its relevance to

development in Kenya’ in Mbondenyi MK, Asaala EO, Kabau T and Waris A (eds), Human rights and democratic governance in Kenya: A post-2007 appraisal, Pretoria University Law Press, Pretoria, 2015, 212.

5 Kangu, Constitutional law of Kenya on devolution, 5. 6 Kangu, Constitutional law of Kenya on devolution, 5.

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in chapter one of the book, which introduces the concept of a purposive inter-pretation to the constitutional provisions on devolution, an argument that is the common thread that runs through the subsequent sections.

Chapter two of the book focuses on justifications and components of a purposive interpretation of constitutional provisions on devolution, and discuss-es adeptly the theoretical and practical aspects and implications of such an ap-proach. It summarises in the instructive Article 259 of the Constitution, on rules of its interpretation, as obligating a purposive construction of constitutional provisions, including those relating to devolution. The supremacy of constitu-tional provisions supersedes other laws and institutional systems within the State. However, since they are an expression of, and are derived from, the sovereignty of the Kenyan people, they are to be construed as subordinate to the constitu-ent power of the people, a fact that the author appreciates. As pointed out in the chapter, Kenya subscribes to the principle of constitutional supremacy as opposed to parliamentary sovereignty. On that basis, the author clarifies that the Judiciary is vested with the final authority in interpreting, enforcing, protecting and promoting constitutional provisions on devolution, and can even, rightly, entertain questions of law that have political dimensions.

As justified in the chapter, a purposive interpretation of constitutional pro-visions on devolution is indispensable since it has been incorporated, explicitly, in Article 259(1) of the Constitution, in addition to being implied in other con-stitutional clauses. The book offers well-argued justifications for a purposive ap-proach, which demonstrate that it is the method most appropriate for giving full effect to the purposes and values of the Constitution on devolution as a govern-ance structure that exemplifies the aspirations of the Kenyan people. It then aptly describes how a purposive interpretation can be achieved, through the use of intra-textual and extra-textual materials and instruments, which are well discussed.

Serious tensions, between the national and county governments, have been emerging with regard to their functions and powers. The book proposes a deci-sive and unambiguous interpretative approach to the effect that ‘county-empow-ering provisions must be interpreted liberally, broadly and generously in favour of the counties’ while ‘devolution intervention and limitation provisions’ require a narrow and restrictive interpretation.7 As suggested by the author, this is neces-sary in order to facilitate and promote the full institutionalisation of a devolved system of governance.

7 Kangu, Constitutional law of Kenya on devolution, 64.

Tom Kabau


In particular, echoing Ronald Dworkin’s interpretative theory, Kangu per-suasively calls upon Kenyan courts to realise that legal interpretation is not ‘a neutral concept but rather a utilitarian and egalitarian’ duty in which a decisive judiciary should define and promote the social and public good.8 However, one of the apparent limitations of the chapter is the author’s failure to critique other major theories and approaches to constitutional interpretation. The book would have been enriched even further with a concise outline and assessment of other theories and approaches, and, on that basis, pointed out the merits of a purpo-sive approach in relation to other methods.

In chapter three, Kangu incorporates some of the ideas postulated by the historical school of legal theory when he undertakes a chronological analysis of the political, economic, social and cultural factors that contributed to the Kenyan system of devolution, and recognises that they are indispensable components of the extra-textual context that is required in a purposive interpretation of con-stitutional clauses on devolution. The historical school argues, in part, that law evolves from the experiences and spirit of the people.9

Chapter four espouses the values, objectives and principles that should not be subverted by the courts in their purposive interpretation of constitutional provisions on devolution. An interpretative approach that is protective of core constitutional national values and principles has already been endorsed by the Supreme Court of Kenya in the Speaker of the Senate and Another v Attorney General and 4 Others case.10 Kangu argues innovatively that devolution is part of the basic structure of the Constitution, and, through an analysis of the rationale of the concept of basic structure and its application in comparative jurisdictions, makes the bold and potentially controversial assertion that devolution is part of ‘the “irrevocable” or “eternity clauses” of the Constitution.’11 As such, Kangu seems to advance the questionable theory that, although the Constitution lacks any express clauses on non-amendable provisions, it is implied that devolution, as part of the basic structure, cannot be eliminated from the Constitution through amendments and alterations.

8 Kangu, Constitutional law of Kenya on devolution, 64. Dworkin argues that even in the United States, the courts are not neutral actors in interpreting the Constitution. He observes that ‘a court that under-takes the burden of applying … [constitutional] clauses fully as law must be an activist court, in the sense that it must be prepared to frame and answer questions of political morality.’ Dworkin, Taking rights seriously, 147.

9 See, for instance, Savigny FK, ‘System of modern Roman law’ (1840) in Freeman MDA, Lloyd’s introduction to jurisprudence, 8ed, Sweet &Maxwell, London, 2008, 1096-1100.

10 Speaker of the Senate and Another v Attorney General and 4 Others [2013] eKLR, para 195. 11 Kangu, Constitutional law of Kenya on devolution, 108.

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The view by Kangu can be challenged on the basis of the constituent power of the people, which implies that their power to amend, alter and replace even the entire Constitution, or any of its provisions, cannot be limited, even constitu-tionally. This is a view that was endorsed in the Njoya and Others v Attorney-General and Others case,12 and has also been postulated by eminent legal theorists such as Carl Schmitt.13 It is arguable that a constitutional amendment, alteration or re-placement that incorporates a referendum by the Kenyan people, the custodians of the constituent power, may eliminate the devolution clauses from the Consti-tution, or vary them to any extent.

The chapter proceeds to discuss instructively how constitutional devolution provisions should be interpreted to promote democratic governance, account-ability, popular participation and self-governance. The manner in which the Con-stitution, through devolution, entrenches the concept of equity and distributive justice in Kenya’s development process, and the interpretative approaches that should be adopted to promote such objectives, is also scrutinised and clarified. The author specifically endorses full realisation, through devolution, of the con-stitutional affirmative action for disadvantaged areas and groups for purposes of equity and social justice, a concern that courts and policy-makers should be alive to. Such affirmative action is appropriate and is consistent with John Rawls dif-ference principle, articulated as an integral concept of distributive justice, in which opportunities of the least advantaged are improved by those that are more ad-vantaged within the society.14

Chapter five clarifies the composition of county governments and their institutions, in addition to the powers and functions of such governments. While so doing, Kangu makes a case for purposive interpretation that promotes the institutional autonomy of the counties, in addition to the enhancement of demo-cratic governance, equitable representation and greater public participation in the affairs of county governments. Since there is inherent uncertainty in the distri-bution of functions and powers between the national and county governments, chapter six prescribes purposive interpretation as the most appropriate mecha-

12 Emphasising the unlimited capacity of the Kenyan people to replace the previous Constitution, the High Court observed that ‘[t]he most important attribute of a sovereign people is their possession of the constituent power … The Constitution is supreme because it is made by they in whom the sovereign power is reposed, the people themselves.’ Njoya and 6 Others v Attorney-General and 3 Others [2008] 2 KLR (EP) 680.

13 See, Schmitt C, Constitutional theory, Seitzer J (trans and ed), Duke University Press, Durham, 2008, 64-65 and 132.

14 Rawls J, A Theory of justice, Harvard University Press, Cambridge, 1971, 95.

Tom Kabau


nism of clarifying the exclusive, concurrent and residual functions and powers of the two levels of government on a case-by-case basis. The author deviates from the traditional Hohfeldian conceptualisation of rights as correlating with duties when pointing out, correctly, that the ‘intersection of powers and functions with the Bill of Rights provisions’ transforms then into binding and justiciable duties of both the national and county governments.15 However, there is no analysis of emerging realities such as continued incapacity, misplaced priorities and rampant corruption within the county governments, which may negate the case for an interpretative approach tilted in favour of the powers and functions of such governments.

In this chapter, Kangu also aptly points out that any interpretation of the fiscal devolution provisions has to consider that the counties must be sufficiently and equitably financed, and have relative monetary autonomy, in order to fulfil their developmental responsibilities. The nature, extent and justification of the politicised, controversial and divisive obligation incumbent upon the national government to share nationally raised revenue with the counties is credibly ex-amined, including its vertical and horizontal dimensions. Despite the national and county governments being distinct, the justification, extent and practicality of the indispensable supervision mandate of county governments by the na-tional one is discussed and appreciated in chapter eight. By appreciating that limited supervision of the county governments by the national government is necessary, in some circumstances such as to ensure efficient service delivery, to establish sound fiscal management systems, and to preserve national security, Kangu comes out as not being uncritically biased in favour of county govern-ments while prescribing the purposive interpretative approach.

Chapter nine makes a case for purposive interpretation of the constitution-al framework for cooperation between the two levels of government, including the mode of conducting intergovernmental relations and resolving disputes. This is necessary since, despite the national and county governments being relatively distinct, they are also extremely interdependent, and the nature of such an incon-gruous relationship is well clarified in the book. It is specifically explained that in order to minimise disputes, cooperative intergovernmental activities should be interpreted as requiring to be executed with respect for the functional and institutional integrity of each level of government. For instance, the author en-

15 Kangu, Constitutional law of Kenya on devolution, 213. For the correlation of rights with duties, and du-ties as implying a claim, see, Hohfeld WN, ‘Some fundamental legal conceptions as applied in judicial reasoning’ 23 Yale Law Journal (1913), 31-2.

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dorses convincingly the view of the High Court in International Legal Consultancy Group v Senate and Clerk of the Senate,16 to the effect that the Senate should act with restraint while exercising its oversight powers over county governments, and particularly that it should not summon governors in an arbitrary and capricious manner.17 The view that the County Development Boards, chaired by Senators and established through an amendment to the County Government Act,18 are unconstitutional, undesirable and an obstacle to full devolution, as they encroach on county governments powers and functions, is accurate and informative on the manner in which oversight mandates should be undertaken in the future.

In chapter ten, it is clarified that the role of the Senate needs to be inter-preted, consistently, as that of a chamber of Parliament that institutionalises the constitutional concept of shared rule, by offering a forum for the interests of the counties to be considered in legislative and policy-making activities executed at the national government level. In particular, the book explains convincingly that failure to follow the appropriate procedure while debating a bill concerning the counties, which is one that permits proper participation by the Senate, the courts have jurisdiction, in such a case, to declare the procedure as unconstitutional without violating the cardinal principle of separation of powers.

The interpretation of obligations and tasks in the management of the com-plex and problematic issue of transition to devolved government from the pre-vious highly centralised one is examined in chapter eleven. As Kangu explains, the objective of the transitional clauses is to facilitate the full operation of the permanent devolution provisions. As such, the author informatively points out that the interpretation of transitional clauses should facilitate the operationalisa-tion of permanent provisions, with the latter superseding the former in case of inconsistency. Since the transition can potentially disrupt governance and service delivery, the interpretation of transition clauses should avoid such problems. In addition, it is pointed out that laws under the previous constitutional order must be interpreted in a manner that allows them to conform to the 2010 Constitution.

The chapter also scrutinises the deeply contentious issue of the function of the provincial administration, a hallmark of the previous centralised system, in the new devolved government structure. As Kangu correctly points out, the provincial administration system was not to be phased out, but was to be re-structured to conform to the devolved governance system and, therefore, its

16 [2014] eKLR.17 International Legal Consultancy Group v Senate and Clerk of the Senate [2014] eKLR, para 67. 18 Act No. 13 of 2014.

Tom Kabau


functions must be interpreted as such. It is on that basis that the publication argues that any legislation or executive action that grants the restructured provin-cial administration powers inconsistent with those of the county government is unconstitutional and invalid. In that regard, the nature of the unconstitutionality of provisions of the National Government Co-ordination Act19 and the Chiefs’ Act20 is well enumerated.

While reading chapter twelve, the concluding section of the book, it is quite impossible to argue that Kangu has failed to address the objectives of the book. In the preceding sections, the author has convincingly justified that a purposive interpretation of the constitutional provisions on devolution provides the most comprehensive and coherent interpretative approach necessary to give full effect to the transformative agenda of devolved governance. The author undertakes an extensive analysis and critique of emerging Kenyan case law in the various chapters and, therefore, renders the book highly authoritative on the appropri-ate interpretative approach on constitutional devolution provisions. In addition, already aware of the limited local judicial precedents, as devolution is a relatively novel governance concept in Kenya, the book aptly demonstrates that foreign case law, particularly South African legal precedents, are useful in filling emerging jurisprudential lacunae.

In sum, there is the conviction that the author put immense effort to dis-cuss comprehensively every constitutional clause on devolution that may require interpretation, and justify the basis for a purposive approach in the interpretative task. It is apparent that the publication benefits immensely from Kangu’s prac-tical experiences in his exceptional career as a distinguished constitutional law scholar and practitioner. The book has certainly not addressed all the probable interpretative challenges (on the nature and scope of devolution, and the powers and functions of devolved governments) that will keep on emerging. In addition, some views may be challenged from certain theoretical perspectives and political experiences. However, there is no doubt that the publication is a compelling and well-argued magnum opus on devolution that will be an indispensable reference for judicial officers, legal practitioners, policy makers, government officials, and students of law and governance in Kenya.

19 Act No. 1 of 2013. 20 Chapter 128, Laws of Kenya.


Kenya-South Africa dialogue on devolution

Nico Steytler and Yash Pal Ghai (eds); Juta Publishers (2015)

Reviewed by Teddy Musiga*

Rarely do we find books that present a dialogue addressing issues of mutual concern between two countries. Often, books present soliloquies where each chapter is independent of the other and rarely are comparative studies of similar experiences laid out side by side in the same book.

Kenya-South Africa dialogue on devolution does this in a bid to draw insights from the Kenyan and South African experiences with devolution and to learn from each other. The book has been presented along thematic lines. It addresses themes such as the levels of devolution units, their numbers, size and character; political structures and institutions; powers and functions; finances; metropoli-tan governance, national cohesion and intergovernmental relations; marginalised communities and groups; and implementation of devolution.

Throughout those themes, the book speaks to the realities, opportunities, challenges and even threats to decentralised government as experienced in South Africa and Kenya. Though Kenya refers to its system of decentralisation as ‘de-volution’, South Africa refers to it as provincial and local governance or other-wise as multi-level governance.1

The book is edited by two leading scholars in constitutional law from Kenya and South Africa, Nico Steytler and Yash Pal Ghai, both of whom have been intimately involved in crafting and advocating for the implementation of their respective countries’ constitutions.

1 Perhaps one of the main striking differences in the devolved system of governance between Kenya and South Africa, is that while Kenya has only one level of government below the national government (the county government), South Africa has two levels (the provincial and local governments).

* TeddyMusigaisanadvocateoftheHighCourtofKenya.HeisanAssistantLawReporterattheNationalCouncilforLawReporting(KenyaLaw).HeholdsaMasterofPublicPolicy&Administration(KenyattaUniversity),LL.B(MoiUniversity)andaDiplomainLaw(KenyaSchool of Law).

Teddy Musiga


The book brings together eighteen other contributors; nine from each country. This edited collection is also exceptional as the contributors are drawn from among law, economics and public administration practitioners and academ-ics and thus presents a multidisciplinary treatment of devolution in both Kenya and South Africa.

The book features 20 chapters. The ‘dialogue’ is presented by a comparison of the systems of decentralisation of the powers and functions of the state to lower levels in South Africa and Kenya. Whereas, the system of decentralisation has been implemented in South Africa in slightly over two decades, in Kenya it was only introduced six years ago following the promulgation of the new Con-stitution of Kenya in August 2010.

Across the chapters, several aspects of devolution are covered. For instance the book compares and examines the formal rules and structures of devolution as well as the functioning of the systems in both countries.

Yash Pal Ghai’s opening chapter on ‘South African and Kenyan systems of devolution: A comparison’ sets the tone by giving a comparison of the two coun-tries in their quest to implement decentralised government. Ghai goes ahead to discuss other forms of decentralised governments such as the differences in provincial government (South Africa), devolution (Kenya) and how devolution is implemented in the United Kingdom to describe the relationship between Northern Ireland, Scotland, Wales and England. The chapter is instructive in the debates on constitution and state building across the African continent.

Chapters 2 and 3 provide historical perspectives on devolution in South Af-rica and Kenya. Chapter 2, ‘Fudging federalism: Devolution and peace-making in South Africa’s transition from apartheid to a constitutional democratic state’ by Derrick Powell, sketches the historical evolution and structure of the apartheid state on the eve of the political transition in 1990. It also examines the structure of the process of political negotiations and constitution making in the period 1990-1996 and presents in more detail the various dimensions of the debate about federalism and devolution.

The second chapter also discusses the key features of cooperative govern-ment. Notably, cooperative government emerged as the best formula that struck the right balance between proponents of a unitary state and those of devolution. It allowed each of those groups to claim that the Constitution reflected their respective positions.

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Yash Pal Ghai, in Chapter 3 ‘Devolution in Kenya: Background and objec-tives’ traces the historical incidents leading to the dawn of devolution in 2010. It does this by revisiting the demands and rationale for the clamour for devolution through the various epochs. As such the chapter discusses how ethnicity and ethnic politics have largely contributed in the debate on devolution. Ghai here shows how devolution has remained a major feature in the construction of the Kenyan state from the time of negotiations for the independence of Kenya, the negotiation of the 1963 independence constitution with its concepts of majimbo-ism and regionalism, and how regionalism did not survive long after independ-ence. It was only with the promulgation of the Constitution of Kenya, 2010 that devolution is revived. Ghai concludes this Chapter by contrasting majimbo and devolution as implemented in Kenya.

The next two chapters interrogate how boundary determination impacts the social divisions of the respective countries. Chapter 4 by Yonatan Fessha and Jaap de Visser, ‘Drawing non-racial, non-ethnic boundaries in South Africa’ examines the interplay between the size and character of the devolved units and the objectives of devolution in South Africa. It particularly looks at how size and character of the devolved units serve the purpose and objectives of devolution and how they affect the functioning of a devolved state.

Abraham Rugo Muriu’s Chapter 5 - ‘Number, size and character of coun-ties in Kenya’ analyses the extent to which the structure of devolution serves the objectives it was intended for. In particular, it looks at the impact of having only two levels of government – the national and county governments – and the consequences of having 47 counties. It also discusses whether the boundaries of the counties have given them a particular character. He concludes that basing the county boundaries on the old colonial districts has certainly given most of the new counties an ethnic character.

The next two sets of comparisons, in Chapters 6 and 7, turn their focus to devolution and the political life of South Africa and Kenya. In Chapter 6 - ‘Devolved political structures in South Africa: A void waiting to be filled by sub national politics’, Yonatan Fessha considers the role and impact of the devolved political structures on the functioning of the multi-sphere system of govern-ment. He argues that the South African Constitution gives an impression of devolved political structures that allows multiples centres of decision making. However, that is not the case in reality. Fessha sees the promise of a multi-sphere system of devolved political structures, each directly accountable to the sub na-tional electorate, being significantly undermined by a dominant party which ig-

Teddy Musiga


nores that system. He argues that so far, the ruling party (ANC) in South Africa controls most of the devolved political structures in all the three spheres of government. He states that ANC’s centralised system of governance allows little space for provincial and municipal individuality and therefore urges that a domi-nant party committed to the value of multi-sphere government should leave room for its regional branches to develop sub national political structures that defend and advance local interests.

Conrad Bosire, in Chapter 7 ‘Political structures and politics of counties in Kenya’, presents the Kenyan comparison. Here, Bosire lays out the broad political and institutional context in which county political structures are set to operate by looking at the specific issues which define the institutional and politi-cal governance of the counties. This Chapter also discusses the institutional and political structures of county governments against the broad socio economic environment in which they operate. He commences by stating that other than the previous majimbo system at independence, Kenya has not had any institutional or political experience with regards to devolution. The majimbo system was replaced by a centralised system of governance in which the central government institu-tions took over all spheres of public governance. As a result, it led to a culture of centralised governance and an almost non-existent culture of sub national poli-tics. He therefore argues that such a centralised culture is likely to infiltrate the county governance, but that this can be curbed when county governments claim their rightful space. Bosire then concludes by stating that the quest by counties to claim their space is likely to be inhibited by a number of factors such as capac-ity constraints, transition and lack of resources. Those factors are likely to slow down the uptake of county functions and therefore hinder a smooth transition to county governance.

Continuing in the same comparative motif, the following two chapters, 8 and 9, reflect on the powers and functions of the respective devolved units. Jaap de Visser and Annette May present the intricate division of functions and powers between the national, provincial and local governments in South Africa. The au-thors analyse the constitutional framework for sub national powers, and the role of the courts in resolving disputes over the division of powers between the three spheres of government, paying particular attention to the impact of justiciable socio economic rights on the functions and powers of devolved units.

In his turn, Conrad Bosire offers the comparative analysis for Kenya. The chapter discusses the constitutional, political and institutional factors that influ-ence the approach to county powers and functions. It also examines the consti-

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tutional framework for county powers and approaches to interpreting them and concludes by assessing the implementation. Here, Bosire argues that the effec-tiveness of devolution is largely dependent on the nature and extent of powers exercised by the counties and the functions they perform.

A critical part of decentralised government is managing finances and the intergovernmental relations that facilitate sound public finance management. Chapter 10 by Bogani Khumalo, Ghalieb Dawood and Jugal Mahabir titled, ‘South Africa’s intergovernmental fiscal relations system’ describes the financing system for provinces and municipalities in South Africa and the socio-economic and political factors that influenced its design. Specifically, the chapter highlights the expenditure assignments to provincial and local government, the extent to which taxation powers are devolved to these sub national governments to sup-port such expenditures, and how the intergovernmental transfer in the country plays a crucial role in supplementing these taxation powers. The chapter con-cludes by assessing the monitoring and evaluation of the financial performance of the devolved units in South Africa.

Njeru Kirira’s subsequent Chapter 11, ‘Financing counties in Kenya’ ad-dresses the question of how and to what extent the Constitution of Kenya, 2010 has changed the financing of the new devolved units. Kirira discusses how the sources of revenue (own revenue or transfers) allow counties to make autono-mous decisions vital to the purposes of devolution, while making them account-able to their constituencies. Kirira also discusses the mechanisms and processes that are to be followed to ensure the equitable distribution to counties of revenue raised nationally. Of particular importance to Kenya’s public discourse, Kirira considers whether expenditure decisions are autonomous, and if corruptly or poorly done, the remedial measures, if any, available to the central government.

Both the Kenyan and South African socio-economic contexts have given rise to metropolitan areas which, by their nature, present unique challenges and opportunities for devolved governance. Chapter 12 by Philip van Ryneveld on ‘Governing metropolitan areas in South Africa’ shows how metropolitan govern-ment in South Africa has developed overtime, describing the main constitutional and legislative processes that led to metropolitan governments emerging in their present form. It also looks at the intergovernmental institutional arrangements as they relate to metropolitan government and concludes by highlighting the key challenges facing the metropolitan system.

Teddy Musiga


Jill Cottrell Ghai’s comparative treatment of Kenyan metropolitan govern-ance is innovative as the Constitution of Kenya only provides for two levels of government (national and county). Jill Cottrell Ghai refers to Kenyan metro-politan and urban areas as ‘the third tier’. Against the background of the earlier discussion in Chapter 5 on how Kenya’s devolved units largely took on the co-lonial district boundaries, Jill Cottrell Ghai discusses the challenges to coherent planning and management in instances where a de facto metropolitan area covers more than one county, as is the case with Nairobi. On the other hand, if the metropolitan area coincides with the county boundaries, the Chapter considers whether such a county has the necessary powers and resources to deal with the problems of agglomeration.

The Chapter also discusses the adequacy of the constitutional and legal regime for urban governance. Cottrell Ghai concludes that unlike South Africa’s, Kenya’s Constitution does not provide for the role and governance of a ‘third tier’ below the county level and thus there will be need for in depth innovation in enacting a national legislation that deals with the governance and management of urban areas and cities.

National cohesion and intergovernmental relations is the focus of the dis-cussions in Chapters 14 and 15. Nico Steytler begins in Chapter 14 by discussing historical concerns and fears that were deemed to be the negative consequenc-es of devolution. For instance there was a concern that provinces would work against national political cohesion, fanning the fires of separatism and entrench-ing ethnic enclaves. A second fear was that since key social functions were to be shared by national government and provinces, devolution would lead to a lack of cohesion in governance and result in poor service delivery to citizens. Steytler shows how South Africa has successfully addressed those fears by ensuring inclu-sion and cohesion through the national legislature and the executive. Specifically, it has done so by ensuring, first; coherent government where there is legislative and executive cooperation. Second, it has done so through social solidarity by en-suring prevention of provincial and local state failure using various mechanisms.

Conrad Bosire follows in Chapter 16 with the comparative Kenyan case study. The chapter considers the constitutional mechanisms for promoting na-tional cohesion. One such example is the checks and balances on the presidential powers to curb executive dominance. The Constitution also has provisions which seek to ensure that the composition of legislative and executive structures re-flects the country’s diversity. Bosire argues here that the political and governance structures established by the Constitution of Kenya, 2010 demand a fundamen-

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tal transformation in the manner in which public institutions exercise their power and relate to one another.

In Chapter 16, Zemelak Ayele and Phindile Ntliziywana discuss the inclu-sion of marginalised groups. Ayele and Ntliziywana reflect on the exclusion fac-tors in South Africa and identify social groups that are regarded as politically, culturally and socially marginalised. In arguing that devolution in South Africa has indeed allowed for their inclusion, they discuss how the devolved system territorially accommodates marginalised linguistic and cultural communities and finally, examines forms of non-territorial accommodation.

Korir Sing’Oei in Chapter 17 assesses the extent to which Kenya’s constitu-tional inclusionary intent is sustained and advanced. Sing’Oei shows how empiri-cal evidence that has emerged one year into the implementation of devolution in Kenya challenges that constitutional vision. He concludes by stating that while devolution affords minority groups numerous opportunities for reversing years of under-inclusion in social, economic and political forums, devolved units will be an optimal site for such a transformation only if national level institutions and policies crystallise broad constitutional principles into practical obligations and programmes.

The last set of comparative studies focus on implementation of devolu-tion. Derek Powell and Phindile Ntliziywana in Chapter 18 examines the im-plementation of the system of provincial and local government as part of the political settlement that abolished apartheid and introduced a constitutional and democratic state in South Africa. Powell and Ntliziywana identify three features of this implementation process. First, the layer of transition mechanisms created to manage the establishment of the new devolved structures. This sketches a broad framework for analysing implementation as a distinctive transition event. Second, the stage at which national government took over the implementation. This looks at how the implementation process was structured and organised. Third, the challenge of harmonising the demands of transition management and institutional development has remained a key feature. This extracts lessons from the South African experience that might be helpful to Kenya.

Chapter 19 by Peter Wanyande discusses the implementation of Kenya’s devolved system of government, highlighting in particular both the challenges that have been experienced in this regard and the safeguards that exist to ad-dress them. It presents four main arguments. First, that the promulgation of the Constitution does not guarantee its effective implementation. Secondly, imple-

Teddy Musiga


mentation is not just a technical legislative matter involving the passage and en-forcement of laws but a process subject to political dynamics. Third, it discusses successes and challenges that have arisen in implementing the Constitution effec-tively. Fourthly, it discusses the fears and risks that implementation of devolution may be derailed and attempts to give the safeguards against that outcome.

Nico Steytler and Yash Pal Ghai conclude the book with ‘Devolution: What can Kenya learn from South Africa’. This last chapter presents a summative com-parison of the objectives of devolution in both countries and how it is being implemented in both countries. It observes that in many ways, Kenya borrowed heavily from South Africa in designing devolution. It brings out best practices that have come out of the devolution experience in South Africa which Kenya may borrow from and acknowledges that Kenya continues to benefit from juris-prudence from the South African courts.

Overall, the book marks a deep appreciation of devolution as a form of decentralised governance. It carefully and skilfully unpacks the concept of de-volution as one of the many innovations of the Constitution of Kenya, 2010. The running thread that weaves throughout the entire book carefully unpacks and breaks down the objectives and rationale of devolution in a simplified and systematic manner. It encourages the reader to reflect on the interplay of the multiplicity of actors in devolution.

The book is rich in content, inspiring in vision and empowering of the peo-ple. Particularly, the book has examined various aspects of how devolution can be used to enhance socio-economic development.2

Generally, implementation of devolution in Kenya has significantly changed Kenya’s governance system. The book has therefore succeeded in addressing the many challenges that may emerge during the implementation process. It has at-tempted to fill in some gaps that may not have been addressed by the Constitu-tion or even legislation.3 For instance, one such gap is on how to govern metro-politan and urban areas. The book has commendably attempted to innovatively address those issues and as such is ahead of the law.

The contributors of the book appreciate that devolution is not strictly a le-gal topic but one that cuts across the broad and general governance sector. They

2 For instance the chapters on national cohesion and intergovernmental relations (See chapters 14 and 15) and those of inclusion of marginalised communities/ groups demonstrate that fact (see chapters 16 and 17)

3 See Chapters 12 and 13 on South Africa and Kenya respectively (Pages 250 – 277).

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therefore approach the concept from a multi-disciplinary perspective. The multi disciplinary nature of the book presents the concept of devolution in a way that appeals to diverse audiences at the same time. For instance, chapters 10 and 11 generally address the fiscal implications of devolution in both Kenya and South Africa.

The value of the book lies in how the experience of the 20 years of de-volution in South Africa can assist in the development of devolution in Kenya, given that the Kenyan Constitution liberally borrowed from the South African. The book will also be of particular value to countries across the world that are in the process of reviewing their governance structures with a view to introducing decentralisation of governance.

The editorial care of the book is commendable. Throughout the 20 chapters, the book contains elaborate notes, a selected bibliography and a very useful index. The reader also benefits from the cross-referencing where similar ideas are being discussed across various chapters.

In conclusion, the book is very instructive and is recommended to all government officers, legal practitioners, judicial officers, governance experts, law students, public administrators, policy makers and every person interested in understanding devolution as a system of governance.

STRATHMORE LAW JOURNAL

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