Discussants: Prof James Gathii, Prof Attiya Waris, Dr Harrison Mbori, Ms Ivy Gikonyo, and Ms Marion Joy (moderator).

Partners: - Avid Readers Forum, Afronomicslaw and Ms Wanjiru Gikonyo.

Summary

The Forum centred on discussions regarding Kenya's sovereign debt and debt swaps, focusing on the principles of transparency and accountability. The speakers expressed concern about the limited availability of public information on debt arrangements, including the suggested food security swap with the World Food Program. Additionally, they highlighted the potential risks associated with debt swaps, such as disguised loans and insufficient public oversight.

During the forum, external entities proposing debt swaps and carbon credits as solutions to debt and climate crises were criticised. The speakers stressed the importance of considering local interests and highlighted challenges in achieving transparency in debt transactions. They also discussed the implications of debt default and the role of credit rating agencies. The panellists advocated for strategic negotiation approaches, including debt cancellation linked to historical responsibility, and emphasised the need for reforms in the international financial architecture.

In conclusion, the Forum reiterated the importance of addressing root causes and ensuring public participation in decisions related to debt.

Discussants: - Chief Justice (Emeritus) Prof Willy Mutunga, Prof Gautam Bhatia, and Lucianna Thuo (moderator).

Summary

Prof Bhatia introduced the discussion and noted that rights are used as a mechanism of social transformation. He underscored that human rights can be used to evaluate how transformative a constitution is. In addition, he noted that a transformative constitution addresses the prevailing needs of a particular legal system. The primary reference material for the debate was Dr Bhatia’s article, India: A Constitution in Search of an Identity.

Prof Mutunga noted the features of a transformative constitution, including democratisation of the executive and equal distribution of political power. He provided great insights to the audience, stemming from his experience in the struggle for political freedom, his clamour for political change, and his tenure as Chief Justice. In the Constitution of Kenya 2010, he described it as a beautiful baby that has been left to child traffickers. Further, he stated the importance of history in interpreting the Constitution. He concluded that the 2010 Constitution is activist, and having activist judgments is just a reflection of the Constitution itself.

In conclusion, Ms Thuo asked about the next step in the global South conversations on constitutional identity. Prof Mutunga advocates for a Pan-African and a more comprehensive global south movement in the judiciary and engages with judgments from other global south states, following the similarity in historical constitutional progressions. Dr Bhatia hailed Kenya for involving other global South scholars as amici in its judicial matters, which is the true spirit of global South constitutional conversations. He advocates for a shift from the ‘perceived gold mines of comparative constitutional law’ in the north to more south-south events.

Read more at https://kabarak.ac.ke/sol-news/constitutional-identity-in-kenya-and-india-the-great-southern-conversation

Discussants: - Chief Justice (Emeritus) Prof Willy Mutunga and Marion Joy (moderator).

Summary

Chief Justice Emeritus Willy Mutunga offered insights into feminism and gender equality, drawing from his scholarly work titled ‘Feminist Masculinity: Advocacy for Gender Equality and Equity’. He described feminism as a social movement rooted in women's history, intellectual ideology, and political existence. He emphasised the equality of boys and girls, as well as men and women, in various spheres, including economic, social, and political domains. Additionally, Mutunga advocated for the feminist movement to address women's oppression and exploitation to achieve women's liberation. Lastly, He proposed that boys and men can actively contribute to promoting gender equality for the betterment of society.

Discussants: - Chief Justice (Emeritus) Prof Willy Mutunga, Prof J Osogo Ambani, Rev Justus Mutuku and Mr Samuel Ngure (moderator).

The debate featured Professor Willy Mutunga, Adjunct professor of public law at Kabarak University and Emeritus Chief Justice, the Dean of Kabarak University Law School, Prof John Ambani, and the Kabarak University Chaplain Rev. Justus Mutuku.

The debate centred around the role of religion in the state and the extent to which religion should influence the state's decisions. Rev. Justus Mutuku began by emphasising the need for religious spaces to be inclusive of all individuals, regardless of their beliefs. He urged individuals to examine their interpretations of religious scripture and work to eliminate any biases or prejudices.

Read more at https://kabarak.ac.ke/sol-news/the-grand-debate-on-state-and-religion-insights-from-kabu-law-school-panelists-on-inclusivity-respect-and-freedom-of-religion

Discussants – Ms Julie Lugulu and Ann Kariuki (moderator)

Summary

The Forum focused on the pressing issue of gender-discriminatory nationality laws and their impact on childhood statelessness in Africa. Ms Lugulu emphasised the importance of nationality as a legal bond between individuals and the state for accessing various rights. However, she highlighted how, in many African countries, nationality laws are discriminatory, particularly against women, leading to the inability to pass nationality to their children on an equal basis with men. This inequality significantly contributes to childhood statelessness, leaving children without nationality and unable to access essential rights.

The discussion cited specific examples from countries like Eswatini, Libya, Liberia, and Sudan, where such discriminatory laws exist. She emphasised that these laws violate international obligations and perpetuate statelessness across generations. The forum unequivocally stressed the need for legal reforms to ensure that nationality laws are gender-neutral, allowing both parents to confer nationality to their children equally. This approach aims to reduce childhood statelessness and promote human rights across Africa.

Discussants: - Prof Tomasz Milej, Mr Edmond Shikoli, Mr Emmanuel Sebijjo, Ms Jemimah Muyama, Ms Molly Rwigamba, and Mr John Nyanje (moderator).

Summary

The decision made by the East African Court of Justice (EACJ) regarding Kenya's trade negotiations with the USA formed the basis of the discussion. The EACJ ruled that Kenya had breached East African Community (EAC) law by initiating free trade agreement negotiations and adopting a memorandum on wheat grain certification without the involvement of other partner states. This decision underscored the importance of incorporating the participation of the private sector and civil society in the EAC integration process.

During the discussion, participants deliberated on the definition of a proposed agreement, the role of the EAC Secretary General, and the challenges faced by Kenya in the EAC. Additionally, they thoroughly examined the potential implications of the ruling on the ongoing EU-EAC Economic Partnership Agreement negotiations.

Consequently, the decision permitted Kenya to engage in individual negotiations with the EU while simultaneously nullifying its talks with the USA, which may potentially result in delayed regional integration. In light of this, experts recommended that African leaders adopt a unified approach to trade issues to prevent undermining existing tariff agreements. The Forum underlined the significance of this ruling for EAC integration and trade relationships with external partners.

Discussants: - Mr Ian Mwiti, Dr Victoria Miyandazi, and Mr Maurice Oduor.

Summary

Participants thoroughly explored the legal and social implications of the Mitu-Bell Welfare case, a pivotal decision by the Kenyan courts. The case involved the forced eviction of the Mitu-Bell informal settlement by the Kenya Airports Authority, which prompted a comprehensive discussion on the rights of informal settlers and the responsibilities of the state under Kenyan and international law.

Distinguished discussants Ian Mwiti, Victoria Miyandazi, and Maurice Oduor participated in an in-depth analysis of the Court's ruling, which acknowledged the rights of informal settlers to housing and human dignity and underscored the protection of these rights under the Kenyan Constitution. Additionally, the forum offered insights into the Initiative for Strategic Litigation in Africa (ISLA) role as amicus curiae, providing a broader context on using strategic litigation to advance human rights in Africa.

The discussants accentuated the potential implications of the case for future eviction practices, the enforcement of socio-economic rights, and the government's obligation to ensure that evictions are conducted in a manner consistent with human rights standards. Overall, the discussion stressed the crucial role of judicial oversight in safeguarding vulnerable communities from arbitrary state actions. The role of international law in Kenya was also a vital point of discussion.

Discussants: - Prof John Hudson FBA, Prof Ben Sihanya, Dr Muthomi Thiankolu, Mr JV Owiti, mr Ochiel Dudley, Ms Lucianna Thuo, and Ms Julie Matheka & Ms Valentine Khaminwa (moderators).

Summary

The ARF hosted a thoughtful discussion on the Supreme Court's ruling regarding Kenya's 2022 presidential election. The topic centred on the court's use of strong language, with varying perspectives on whether it was necessary to express outrage at fraudulent claims. The discussion also explored the role of the Independent Electoral and Boundaries Commission (IEBC) and delved into the controversial "Serena quartet" moment involving four commissioners.

The experts emphasised the importance of recognising that election results are declared at polling stations, not the national tallying centre. They also critically examined unsubstantiated claims of foreign interference discussed the benefits of technology in elections, and exchanged views on the standard of proof in election petitions and potential constitutional reforms, including the possibility of extending the petition filing period.

Furthermore, the Forum addressed concerns about judicial capture, underlining the importance of impartiality in election observation and the necessity for transparency in the electoral process. Speakers underscored the significance of prioritising legal arguments over emotional appeals in judgments and ensuring the integrity of the electoral system.

Discussants: - Prof Rosalind Dickson, Prof Ben Sihanya, Dr Adem K Abebe, Dr Gautam Bhatia, Ms Christine Nkonge, Mr Ochiel Dudley and Ms Valentine Khaminwa (moderator).

Partners: - International Commission of Jurists – Kenya, Katiba Institute, Kenya Human Rights Commission and the Institute of Legal and Constitutional Research, University of St Andrews.

Summary

The Supreme Court ruling on Kenya's Building Bridges Initiative (BBI) was the subject of a comprehensive discussion at the Forum. The decision to declare the BBI null and void was a significant milestone for constitutionalism and the rule of law in Kenya. The panel, comprising esteemed legal scholars from Kenya and abroad, analysed the court's rationale on pivotal issues such as the basic structure doctrine, presidential immunity, and public participation in constitutional amendments.

During the discussion, the complexity of the court's decision was highlighted, with diverse interpretations of its potential implications for future constitutional amendments. Some perceived the ruling as striking a pragmatic balance between constitutional safeguarding and flexibility, while others argued that it could have displayed more robustness in upholding the Constitution's fundamental principles. The panel also delved into the broader implications for Kenyan democracy, judicial independence, and the separation of powers. Overall, the decision was a pivotal moment in Kenya's constitutional development, igniting intellectual discourse and emphasising the significance of civic engagement in governance.

Discussants: - Prof Rosalind Dixon, Prof Yaniv Roznai, Prof Richard Albert, Prof Ben Sihanya, Prof Migai Akech, Dr Duncan Okubasu, Mr Dudley Ochiel, Mr Elisha Ongoya, and Prof Gautam Bhatia, and Ms Lucianna Thuo & Silas Kamanza (moderators)

Partners: - Avid Readers Forum, Katiba Institute and International Commission of Jurists – Kenya section (as part of the 11th-anniversary celebration of Kenya’s Constitution).

Summary

The Avid Readers Forum hosted a comprehensive discussion on the recent ruling by the Kenyan Court of Appeal concerning the Building Bridges Initiative (BBI). Throughout the exchange, legal experts meticulously examined the judgment's constitutional implications, shedding light on the intricacies of public participation, amendment processes, and the vital role of institutions in the decision-making process. The debate was rich with analyses regarding the application of constitutional doctrines, the nuanced significance of historical context, and the broader implications of the judgment in the landscape of comparative law.

Additionally, the forum underlined the importance of contextual interpretation of constitutional provisions and meaningful public participation, emphasising their profound societal impact. Discussants also drew attention to the crucial role of civil society in holding political elites accountable and stressed the significance of upholding the Constitution's text, history, and structure. The discussion also catalysed ongoing dialogue on various social media platforms, further fostering public engagement and awareness on matters related to constitutional law and governance.

Discussants: - Dr Tomkeen Mobegi, Dr Harrison Mbori and Ms Lucianna Thuo (moderator).

Summary

Tomkeen Mobegi and Harrison Mbori led the discussion regarding Africa and the history of international law. They examined Africa's role in international law, discussing its representation and contributions. They discussed the impact of colonialism, the legitimacy of international institutions, and the importance of decolonising international law. The speakers also explored various perspectives, including critical, feminist, and classical realist approaches.

The discussion highlighted the complexities of international law and the ongoing debates about its impact on the relationships between African states and the global community. The speakers stressed the significance of understanding Africa's history in international law and the need for reform to reflect African needs and aspirations better. Additionally, they addressed the challenges of balancing ideals with real politics and the resistance to change from global capital and neoliberalism. The forum concluded by emphasising the importance of ongoing efforts towards reform and increased African representation in international law.

Discussants: - Dr John Osogo Ambani (as he then was) and Ms Lucianna Thuo (moderator).

Summary

The Forum featured Prof J Osogo Ambani and Elizabeth O'Loughlin as lead discussants. During the session, the participants underscored the significance of enhancing access to international law for local communities. They emphasised the importance of incorporating local languages and cultural values in legal systems, advocating for diversifying language used in legal forums. The discussions delved into the complexities of decolonisation, addressing potential regression risks and highlighting the value of understanding distinct African legal approaches.

The participants engaged in constructive debate regarding the role of traditional African justice methods and the necessity of studying African customs and values. The forum comprehensively examined the decolonisation of various facets of life, including identity, language, religion, and politics. The speakers emphasised the importance of harmonising scholarly pursuits and activism with communities and belaboured the need to prioritise local perspectives in law.

Additionally, the discussion spotlighted the significance of African literature and theories in addressing societal issues instead of solely relying on Western academic writings. The participants recognised the need to critically examine colonialism's impact on legal systems and the centrality of amplifying marginalised voices in the decolonisation process.