Elvis Mogesa Ongiri*

We are pleased to announce that the fourth volume of the Kabarak Law Review will be published soon. This forthcoming volume is centred in the theme: 'Reflecting on 25 years of the African Union Constitutive Act' and features a wide array of papers on African Union law or more aptly, the Public law of Africa. The volume also features discussions on police accountability in Kenya and Cameroon, spousal rape in Kenya, the 2025 climate change advisory opinions from the Inter-American Court of Human Rights and the International Court of Justice and reviews of notable cases from Kenyan courts. In total, volume four has a total of twelve (12) manuscripts. The volume also features two stellar forewords by Judge Ben Kioko and Prof John Osogo Ambani. Here are the Table of Contents and abstracts:

Foreword by Judge Ben Kioko

Foreword by the Dean

Editorial

Issue theme articles

1. Anopa Tamuka, Between supranationality and intergovernmentalism: Re-evaluating the relationship between the African Union and regional economic communities

2. Raphael Okochil, Strategic silence? The AU and south-south solidarity in the Israel-Palestine question

3. Ben Kioko, The search for African Unity: A dream deferred

4. Hajer Gueldich, Reflecting on 25 years of the African Union Constitutive Act: Drafting history, legal philosophy and broad objects of the renewal of Africa's continental body

5. Don Deya, Reflecting on 25 years of the AU Constitutive Act: Unconstitutional changes of government

General articles

6. Daniel Chemorei, Beyond the vows: Deconstructing the legal treatment of spousal rape in Kenya

Honouring Our Elders

7. Sarah Muhonja, 'Don't agonise, organise': Analysing modern-day Pan-Africanist thought through Tajudeen Abdul-Raheem

Kianjokoma Brothers Tribute

8. Eugène Pascal Parfait and Arsène Stéphane Zindi, Insights into the realities of police custody and remand to custody in Cameroon

9. James Mulei, A conversation with Tekin Saeko: From Kianjokoma to Kajiado, police brutality and the cross-border crisis of accountability

Case Reviews

10. Ana Cristina Vasquez, Climate justice unpacked: Breaking down the 2025 Inter-American Court of Human Rights and International Court of Justice advisory opinions on environment, human rights and state obligations

11. Harrison Otieno Mbori, Proportionality on the 'lite': The Kenyan Supreme Court's fatalism in the Fatma Athman Abud (FAAF) case

12. Daniel Ominde, The resuscitation of criminal defamation in Kenya and the ensuing consequences: An incisive examination of Jacqueline Okuta vs AG vis-à-vis BAKE vs AG

Abstracts

  • 1. Anopa Tamuka, Between supranationality and intergovernmentalism: Re-evaluating the relationship between the African Union and regional economic communities

The Casablanca-Monrovia debate outlined two possible paths for African regional development. These were: pursuing regional integration through a supranational organisation or fostering regional cooperation via an intergovernmental framework. This raises an important question about the relationship between Regional Economic Communities (RECs) and the African Union (AU). In this article, I argue that direct control of RECs by the AU is not a practical solution to this issue. Through a thorough historical and legal analysis of regional development in Africa, I illustrate that the trajectory of regional economic development has always favoured an intergovernmental relationship characterised by subsidiarity and complementarity between the RECs and the AU. Historically, RECs in Africa were never designed to be under direct oversight. Instead, a relationship based on subsidiarity and complementarity was and is preferred. Thus, I propose the African Continental Free Trade Area Agreement as a foundational model for establishing a robust framework for the REC-AU relationship. While not perfect, it recognises the region-specific interests of RECs and is sufficiently flexible to accommodate them, yet concrete enough to define the relationship.

Keywords: subsidiarity, direct control, Regional Economic Communities, African Union, African Continental Free Trade Area Agreement

  • 2. Raphael Okochil, Strategic silence? The AU and south-south solidarity in the Israel-Palestine question

This article critically evaluates the African Union's (AU) response to the Israel-Palestine conflict, interrogating whether its foreign policy exemplifies the values of Pan-Africanism, south-south cooperation (or solidarity), and human rights as enunciated in the AU's Constitutive Act. The AU's foundational principles entrench respect for human rights and solidarity, yet a significant gap exists between these normative commitments and its diplomatic practice regarding the Palestinian cause. Based on a qualitative analysis of AU communiqués, summit resolutions, and historical records, this study contrasts the AU's current posture with that of its more vocally aligned predecessor, the Organisation of African Unity (OAU). The article argues that the AU's strategic silence is not a position of principled neutrality but a calculated consequence of internal fragmentation among member states, the securitisation of foreign policy, and powerful external geopolitical pressures. This trend erodes the AU's historical commitment to south-south cooperation and undermines its moral authority on the global stage. The piece concludes by proposing concrete pathways toward a more coherent and principled AU policy, including the robust use of Palestine's existing observer status and the appointment of a Special Envoy to revitalise African diplomatic engagement.

Keywords: African Union, Israel-Palestine conflict, Pan-Africanism, south-south cooperation, foreign policy

  • 3. Ben Kioko, The search for African Unity: A dream deferred

These reflections are based on a presentation made by Judge Ben Kioko during the International Law Month webinar on Reflecting on 25 years of the African Union Constitutive Act, organised by the Kabarak University Press on 7 August 2025. The essay discusses the two foundational African legal instruments – the Constitutive Act of the African Union and the Organisation of African Unity Charter noting the reasons that necessitated the change from the latter to the former. This insider relooking also highlights some aspects of the process of this change and the main issues or challenges, including during the early implementation of the Constitutive Act. It will also share some perspectives on the aborted processes for a Union Government and African Union Authority from 2005 to 2013.

Keywords: OAU Charter, AU Constitutive Act, prospected Union Government; prospected African Union Authority

  • 4. Hajer Gueldich, Reflecting on 25 years of the African Union Constitutive Act: Drafting history, legal philosophy and broad objects of the renewal of Africa's continental body

This reflection by Prof Hajer Gueldich, delivered during Kabarak University Press's International Law Month, 2025 revisits the African Union Constitutive Act twenty-five years after its adoption. It traces the hopes and contradictions that have shaped the AU's legal and institutional journey since Lomé. The Constitutive Act is presented not simply as a treaty, but as a bold statement of Africa's determination to imagine a different future, one grounded in non-indifference to atrocities, a commitment to democratic governance, and an integrated approach to peace and development. Gueldich reflects on the Act's unique innovations. Moreso its influence on global legal norms, and the ways Africa has defined its own place in international law through instruments such as the African Charter on Democracy and the AU Transitional Justice Policy. At the same time, she acknowledges the difficult realities of coups, insecurity, and weakened political will that threaten this vision. The reflection ends with a call to action – that the AU's renewal must be shared with citizens and the wider pan-African community if the promise of a peaceful, just, and people-driven Africa is to be realised.

Keywords: Constitutive Act of the African Union, 25th anniversary, International Law Month

  • 5. Don Deya, Reflecting on 25 years of the AU Constitutive Act: Unconstitutional changes of government

This essay is a write-up of the oral reflections by Donald Deya on twenty-five years of the African Union (AU) Constitutive Act, interrogating its achievements, limitations, and the reforms necessary to revitalise continental governance. It delineates a broad historical and normative trajectory, from the transition from the Organisation of African Unity (OAU) to the AU, to the development of the norms, institutions, and practices governing unconstitutional changes of government. This essay argues that the AU's credibility has been steadily eroded by inconsistent implementation of its own standards. The AU has made significant progress in norm-setting and institutional design. This has included the adoption of the African Charter on Democracy, Elections and Governance and the establishment of the Peace and Security Council. However, it has struggled to address constitutional manipulation by incumbents with the same vigour applied to military coups. As global democratic recession, and weakened continental institutions intensify political instability, the essay calls for a repoliticised AU and procedural reforms that enable early and principled intervention. Ultimately, it argues that addressing both military and civilian coups with consistency and courage is essential if the AU is to reclaim moral authority and advance democratic governance on the continent.

Keywords: Constitutive Act of the African Union, International Law Month, democratic governance, political courage

  • 6. Daniel Chemorei, Beyond the vows: Deconstructing the legal treatment of spousal rape in Kenya

This paper examines the effects of Kenya's exemption of spouses from the definition of rape under Section 43(5) of the Sexual Offences Act. While the law criminalises rape, it denies that possibility within marriage, reflecting deeper assumptions about consent, that once given, it cannot be withdrawn. Building on Jacques Derrida's critique of hierarchical structures, the paper shows how the law treats marital consent through rigid binaries, such as consent and refusal, husband and wife, that ultimately mask a woman's capacity to withdraw consent. Further, Gayatri Spivak's work on subalternity is used to show how the married woman, though formally present in law, is denied meaningful recognition when she attempts to speak against sexual violence in marriage. Rather than treating legal reform as a matter of updating language alone, the paper calls for a broader shift in how the law understands consent: as something ongoing and situated. It ends by proposing legal and interpretive strategies that make room for voices that have long been erased or ignored.

Keywords: Marital rape, consent, subaltern thought, deconstruction, sexual offences

  • 7. Sarah Muhonja, 'Don't agonise, organise': Analysing modern-day Pan-Africanist thought through Tajudeen Abdul-Raheem

This paper examines the Pan-African legal and political thought of Tajudeen Abdul-Raheem (1961-2009), analysing how his vision offers critical insights for contemporary African legal systems and governance reform. Drawing from extensive archival research and analysis of his institutional leadership, this study positions Abdul-Raheem as an important figure who translated Pan-African ideals into practical frameworks for legal transformation and democratic accountability. Through his roles as General Secretary of the Pan-African Movement, Director of Justice Africa, and Deputy Director of the UN Millennium Campaign for Africa, Abdul-Raheem articulated a transformative approach to law that challenged postcolonial legal fragmentation and elite capture while advocating for grassroots participation and continental integration. This paper demonstrates how Abdul-Raheem's critique of postcolonial legal orders, which he viewed as trapped by colonial borders, external dependencies, and serving elite rather than popular interests, provides a blueprint for reimagining African jurisprudence. This study contributes to contemporary debates about African governance by positioning Pan-Africanism as a living legal and institutional imperative rather than merely a historical memory or political ideal. Abdul-Raheem's legacy offers crucial guidance for current efforts to deepen democracy, promote continental integration, and develop legal frameworks that serve African peoples' needs while challenging global structures of dependency and inequality.

Keywords: Pan-African, Tajudeen Abdul-Raheem, African legal systems, governance reform, postcolonial legal orders, democratic accountability, continental integration

  • 8. Eugène Pascal Parfait and Arsène Stéphane Zindi, Insights into the realities of police custody and remand to custody in Cameroon

Police custody and remand in custody are measures that deprive individuals of liberty and operate hand-in-hand with human dignity. However, in practice, we realise that they are very often a means of humiliation and dehumanisation of people; a method that is organised by the institutions of a repressive system and by the actors of that system. Through legal method, this essay identifies protections that persons in police custody and detainees have under Cameroonian law. However, in practice, as will be shown, there is minimal compliance with the state's obligations to the Constitution of Cameroon and international commitments. This in spite the presence of national and international mechanisms to sanction violations of the law in this matter. Therefore, this essay hopes to make Cameroonians aware of their rights in all circumstances and defend them through available legal actions. The reality of the rule of law depends on it.

Keywords: Cameroon judicial system, human dignity, police custody, remand in custody, public freedoms

  • 9. James Mulei, A conversation with Tekin Saeko: From Kianjokoma to Kajiado, police brutality and the cross-border crisis of accountability


This essay responds to Tekin Saeko's tribute to the Kianjokoma brothers, situating his findings within broader philosophical questions of violence, legitimacy, and justice. Saeko argues that the unresolved trial of the Ndwiga brothers, more than three years after their deaths, illustrates how justice in Kenya is routinely deferred, rendering accountability a mirage. Further, he highlights the structural weaknesses of oversight institutions such as the Internal Affairs Unit and the Independent Policing Oversight Authority (IPOA), noting that limited mandates, bureaucratic inertia, and political capture frustrate reform and make convictions rare. Building on these insights, this essay seeks to extend the conversation by placing the Kianjokoma murders alongside the killing of journalist Arshad Sharif in Kajiado. By drawing connections between these tragedies, it explores how patterns of delayed justice, institutional weakness, and political expediency exceed national boundaries, revealing cross-border dimensions of accountability. The analysis also introduces the notion of a 'dysfunctioning functioning system' to capture how institutions may operate procedurally yet fail substantively, sustaining wrongful exculpation under the guise of legality. Rather than offering a final answer, the essay opens a philosophical inquiry into how legality and impunity entangle in Kenya's policing, raising questions about whether accountability in such contexts is ever more than a fragile and deferred promise.

Keywords: accountability, impunity, dysfunctioning functioning system, philosophy, police brutality

  • 10. Ana Cristina Vasquez, Climate justice unpacked: Breaking down the 2025 Inter-American Court of Human Rights and International Court of Justice advisory opinions on environment, human rights and state obligations

The advisory opinion (OC-32/25) by the Inter-American Court of Human Rights (IACHR) in response to a request by the Republic of Colombia and the Republic of Chile delimited the individual and collective obligations of American states in matters of climate emergency within the framework of the American Convention of Human Rights. Although reaffirming the obligation of states under international law to address climate change and redefining the limits of environmental law and social justice, this achievement only embodies a small part of the problem. However, the applicable legal framework – particularly the principles of state responsibility for breaches of obligations to protect the climate system, as reflected in the International Court of Justice (ICJ) advisory opinion on climate change – merits close attention. This case commentary analyses the proceedings that are based on the interactions between law, science, nature, and society.

Keywords: state responsibility, environmental law, advisory opinion, Inter-American Legal System, climate emergency

  • 11. Harrison Otieno Mbori, Proportionality on the 'lite': The Kenyan Supreme Court's fatalism in the Fatma Athman Abud (FAAF) case

This case commentary discusses the recent Supreme Court of Kenya decision in Fatuma Athman Abud Faraj v Ruth Faith Mwawasi and 2 others which, sitting at the in-between of religious pluralism and the right to equality, has received several diverse reactions. The commentary forwards three main arguments: first is that the Supreme Court of Kenya, the Court of Appeal, and, to a large extent, the High Court in this case failed to apply Muslim law to resolve the contending claims in the case. This failure is mainly influenced by the relegation of Muslim law to the status of retrogressive culture that the colonial doctrine of repugnancy should check. The second claim is that the Supreme Court did not correctly distinguish 'limitations' and 'derogations' in the Kenyan 2010 Constitution's Bill of Rights. This terminology and doctrinal inaccuracy affected the general trajectory of analysis, especially on the chosen standard of review of proportionality. Lastly, the Supreme Court, for the first time, introduced the famous four-part proportionality test through a 'side-door' in this case as the appropriate standard of review. The commentary concludes by arguing that since path of reasoning by the Supreme Court is faulty, there is a high propensity to question the general outcome of the case which has been celebrated as progressive.

Keywords: proportionality, Muslim law, limitations, derogations, Supreme Court of Kenya

  • 12. Daniel Ominde, The resuscitation of criminal defamation in Kenya and the ensuing consequences: An incisive examination of Jacqueline Okuta vs AG vis-à-vis BAKE vs AG

This case commentary examines the resuscitation of criminal defamation in Kenya under Sections 22 and 23 of the Computer Misuse and Cybercrimes Act, (Chapter 79C). It contextualises this development within the broader digital transformation, where social media and online platforms have revolutionised freedom of expression, participatory discourse, and democratic accountability. The commentary assesses the constitutionality and proportionality of criminal sanctions for false publication and defamation in light of the Constitution of Kenya (2010) and international human rights standards. By analysing the High Court decisions of Jacqueline Okuta v AG (2017) and BAKE v AG (2020), the study illustrates the tension between state interests in regulating harmful digital content and the imperative to safeguard freedom of expression. The commentary highlights the risks of overbroad and vague legal provisions being used to suppress dissent, silence critics, and facilitate Strategic Lawsuits Against Public Participation (SLAPPs), especially in politically sensitive contexts.

Keywords: criminal defamation, cybercrime law, digital rights, freedom of expression, strategic lawsuits against public participation (SLAPPs)


* Outgoing Editor-in-Chief, Kabarak Law Review.