Africa Law Times Issue #1

The Silence of

Reeva Steenkamp

|Also In This Issue|  The Subsisting and Looming Constitutional Crisis in South Sudan.  The Mozambique 2014 Polls and War on Poverty Law Timesof Sovereignty before the  Africa The Fallacy Table of Contents BackThe To Top ICC: Kenyan Experience

The East African Business Summit

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|Editor’s Note| (Editor’s Note)

“Enthusiasm is good material for me, but for progress we need something more durable to working…without which, the will to go on will be wanting at the critical moment”

I speak in the spirit voice of comity, of the American Father of Nation, Abraham Lincoln. We should be irrevocably cut off from our past, and be forced to splice the ragged ends of our lives upon whatever new conditions chance might leave dangling for us. I confess that I had my doubts at first whether the support of our African Law Students were not too narrowly nationalized to embrace the proportions of a continental peril, an all Africa Law Times Magazine. Men acting gregariously are always in extremes; as they are one moment capable of higher courage, so they are liable, the next, to baser depression, and it is often a matter of chance whether numbers shall multiply confidence or discouragement. The only faith that wears well and holds its color in all weathers is that which is woven of conviction and set with the sharp mordant of experience For the imposibility of every man is rendered null by birth, I extend this rhetoric to appraise the possibilities am optimistic about on the ALT. I am particular about success, for I know me and my team are right on our way to it, and even so, mine is beyond success to significance; for Enthusiasm is good material for me as a learning orator, but for progress we need something more durable to working,--must be able to rely on the deliberate reason and consequent firmness of the people, without which, the will to go on will be wanting at the critical moment; am staying put. Welcome. REGARDS,

Michael.O. Michael Opondo O. Managing Editor, Africa Law Times

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The Africa Law Times Team:

Proudly African

The Secretariat Managing Editor Michael Opondo O.; [email protected] Assistant Editor Linda Wangui; [email protected] Associate Editors Ombo Duncan; [email protected] Cindy Amuka; [email protected] Communications Director Jack Kennedy; [email protected] Communications Co-Directors Kenneth Kimathi; [email protected] Anthony Mwangi; [email protected] Partnerships Director Nelson Otieno; [email protected] Partnerships Co-Directors Godfrey Aira; [email protected] Oliver Dundo; [email protected] Resident Directors Uganda Ronald Tukachungurwa; [email protected] Malawi Wahabi Paison Shaibu; [email protected]

Resident Director’s needed Add your country’s flag here by contacting us on: [email protected]

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Disclaimer: Whilst every effort has been made to ensure the accuracy of the information in this magazine, the authors, publisher and editor accepts no responsibility for any loss, financial or otherwise by any person using this publication. All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. Copyright protected by Creative Commons ©Africa Law Times 2014 All Rights Reserved. www.africalawtimes.wordpress.com Table of Contents

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Peaceful polls key in Mozambique’s war on poverty BY ALEX VINES . This week’s elections i n Mozambique are the most important since 1994. Up to 10.8 registered voters were to elect Front for the Liberation of Mozambique (FRELIMO) Felipe Nyusi as the country’s fourth president. What is uncertain is the size of Frelimo’s majority and how many seats the opposition will win out of the 250 parliamentary seats available. How Nyusi performs as the next president of Mozambique will be determined by the vote. A narrowly margin would weaken his future mandate, while a too strong mandate could mistakenly convince Frelimo that it can continue its path of elite growth, the hall mark of Guebuza decade. President Armando Guebuza’s shadow lies long over Frelimo and he remains party president until 2017, giving him influence over future government decisions. Post-elections, once Nyusi consolidates his position and gets more confident, we should expect steps to remove Guebuza from this position. In 2009 Frelimo captured 75% of the vote in national elections, and Guebuza won a second and final term by a similar margin although more than 40% of the electorate did not vote. This election promises a higher turnout because

Frelimo has appointed Nyusi, an untested presidential candidate and the opposition Mozambican National Resistance (Renamo) has surprised many observers by attracting support following its return to targeted armed violence in 2013-14 Only a few months ago it looked like Renamo’s leader Afonso Dhalkama’s decision to return to armed violence has been miscalculated and would be punished by the electorate, leaving a third party, the Mozambique Democratic Movement to overtake it. Armed violence should not be seen as a viable strategy to obtain further concessions by any political party. Investors are watching Mozambique’s closely and want stability and predictability. A peaceful election, underpinned by credible electoral processes and responsible behavior by all Mozambique’s politicians can help Mozambique continue to combat the main threat to its people: poverty. Mr. Vines is the research director at Chatham House, a UK thinktank. Source: Business Daily (www.bdafrica.com )

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President Kenyatta backs thin-SIM rollout, digital migration at EA Business summit |By Lilian Mutegi|

President Kagame addresses the East African Business Summit alongside President Uhuru Kenyatta in a panel discussion moderated by Joshua Oigara, the chief executive of Kenya Commercial Bank (R), in Kigali yesterday.

President Uhuru Kenyatta says he is in favor of Equity’s thin-SIM technology and digital migration. Speaking in Kigali, Rwanda where he is attending the East African Business Leaders’ Summit, the Head of State said the competition in mobile money would deepen mobile money services and benefit users. “New technologies are creating advantages for our people,” he said. Mr. Kenyatta also revealed, “Some people came to me to say that licensing this or that will have consequences. We have all this mobile money (they said) and others are coming up with

new SIMs (that put it at risk)’. But I told them: ‘Let them (Equity and Safaricom) fight it out. All we want is cheaper and better products for people’.” The Head of State said fear of getting it wrong was no reason to hold back. “Yes, we can make some mistakes”, he said, “but we will learn and use technology to drive our development agenda.” Speaking of Equity Bank’s plans to roll out its mobile money business, Uhuru said competition would deepen mobile money services and benefit users.

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He also said media consumers will benefit from the planned switch to digital broadcasts and urged existing players to welcome the new environment. On the scheduled digital migration, the Head of State urged media owners to participate in the exercise. “Let us go through digital migration and participate in it and let young people make productions and air them. Competition is good. Yes, you have invested heavily, but I ask you to work with young people. Let us compete, take advantage, harness and manage technologies that are coming up, and let’s open up… for the advantage for our people.” Kenyatta comments follow a Supreme Court ruling that postponed the migration and

asked the CAK and three privately-owed media organizations to negotiate on an appropriate switch-over arrangement. The East Africa Business Summit stands out as the leading strategic think tank for the region in a time when calls for regional development efforts abound. Through the Summit, the conveners and business leaders represented, seek to bring thought leadership to regional economic transformation. Through presentations and plenary sittings, participants work towards formulation of solutions to the complex problems facing the region and in turn disabling required transformation and development. Source: CIC East Africa www.cic.com

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Mandatory Death Penalty on Trial In the olden days during the Roman Empire, a man’s death was as normal as taking a meal. The judicial process was such a monstrous process that no one would even want to think of taking a dispute to the courts. I have been closely following a movie series branded Game of Thrones whose characters and events are not any different from the judicial atrocities committed in the great Roman Empire or any other prominent old emperors. [The only way to appeal against a decision of a judicial process {in the movie series coined Game of thrones} is by seeking a “Trial by Combat,” and the undesirable part of this process is that, in the end of it all life has to be lost, and that is seen to be a complete and a justifiable way of rendering justice through what is believed to be a competent judicial process.] What would then be the legal context of the so called death penalty? Human life is the most treasured gift on earth, and man therefore has an obligation to protect and preserve life in every circumstance or even a compelling condition that manifests itself to him. From a religious context, God is the life giver and the taker as well the life taker, this posits that no other man whatsoever, has even a simple fraction of authority, over another man or authority to have another man killed. It is not in dispute that the major reason for punitive measures against a given

crime usually is to ensure that the accused face or undergo a rehabilitation process so that in the future he/she desist from repeating the same mistake again, so then if that remains so, what chance are we giving to victims of death penalty to rectify their mistakes if their lives are already taken away? Death penalty might have been accepted and strongly backed in the past, but that doesn’t simply justify the same in today’s enlightened era. Sociological school of jurisprudence, {a school of thought which emerged to give a more practical approach to determine social consciousness of people as a basis of Law} asserts that Law must “If at all the adapt itself to mandatory Death changin Penalty is justifiable g circumst by any chance, then ances or the question remains conditio that, does the process ns in the society, I by which the death therefor penalty is executed, e respect and preserve contend that it is human dignity?” the duty of the

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society to shape the law in conformity with new conditions. The proponents of the same school of thought assert that law is an instrument of serving the society; it is therefore of no doubt that our legal system is fundamentally part of the society since it uses legal principles to serve the society. Natural law as propounded by its proponents, was seeking a universality of laws since St. Thomas Aquinas together with other Naturalists were of the opinion that laws comes from on Super Natural being and the same is the executor who imposes sanctions for breach of any legal principle in place. This aspect of universality of laws still manifests itself by virtue of the existence of United Nations Organization [Hereinafter UN]. It is of no dispute that no court or tribunal operating under the umbrella of UN is allowed or have the discretion to impose death penalty as a general principle, this has been manifested in Charles Tylor’s case[Charles Tylor v Prosecutor] which was handled by the Special Court for Sierra Leone (SCSL) sitting at The Hague. In this case, the accused, instead of death penalty was handed a long term imprisonment which served him right. The new Constitution of Kenya 2010 acknowledges International Law and instruments by virtue of Article (2)6, and therefore Kenyan legal system directly imports international law through a monism process. Having considered that, Article6 (1) of the ICCPR reads as follows; “Every human being has the inherent right to life {emphasis added}. This right shall be protected by law. No one shall be arbitrarily deprived of his life. This provision a firms the sanctity of life and the logic behind the necessity to respect, preserve and protect life. If at all the mandatory Death Penalty is justifiable by any chance, then the question

remains that, does the process by which the death penalty is executed, respect and preserve human dignity? Our very own Constitution that we praise day and night, every dawn and dusk prohibits subjection of any individual to torture and cruel, inhuman or degrading treatment punishment as reflected in Article 25 (a), which further provides that such rights{Right not to subjected to torture cruel, inhuman or grading treatment or punishment} shall not be limited. An individual who is subject to death penalty usually is subjected to psychological trauma especially those who find themselves in the moratorium. The undignified part of this process manifests itself the moment a subject of death penalty is to have his or her last breath and have the last sight of his/her environment, because without fear of contradiction, usually it is a highly violent process which translates to a cruel and degrading treatment. It is this form of violence that Article 29 which reads as follows was meant to deter ………..”Every person has a right to freedom and security of person, which includes right not to be- …….. (c) Subjected to any form of violence from either public or private sources….and (d) Subjected to torture in any manner, whether physical or psychological torture” The provisions of the above mention Articles of the Constitution, silently invalidates mandatory death penalty. It is not in dispute that the Constitution of Kenya 2010, gives a lot of attention and priorities to Human dignity and the total well-being and existence of persons, with regards to that, then the question remains, if the process of execution of death penalty disregard human dignity and doesn’t in any way preserve human dignity and furthermore contradicts the provisions of the Supreme law of our land, then why impose it? {Mandatory Death Penalty}

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Kenyan legal system uses the Penal Code to define different kinds of crime and the underlying measures against criminal offences it defines. From a historical angle, the so called Penal code was enacted during the colonial period. Whenever this harsh reality comes to my mind, it reminds me of the red color of our national flag, this further reminds me of the blood shed by our freedom fighters. The penal code in my opinion was meant to ensure that unnecessary punitive measures are enforced against any African who might have any thought of rebellion or resistance against the oppressive colonial regime. Surprisingly section 203 as read with section 204 of this oppressive colonial instrument has always been used to administer justice in the name of Mandatory Death Penalty. In a bid to discredit the provisions of Section 203 as read with that of Section 204 of the penal code, the Act has been analyst from a historical background just as it was manifested in a Court of Appeal ruling in the renowned case of Godfrey Ngotho v Republic Criminal Appeal No.17 of 2008. In this land mark case, that was seen as a first step in the Kenyan legal system to do away with Mandatory death penalty, the accused was charged with an offence of murder and subsequently convicted. He brought to appeal the following issues inter alia for determination; 1) Imposition of a mandatory death penalty is arbitrary and unconstitutional and execution of the same in the instance case would amount to: -An inhuman and degrading punishment in breach of section 74(1) of the Constitution of the Republic of Kenya {as it was then} -An arbitrary deprivation of life in breach of Section 71(1) & 70(a) of the Constitution of the Republic of Kenya.

The Kenyan Court of Appeal in its wisdom held that: “………………section 203 as read with 204 of the Penal code which provides for mandatory death sentence is antithetical to the Constitutional provisions on protection against inhuman or degrading punishment or treatment and fair trial” the court went ahead and said that: “….while the Constitution itself recognizes the death penalty as being lawful; it does not say anywhere that when a conviction for murder is recorded, only death sentence shall be imposed. We declare that section 204 shall, to the extent that it provides that death penalty is the only sentence in respect of the crime of murder is inconsistent with the letter and the spirit of the constitution, which as we have said makes no such mandatory provisions”. Therefore with regards to the above land mark ruling, a mandatory death penalty is not in any way incompliance with the Law by virtue of the unconstitutionality of section204 of the Penal Code which provides for mandatory death sentence. I contend that our legal system has the sole obligation to conform its principles with those of international law since Kenyan legal system imports international law by virtue of Articles 2(5)(6) of the Constitution of Kenya 2010. It’s time to build our jurisprudence considering the prevailing circumstances i.e. the need to respect human dignity and preservation and protection of life. By Alphonce Barrack O. Secon Year LL.B Student, Riara School of Law Nairobi, Kenya Email : [email protected] [email protected]

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HUMANITARIAN LAW AND WEAPONS: The Gory Tale of a World Sacrificed at the Altar of Imperial Aggrandizement. BY SHADRACK SHARU MUYESU, SECOND YEAR LL.B STUDENT KABARAK UNIVERSITY, NAKURU, KENYA 1.0 INTRODUCTION In spite of his then misguided notion that the atom split was an impossible feat, there was no taking away of the fact that Hans Albert Einstein’s 1905 e=mc2 discovery was no mean feat but indeed, in the words of David Bodanis, the world’s most famous equation1. Fast forward 33 years later to 1938 and Otto Hahn discovers that after all, the almighty split could indeed be achieved releasing energy of previously unfathomable proportions. Away from the irrational eye, ingenuity had sowed seeds of mistrust in people’s minds and in the process, unliding a Pandora’s Box in the eternal damnation to a daunting and insatiable arms race. Feelings of mistrust arising from the happenings of world war one fanned by the hushed claims of the strengths of a weapon that could be created by harnessing the resultant energies of nuclear split led Germany and the United States to gather its foremost nuclear fission theory enthusiasts in underground laboratories hopping to realize this weapon. For these early scientists, the atomic bomb was no longer a matter of prospect but a feature in waiting. The thought of handing over this weapon, with all dangers to bloodthirsty maniacs such as Adolf Hitler however drove them-no matter their affiliations or allegiances –to seek means of either delaying or altogether deliberately failing in their quest. Even though an exercise in futility, in this, modern international humanitarian law had a formidable history. The failure and consequent fall from grace of Adolf Hitler would allow Leo Szilard and the United States to take the lead in the atomic bomb’s race with the development of the first atomic bomb. 240,000 people buried under the rubble of two once mighty cities later and the sentiment was now common, the discovery shouldn’t have been made in the first place! 2.0 ISSUE Amidst all these rose some of the most dissident nations of the modern world in Cuba and North Korea. Anchored by Joseph Stalin, the Soviet Union, a totalitarian socialist state informed by a historical partriachial family structure, North Korea would grow to have close 1.9 million men in

1

David Bodanis, E=mc2: A Biography of The World’s Most Famous Equation (Walker and Company, New York 2000; ISBN 0802713521)

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uniform, making her the most militarized nation of the world. The dedication of close to 35% of her G.D.P towards the enhancement of her military acumen would only strengthen her case, the coming of age of a military ‘’Tyson’’. With her obvious dislike of South Korea and the west in the public domain, the world had a reason to shudder when she announced, in a blatant show of defiance, the carrying out of not one but four medium and long range nuclear weapons tests. The latest of these threats came in 2013 and though an alleged failure, it only severed to show that North Korea was indeed serious about nuclear armament. What would be the potential devastating effect of its soon to be realized nuclear arsenal was evidenced in a 3.5 magnitude earthquake felt all the way down in South Korea when she tested conventional missiles in the northern east coast province of Hom Yong The biggest threats to humanity in the wake of the arms race perhaps came when history closed in on and negotiated the bend of the cold war and finally witnessed the meteoric rise of the extremist empire state. Still unsure of her momentary peace with the Russians, the September 11 terrorist attack rudely awoke congress settling it into a hurried, panic-driven legislative frenzy that culminated in the United States PATRIOTS Act, a bewildering mutilation of her widely acclaimed Bill of Rights .This Act was passed allowing among others, the widening of the scope and availability of wiretapping and surveillance orders to include addressing and sorting information to allow surveillance on packet switched networks and the disclosure of electronic communication to law enforcing agencies. These are some of the provisions behind the numerous covert and secret surveillance acts by the U.S. seals and the National Security Agency. Leaked diplomatic cables and among others, a recent backlash NSA has faced on accusations that they installed malware on end-user computers and servers worldwide with the aim of spying and collecting data without forgetting access to mobile phones so as to support lawful and appropriate foreign intelligence operations go a long way in proving the violation of the fundamental human right of privacy all in the name of fighting terror.

“Distinction, necessity and proportionality can never be complete absent the value of humane treatment… Though the world makes a try, this effort is simply not enough. I envy the eye blind to all these horrors, as I also do the simple mind to which these developments remain incomprehensible concepts”

3.0 THE RULE OF LAW Countries are nonetheless not stopped from rising up in defense against internal or external aggression. In fact, the

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use of any weapon including nuclear weapons is not prohibited at all. On the contrary, with the elimination of nuclear weapons seemingly an impossible utopian dream, all International Humanitarian Law advices is the exercise of due care and proportionality in their use. There is neither customary law nor conventional international law or any comprehensive and universal prohibition on the threat or use of nuclear weapons on the same delves, there is neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons. However, even in the absence of specific allowance or prohibition, a threat or use of nuclear weapons should always be compatible with international laws applicable in armed conflict as well as specific obligations under treaties. The single exclusive prohibition lies in the exception that, whatever the case; no force should be used to undermine the territorial integrity or political independence of another state in a manner inconsistent with the purposes of the UN. On questions not covered by any treaty or protocol or by any other international agreement, civilians and combatants both remain under the protection and authority of the principles and dictates derived from established customs, principles of humanity and the dictates of public conscience. By virtue having a conscience and being free to the application of reason, man is therefore prevented from using weapons of mass destruction on his fellows in spite of a subscription or lack thereof to any treaty of subjection. The tragedy of human kind has however been, when facing a potential threat, we are quick to come up with laws necessitating protection; these laws however, only succeed at conjuring up curiosity well astray from their intended purpose which is to govern and protect. A paradox! 4.0 THE PRINCIPLE OF DISTINCTION: “DUMB WEAPONS” Most sacred of the dictates of International Humanitarian Law applied on civilians is the distinction between combatants and non-combatants. Generals, ought to ensure the minimization or total elimination altogether of collateral damage. Civilians who play a part in the hostilities however forfeit the protection offered by this instrument. States must never make civilians the object of attacks and must consequently never use weapons incapable of distinguishing between civilian and military targets. While this is the immaculate theoretical position of the law, elite nations continue to deliberately deploy “dumb” weapons on civilian populations and to devastating consequence. The damage caused and the consequent castigation of the use of unmanned aircrafts (drones) in among other places, Somalia and Afghanistan is not new to an avid observer of international conflict. While its proponents would argue enhanced precision-probably because of the sampling and specification of targets-it is a matter that we have all taken judicial notice of that these drones are on deployment, aimed at a specific spot with a specific target happening to be within these environs in mind. They however, happen not to be as courteous as to pick out the person of interest but instead leave behind a trail of dead bodies buried under piles of rubble, persons of which whose only mistake was being within the vicinity of the wanted man at his hour of reckoning! The same holds true for landmines and cluster munitions. The high dud rate of cluster munitions can turn these weapons into the equivalent of antipersonnel landmines which lie in the ground until distracted. The gist of this is that undisturbed, the threat posed remains alive long after fighting is over and civilians regain possession of the then battlefield. We are talking about Angola. We are talking about Kosovo, the Gulf. In Kosovo, cluster bombs dropped from high flying aircraft in 1999 remain alive as is also the case for those dropped in the gulf during the 1991 gulf war. It’s ironical that The United States,

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Russia and China, though the biggest producers of landmines, had not ratified the Landmines Convention as at 2009. The U.S however, accepted a more limited treaty commitment restricting the production and distribution of certain kinds of mines. So profound is the threat that “big brother” has undertaken to subject himself to a self imposed restriction on the distribution of mines while contributing $1 billion towards demining engagements. 5.0 NECESSITY AND PROPORTIONALITY: THE ATOMIC BOMB AND NUCLEAR TECHNOLOGY Second among the four key principles of International Humanitarian Law is the need for the application of a certain degree of necessity and proportionality. As earlier intimated, questions continue to linger as to whether “big brother’s” use of atomic bombs on Hiroshima and Nagasaki was both necessary and proportionate. The destructive effects of these weapons have however, never been in doubt! In spite of this, nations such as Russia continue to conduct research and generate nuclear weapons of stupefying strengths with amazing consistency! With the destructive effects of nuclear weapons now obvious, world powers embarked on a signing a raft of treaties aimed at preventing the spread of nuclear weapon capabilities to other nations and the prohibition of development and testing of other weapons or encouragement of such activities thereof. Uneasiness has also settled the United States and Russia to a series of back and forth diplomatic negotiations with the reduction of individual nuclear warheads stockpile to around 1,500 being the bone of contention. Suspicion has however, been the single biggest obstacle in ensuring that this quest remains a mirage. This factor is highlighted in the United States’ rejection of Russia’s proposal to reduce nuclear stockpile and the Russian counter-act of declining discussions on her tactical nuclear weapons. A more worrisome trend is that, not only has Russia been sidestepping treaty commitments in her continuous research on and the subsequent generation of nuclear weapons but she has also come under increasing scrutiny for allegedly playing a major role in the development of North Korea’s nuclear programme by selling it equipment for safe storage and transportation of nuclear weapons and also engaging in nuclear sabotage through the alleged production of RA-115s suitcase nukes weighing 50-60 pounds. Operating like a cluster ammunition, these warheads when fired, can last for many years absent detonation if wired to an electronic source. In case there is a loss of power, there is a battery backup to ensure that the nuke remains alive. In the event that this battery runs low, a transmitter is at hand to send a coded message of the same, directly or via satellite, to a GRU post, at a Russian embassy or Consulate! A thinking mind ought to shudder at the thought of a nuclear missile hidden out there waiting for the opportune time to be detonated; immediately go down in utter prayer on recognition of the fact that, in defiance of the Nuclear Non-Proliferation Treaty, Chinese nuclear tests through radioactive effect or otherwise, allegedly caused 750,000 deaths! Fasting immediately becomes inadvertent when one remembers that-from New Delhi to Pyong Yang; Islamabad to Moscow; Havana to Tehran and even to the Far East in Beijing-the insane maniacs under whose control some of these weapons fall! The gory tale of nuclear weapons doesn’t end with warheads. The pompous entry of Otto Khan and his now infamous split into the annals of history meant the exit of diesel powered engines and consequently, the grand introduction of another beast- the sub atomic nuclear powered submarine! Roaming the seas of the Arctic while laden with tones of nuclear arsenal capable of the destruction of the entire northern hemisphere and having the unique ability of staying immersed for close to 67 days in continuity, the USS Nautilus (SSN-571) was the mother of all submarines-the ultimate Africa Law Times Back To Top

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weapon of stealth! Shrouded in a quagmire of sophisticated sophistication, the doom and destruction it carries within its reactors is so horrific that not a single soul wields the entire code required to release a single warhead commission of which can only be sanctioned by none other than the President of the United States yet, not even he knows the entire code! For now, the world will continue to watch as these horrors brew and ferment in secret reactors worldwide since, in spite of the illegality of the use of nuclear weapons not until all forty four stateslisted prior states- (all states with nuclear reactors) have ratified the Comprehensive Ban Treaty on Testing and Production, it cannot enter into force. As of 2009, nine of the required forty four states were still outstanding. 6.0 HUMANE TREATMENT: CHEMICAL AND BIOLOGICAL WEAPONS Distinction, necessity and proportionality can never be complete absent the value of humane treatment. States are stopped from taking hostages or subjecting persons to torture. The 1868 Declaration of St. Petersburg attempted to eliminate weapons that cause unnecessary suffering to victims such as the mustard gas which not only incapacitated soldiers but also burned the flesh and internal organs of victims and the dum-dum bullets which expand on impact tearing great holes into the victim. These intentions are also embodied in the 1925 Geneva Gas Protocol which extended to the development, production and stockpiling of chemical and biological agents which was signed at Washington, London and Moscow on April 10th 1972 and backed into force in 1975. In furtherance, the January 13th 1993 Chemical Weapons Convention also prohibited the distribution of chemical and biological agents. This is the position of law, immaculately polished and profound. It does however, vex my soul that pacts conceived and signed in good faith would be so obviously and thoroughly be disintegrated in the continuous heavy investment in these weapons by leading nations, creativity and industry culminating in the creation of novichok agents. I am indeed terribly vexed. It is rather sickening that torture commentators in the United States had the audacity, the nerve, the temerity to recommend and advocate for the administration of “truth serum” (sodium pentothal ) in the hope of coaxing confessions out of the September 11 detainees- the definition of irony and double standards considering the provisions of her own widely acclaimed Bill of Rights, the Universal Declaration of Human Rights and the ease with which she moves to demonize torture in other areas, even punishing the imagined use of these weapons (the case of Syria and Iraq). Twins in crime, stories are abound of a biological weapons programme, run primarily by the Civilian Bioperant Agency with weapons being developed in labs in Russia on a daily basis. Testing of the resultant weapons is carried out in (among other places, the Rebirth Island in the Aral sea) a most insane way in which animal rights activists should be wary of- the deafening crescendo of poisonous gas blasts fired into the air above monkeys tied on trees with scribes at hand to record the effects witnessed in readiness of scientific analysis! Success is akin to the most hazardous. According to Bilek, this arms offensive was officially ended in 1972. Putting into perspective the elitists’ rich history of flouts, he is probably right! On April 2nd 1979, in Sverdlovsk, 900 miles east of Moscow, a “harmless” leak from a military testing facility would go on to claim 64 lives leaving 94 infected, in six weeks! The cause? Sverdlovsk anthrax!

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Russia also boasts of chemical weapons such as blister agents: Lewisite, Mustard gas and the nerve agents Soman, VX and the now unpopular Sarin which she is suspected of introducing to the Assad government in their recent little romance. The world is yet to wake up from the stupor induced by this sickness and yet the bottomless barrels of the Russian doomsday creative generation have already fermented another horror, the Novichok agents some of which are more lethal than the VXthe agent with the lowest LDSO in the U.S arsenal. Not wishing to cast a pessimistic demeanor, the story of weapons is not all about gory tales, to the contrary, it is indeed sometimes rather glorious. In the spirit of giving credit where it is due, nations have taken it upon themselves to develop weapons that limit their massive damage by concentrating it (the damage) on the enemy combatants and their combatant arsenal. First among these are the stealth bombers. With the unique ability of being able to deflect radar allowing it to penetrate the most sophisticated defenses and hold at risk heavily defended enemy targets, the B-2 stands out as the most prominent of bombers. It is the only U.S aircraft that combines long range, large payload and stealth in a single platform giving it the ability to project air power anywhere in the world. It can fly more than 6000 nautical miles unrefueled and twice that with just one aerial refueling. The biggest surprise however, lies in the arsenal it carries-20 tones of conventional and nuclear ordinance that can be delivered with a razor sharp precision under any weather conditions shifting the balance of a conflict with a single lunge! No guesswork! What of the apache helicopter? Flying both day and night whatever the condition courtesy of such systems as the target acquisition and designation system and the pilot night vision system; a longbow apache tactical engagement simulation system that allows for force on target engagements using live ammunition, gunnery scoring rocket engagements and simulated hellfire engagements not forgetting the all important protection of the cockpit that allows the survival of at least one crew in the case of an onslaught-in her the B-2 has an able assistant. While she (the B-2) rules the skies, apache flies close to the ground feeding on what is left with utter precision and to a devastating effect! The above named together with Air to surface and laser guided precision missiles when working on intelligence gathered by the virtually unnoticeable U2 aircrafts simply puts across that modern battle is a game of wits where victory is long decided by a few bald men putting to test the creations of equally bald science and engineering enthusiasts. Field engagement is a mere formality with which lesser nations are so hoodwinked. And it suddenly crosses my mind, how many days did it take for tiny Israel to vanquish Egypt? 7.0 IMPROVEMENTS The idea of precision extends well beyond aircraft and missiles. The Armatix Digital Revolver is user specific as finger print identification is a must before usage can be possible. The positive aspect of this is that even in the rare case when this gun ends up in the wrong hands, it only serves as an antique absent taking away life -purpose of which it was in the first instance created. The KAC M110 Sniper Rifle on the other hand has an impressive shooting range of 3,200 feet. The rarity of a clean shot at this distance means that the use of this rifle has helped minimize collateral loss of life with impressive ratios without subjecting the wielder to unnecessary danger that as had always been the case with earlier guns where proximity to the target was of paramount importance. The same idea is Africa Law Times Back To Top

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also duplicated in the NK M320 Grenade Launcher which has a better shot accuracy thanks to handheld laser range finders. 8.0 CONCLUSION. Though the world makes a try, this effort is simply not enough. I envy the eye blind to all these horrors, as I also do the simple mind to which these developments remain incomprehensible concepts. As for the rest of us, we can only dream. Dream that we will one day live in a world absent all this strife, animosity and suspicion. A weapon-free world. Though we dream, it never escapes us that a dream is only that, a dream, a collision of hopes, fears, fantasies and aspirations. Nothing more. But then I am at a loss, what is the essence of having a law which we don’t observe? I rest.

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The Silence of Reeva Steenkamp It is unfortunate The Late Reeva Steenkamp could not come before the Court to help Mr. Pistorius find his best-suited position in the society, for that she could make peace within the hearts of many who live asking themselves many questions about what happened between 3:12 AM – 3:14 AM of 14th of February 2013. Introduction The facts of this case are not unicus, many circumstances of the same nature have occurred before and God forbid, they will continue to emanate. However, the peculiar element about this case was that, it involved a public figure, a public figure that had his own unicus physic. Furthermore, the South African Court’s did not make an initiative to show the essence of res sub judice, as the Media was dealing with this matter directly unlike how the principles of res sub judice provide for (Mr. BY DUNCAN OMBO Meagher, www.parliament.nsw.gov.au ). Nevertheless, if it was a feeble glass being hit consistently, it could have already lost its rigidity and probably it is not far from falling into many particles. Hence, the ramifications of the Media might impair the adjudication process if not the application of principles of law vis-à-vis to the case. Herein under, the discussion will only delve into the Judgment offered by the Ms. Justice Masipa: a seventy three (73)-page document (downloaded from: www.costitutionallyspeaking.co.za ). Being a case of great emotion aggrandizement as the matter revolves from intra-family love and inter-family love, herein, the same element will be acknowledged when principles of subjective test will be utilized. Thereon, the points of relevancy raised by both parties will be given further views, of which will not solely base on the media (however, it is noted that the elements of media views sneaked into the court: Judgment at page 3296) oriented views but basing on the facts of the case. Complainants case Presented by the Prosecution acting on behalf of the Government of South Africa As per the South African Court, presided by Ms. Justice Masipa, it is clearly noted that, regarding to the whole pile of evidentiary material and arguments raised by the Prosecution, she had this to say: The Pistorius Case [2014] Judgment page 3290: The record of the evidence runs into thousands of pages. Thankfully the nub of what is an issue can be divided into three neat categories as set out hereunder: Gunshots, sounds

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“…On the other hand, the prosecution failed to execute their duty. This is because even without the messages the prosecution could win the case.”

made by a cricket bat striking against the door and screams in the early hours of the morning (own bold). Well, the relevancy of the aforementioned is not contested that much, as a matter of fact the same made counsels for the defendant much more confident. The prosecution has failed to show the requirement of corpus delicti. This is not meant to spur emotions of the Learned Counsels who proffered their duties ably to have the case decided in their favor or Principal’s favor. Nevertheless, without shying off, hence, creating a comfortable rostrum that will procure a chance to shun from stating the real factors that the Prosecution gave a blind eye or if they tried to mention it, they actually mumbled over the same, as the court never took notice of the same as main points of consideration. Prior spoon feeding the reader with the basics of this case, it will be valuable to note that a virtuoso chef will always be good at what he or she does, however, the one who tastes the meal will have the final say. Nevertheless, if one does not like the taste it does not mean the meal is not of high quality and/or the chef cannot cook. Thereof, it is upon the reader to sensibly deduce the key points in the discussion herein under “for” or “against.” The Court seems to have taken notice of queer factors emanating in this case as per page 3320 of the Case. To some extent, the court might have shown the factor of using common sense, (see Republic v Kipsigei Cosmas Sigei& another [2004] 19 Kakamega HC). However, the Court is making a statement that seems to make the four (4) key points irrelevant by tagging them “conjecture.” This shows that the prosecution did not take any step to build their case from the base; hence, they lacked a stable and concrete foundation. To appreciate that the four (4) key points and others not provided that were very relevant to this case and in some extend they could have coiled the judgment offered by the ably Ms. Justice Masipa of The High Court Of South Africa Gauteng Division, Pretoria from unintentional homicide to intentional homicide. Subjective Test Before appreciating the Subjective Test with regards with this case, it will be valuable to state the most prudent theory and note how invaluable it will be to this case. As the accused went to bring the fans into the house, and thereon came back to their bed, he managed to hear some movements in the bathroom. Apprehensive (as he stated) of the post existing factors, he took his gun. The gun was underneath their bed. Well, this cannot be far from where one can make a quick arm movement and access the ammunition.

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Assuming the fact that some intruder was in the bathroom or toilet as consistently stated by the accused, the question that follows is: what are the prudent steps taken by a lover (accused) when such a situation presents itself? As per Solomon E., as he expounds on forensic advocacy he greatly acknowledges the works of Cicero. Cicero managed to win cases (Pro Roscio Amerina; and Pro Cluentio) without utilizing the law. To Cicero “The argumentation, and not the law, determines the case.” After acknowledging the basic facts of this case, it is noteworthy to appreciate the fact that ascertaining the requirements of corpus delicti could be easier. In answering, the question provided herein under, one has to put on hats or shoes of steamy lovers (this is the picture portrayed by the accused): i. If a lover senses danger in his or her house, will he take a step to wake up his or her lover if one of them is sleeping? ii. At such wee hours of the night does one just speak or does he or she have to touch or tap the lover to inform him or her of the situation, thus making sure they are aware? iii. Considering the unicus physic status of the accused, thus lack of quick and responsive mobility could he have not made sure the girlfriend was awake to make the call? iv. Is there sense of care during such situations considering the purported intruder or intruders was or were not making quick and courageous movements? As the psychiatrist have noted the male lover was a person of flight and not fright, meaning he was more composed to deal with the situation, hence, he could have taken prior steps to ensure that that was not his girlfriend. v. When the male lover was shouting (remember whispering is not the case herein) that the purported intruder or intruders to go away, could there be a chance that the female lover could hear this? vi. What was the girlfriend doing with the mobile phone in the toilet? vii. It questions any reasonable person as to why the girlfriend could have locked the door while she is in the toilet of the main bedroom (main bedroom with en suite facilities)? The seven points raised can prove the mens rea of the accused or placed the court at a better position to indulge on the mens rea of the accused. It is after answering the questions provided herein above that the Honorable Court could be in a better (if not best) position to answer questions it posed against itself (Criminal Capacity, at. page 3311and 3315 of the judgment) prior the adjudging session. The Court’s statement to kick away the WhatsApp messages was very inimical to the case, more so to the Prosecution’s case. This is because as per the complainants view, the case before Ms. Justice Masipa was that of lovers, and the arguments raised by the prosecution was that of the reasons that, the deceased and the accused had relationship feuds. Hence, that deteriorated the prosecution’s case. In People v. Mills, [2010] 226 P.2d 276 Cal., the court invited evidence of the accused that described his character; this was sixty hours after the murder of the victim. This was regarded as an imperative element to prove the mental aspect of the accused. Herein, the Court allowed the defense to use the element of remorsefulness and sobriety (psychiatric report), but disbanded the messages in WhatsApp, of which could raise a better (if not best) case for the prosecution. Not forgetting South Africa has the best Information Communication and Technology lex, this could help build the prosecution’s case vis-à-vis the WhatsApp messages. The Court was lax on how to accommodate the evidentiary issues being raised by Ms. Samantha Taylor as she is Mr. Pistorius former girlfriend, however, some of the statements could be proved if Africa Law Times Back To Top

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they could be corroborated by other third parties (more so those provided in www.mirror.co.uk , if actually it was to be stated before the court: that was the prosecutions duty). This is because elements of reputation and/or disposition could be a great factor. (i – iii): Reasonably, when there exists a precarious situation in a given premises that is domiciled by a couple, and one of them has noted the same at such wee hours of the night. It is prudent for the spouse to wake up the other so as to forge the way forward. However, herein, the accused never executed the simple and most automatic action a human being can undertake, considering the unique physic the accused is engulfed with. (iv): When one takes a gun ready to face the precarious situation that is impending, he is expected to have reasonably questioned the position of the people within the house legally, herein; the girlfriend was to be at the bed. Without embalming our heads into the sand, it is imperative to note that, the accused was not a novice on guns and he is a flight: an adrenaline element that emanate when one is faced with a precarious situation. Owing to the low number of people in the house, it was imperative for the lover to note the safety of the girlfriend easily: he did not take any step for that. As he portrays their relationship to be very steamy and he could not wish or even think of harming her girlfriend. (v): It is appalling that the girlfriend was not able to hear the accused shout at the purported intruder or intruders to leave. Well, if the accused could hear the slight movements that made him reach his gun, it means that the deceased could hear the accused shout. This is because the shouting was not far from the bathroom itself and the toilet, and if the deceased could hear the shouting, she could respond (with a question: most likely) and the accused could have noted it was not an intruder but her girlfriend. This means the accused did not even shout “get out” at the first place. (vi – vii): This is one of the parts that leave a reasonable person appalled and more inquisitive of what was happening in the house. It is not easy to wish and hope that one will think of consuming the statement that the deceased was using the mobile phone as a source of light, since the electrical lines within the en suite facilities were faulty. The fact that the deceased was in the toilet with the phone and locked the same room it raises more questions than offering answers regarding the defense statement that the phone was being used as a source of light. The only circumstance one could do such (going with a phone into the toilet and locking oneself therein) is when they are trying to communicate with someone and they do not need any disruption of which they are expecting. With that being said, the deceased might have taken that course as a rescue point and to communicate with someone over their relationship feud. This can be a reason as to why the locking of the door to the toilet took place. The fact of being in the toilet with the phone and having the door locked, and incorporating the statements by Professor Saymaan, it was wrong for Ms. Justice Masipa to strike out the expert opinion, as the same was to lead to another question. For instance: what food was it, and normally what time does the meal (that food) get digested, considering the human being is in good health condition? In walking off the Cicero lane of argumentation, and applaud the precedent system, whereby stare decisis is core for purposes of consistency in making rich jurisprudence and elevate jurisprudence to a better platform, the discussion will seek other legal principles to substantiate the aforesaid statements. If one mirrors The Intruder Theory and The aforementioned Theory, it is clear that the stability of The Intruder is shaken if not watered down. As it is known, that premeditation is not a question

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settled on time but that of reflection, (See, United States v. Cole, [2000] 54 M.J. 572 Army Ct. Crim. App.; [2001], 55 M.J. 466 C.A.A.F). It is also clear that, premeditation can be inferred from circumstances (Daniel G. 2010), just as the one proffered herein above. Conclusion In appreciating the fact that the Government of South Africa is a State having a mixed legal system (Roman-Dutch and Indigenous Law); of which is far from the Civil Legal System, which the Judge assumes the position of the litigants or Counsels; this is by posing questions towards the accused and/or complainant. This is not the case in the South African legal system, but the judge has the leeway to seek clarity on questions already raised; hence, by having Ms. Justice Masipa acknowledging the elements she referred as conjecture is the best she could do, since it seems the prosecution did not make it relevant to the court. It is with that that the scripter finds the case was decided as per what Cicero termed as the argumentation. Disbanding the WhatsApp messages, the Digestion expert opinion by Professor Saymaan was the greatest mistake the Judge made. Thereon, relying on Mr. Peter Baba a security guard’s statement, who is under employment by Name: Mr. Ombo .D. Malumbe the accused (irrespective of the fact he Varsity: Mt. Kenya University, Law School might have been appointed by a security Nairobi, Kenya firm) and no one knows if he was truly Course: Bachelors of Law (2012 – 2015) awake or sober ample to know everything Contact: [email protected] that emanated before the shooting. On the + 254 (0) 724 026 355 other hand, the prosecution failed to Website: www.ombomalumbe.wordpress.com execute their duty. This is because even without the messages the prosecution could win the case.

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The Subsisting and Looming Constitutional Crisis in South Sudan. BY NAMUYA AMOS LOKAII, FOURTH LL.B STUDENT KABARAK UNIVERSITY, KENYA

T

owards the middle of the second quarter of the year, 2013, the country, the region, Africa, and the world have been hopelessly following the unfolding turn of events in the world’s newest nation-South Sudan.

“…The paradox in the African political

The second anniversary of South Sudan’s independence being the reference point, many citizens, analysts and other pundits on South Sudan’s social, economic and political aspects have raised many concerns. The case in point was the alleged looting or rather stealing of public funds, (to call a spade a spade) which was the most hotly debated of all issues with media entities like South Sudan News Agency conducting online polls on whether those who stole public money should be punished, made to return the money back or given another chance to make amends. Many citizens, me included saw no meaning in celebrating the so called second anniversary of the Independence of South Sudan. The reason for discordance being the fact that we are too far from benefiting or rather celebrating the fruits of our long won independence bearing in mind that $4 billion was stolen from the public kitty and as if that was not enough, the alleged criminals responsible for the shameful and disgraceful act were met with absolute impunity, political indemnity and appeasement. Honesty demands that I should avoid delving into areas which are the preserve of experts (Political Scientists/analysts and Economic Experts) and as such I would in the subsequent paragraphs address the legal issues as a legal mind. The Subsisting Constitutional Crisis. For the avoidance of misinterpretation I would like to define what a crisis and by extension constitutional crisis is. The Oxford Dictionary 7th Edition, defines a crisis as “a time of great danger, difficulty or confusion when problems must be solved or important decisions must be made.’’ Constitutional crisis is defined as a situation that the legal system's constitution or other basic principles of operation appear unable to resolve; it often results in a breakdown in the orderly operation of government. Thus contextually a constitutional crisis can be defined as the time of great danger, difficulty or confusion when problems must be solved or important decisions must be

leadership acceptance of a constitutional state and absolute rejection of

constitutionalism has

continued to manifest itself in most African modern states…”

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made as a result of non-compliance with the constitutional provisions on the aspects of problem solving and decision making on the part of the state, which can result in the breakdown of government operations. Sometimes before the subsequent grand reshuffle of the cabinet of the Republic of South Sudan in July, 2013, the Head of State had made some unconstitutional decrees relieving two state governors pursuant to Article 101(s) and (r). These provisions provide that “The President shall perform the following functions: (r) remove a State Governor and/ or dissolve a State Legislative Assembly in the event of the crisis in the state that threatens national security and territorial integrity; (s) appoint a state care- taker Governor who shall prepare for elections within sixty days in the state where the Governor has been removed or the State Legislative Assembly so dissolved in accordance with the provisions of this constitution, the relevant state constitution and the law;…..’’ The cases in point being former Unity State Governor, Taban Deng Gai (now Rebel chief Negotiator in the ongoing IGAD Mediated Peace Talks in Ethiopia) and Lakes State Governor. His Excellency the President of the Republic of South Sudan in his own wisdom opted to follow the constitutional provisions in Article 101 (r) and (s) by violating the former and the latter. There was a gross violation of Clause 101(r) by the Head of State when the putative governors were removed because the conditions set by the constitution, as cited above did not warrant the removal of the two Governors. The Constitution envisages a situation in which a crisis occurs in a State, a reasonable Governor under the same circumstances in that particular state would not have avert or that particular state governor neglected, failed and /or caused such a crisis to result in the endangering and threatening of national security and territorial integrity of South Sudan. Someone who is convinced otherwise should answer these questions: (1) Was there a crisis in any of the two States and if so, could the respective Governors have averted it in any way possible? (2) Was there a threat to the national security and territorial integrity of South Sudan? (3) Has there been any election held in the two States as provided by law? (4) Did the circumstances in question warrant their removal? Many pundits argued that such a move was politically motivated, whether this is true is a task that the allegers should prove. On the other hand, since the constitution is a legal and a political document, such an argument may not per se be wished away. In regards to Article 101(s) the same was partly complied with since care- taker Governors were appointed in each of the two States mentioned above. The crisis comes in as I write this, there has never been a preparation or an election in the two affected states since their governors were removed; this is the month of March, and the governors were removed mid last year- I rely on the principle of Res ipsa loquitur on this point. The Constitution does not provide on how the election of a new Governor under the circumstances should be prepared but it merely tasks the care taker Governor to prepare for elections within sixty days. This is a crisis in the Constitution itself. At the time of relieving those governors off their duties, there was no electoral law in place to help mitigate such a crisis in which the care taker Governor could prepare for such an election contemplated by the constitution. With the National Elections Commission in place and the relevant electoral law, there seemed to have been a reluctance to avert this real and subsisting constitutional crisis. So the constitutional crisis continues and so is the

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political crisis associated with it. These unavoidable constitutional crises are the result of the current political crisis coupled with the breakdown in orderly administration of government. Currently, the Governor of Jonglei State is in office in a care-taker capacity after the appointment and subsequent resignation of Governor KuolManyang Juuk as a Minister of Defense following the July grand cabinet reshuffle. The same thing is happening and there has been no preparations for elections to elect a new governor despite the fact that an electoral commission is already in place to conduct such elections. The paradox in the African political leadership acceptance of a constitutional state and absolute rejection of constitutionalism has continued to manifest itself in most African modern states. The same leaders would always quote a constitutional provision to justify his or her action and ignores or rejects to uphold, promote and respect those constitutional provisions that seem to restrain their actions and powers as well as their decision making processes. Lack of constitutionalism is directly related to the poor adherence or no adherence to the rule of law in a particular state and when the rule of law fails to take its course, then the rule of man sets in, which progressively graduates into the rule of the jungle and rightfully and scientifically put- survival for the fittest. Another form of continued constitutional crisis is the issue of the national borders. It should be appreciated that South Sudan is not the only country whose constitution clearly defines its national boundaries .This is a legal requirement in international law for a state to be considered a state it must have a definite population, territory and a consideration form and system of government. The significance of the definition of the territorial boundaries of a state is that it enables a state to claim its territorial integrity and economic exploitation of both its artificial and natural resources, to defend it against external aggressions and to exercise territorial jurisdiction. A look at Article 1(2) of the Transitional Constitution of South Sudan 2011 reveals that the framers of the constitution were alive to the fact that being a nation that has just emerged from a United Sudan, it was prudent that its boundaries be defined through its supreme law. The said Article 1(2) provides that “the territory of South Sudan comprises(a) All land and airspace that constituted the three former provinces of Bahr el Ghazal, Equatroia and Upper Nile in their boundaries they stood on January, 1 1956; and (b) The Abyei Area, the territory of the 9 DinkaNgok Chiefdoms transferred from Bahr el Ghazal Province to Kordofan Province in 1905 as defined by the Abyei Arbitration Tribunal Award of July 2009 in the event that the final status of Abyei Area results in the Area becoming part of the Republic of South Sudan.’’ Lately, the people of Abyei carried out a self-driven and managed unilateral vote on the referendum in order to assert, determine and exercise their right to self-determination. Unfortunately they were spurned and shunned by the international community and South Sudan as a Republic despite the constitution stipulating that their Area can be part of South Sudan in such a status as that they declared. The rhetoric of territorial sovereignty has only be seen, heard and sang in political overtones when there are real or perceived external political interferences of the political equation of the political arena but little has been heard or seen in pursuit to protect and more so delimit all the international borders as defined by the Transitional Constitution of South Sudan. An example is the question of the Ilemi Triangle, Nadapal in Kapeota East County, Bibia (Nimule) in Magwi County and Moyo in Western Equatroia State in which there have been border disputes between the locals and their internal neighbours.

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The South Sudan has not been and ought to use her supreme law to expressly alert her ‘aggressive’ neighbours that her constitution is inviolable when it comes to our territorial integrity. Our international borders are so elastic and obscure that one cannot clearly say at the extreme border points when he or she is in South Sudan or say, Uganda, Kenya, Congo, Sudan or Ethiopia of the country despite the simple yet legal fact that our borders are defined as of 1 st Janaury,1956. There was or there is an underground annexation, abrogation, acquisition and alienation of South Sudan Territory during the Sudan’s civil war at the watch of our then desperate selves and ruthless Khartoum. It is high time that we as a nation implement the definition of what comprises as our territory in line with the Transitional Constitution of South Sudan. The Looming Constitutional Crisis. Whereas there has been such glaring constitutional crisis in the Republic of South Sudan, there has been legal apathy and lack of concern by the government and citizens as well on the repercussions of the continued constitutional crisis, as if to say this has become the norm of running a civilized society in the 21st century. There is a looming constitutional crisis which would make the political, legal, economic and social life of the citizens of the Republic of South Sudan to be short, brutish and harsh. Already an iota of the same has been felt by the victims of the current clashes that began last December in which an estimated 10, 000 people have been killed. It is apparent that the looming constitutional crisis is on the permanent constitution process. Article 202(1) mandates the President to appoint the National Constitutional Review Commission within six months from the effective date of the constitution, that is 9th July, 2011. This mathematically means that by 9th January, 2012, the said commission shall have been established. This however delayed leading to the rushed formation of a commission mid last year by the presidency. The delay in the formation of the commission itself is an automatic delay in the meeting of all the necessary constitutional time frames on the part of the commission which has a direct bearing on when the permanent constitution will be adopted and subsequently its adoption and the holding of general elections under the new permanent constitution. Now that the commission has been dilly dallying with its mandate under Article 202(4), (6), (8) and (10) of the constitution, this might trigger an unconstitutional extension of the perceived end of tenure of the current constitutionally elected government and its other arms, a situation which in a country such as South Sudan with a lot of power hungry and power clinging tendencies, would at worst put the country into unnecessary political anxiety and constraints. Whereas this may seem dependant on the practicalities on the ground of the political economy, it may not be so because the powers and institutions that-be did not perform their constitutionally stipulated roles within the constitutional timeframes. However much the Constitutional Review Commission speeds up its role, it may find it rather hard and cumbersome to produce a draft constitution that is apt to the wide variety of South Sudanese populace within one year before the end of the transitional period. Should it succeed in doing so, it would have produced a half-baked legal document which may cause unnecessary political blame games as those of the current transitional constitution which during its drafting stages there were various versions and drafts advocating totally parallel inspirations and aspirations. As far as the constitutional time frame is concerned, the Constitutional Review Commission should have by 9th January, 2013 presented a draft constitutional text to the President together with an Explanatory Report, but at the time of this writing, the author is aware that the Commission has hardly prepared a draft constitutional text and neither has it prepared an Explanatory Report to the President. Such

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simple yet crucial dynamics are what we have always taken for granted which have proved to bring troubles in the country. The National Constitutional Conference is supposed to be convened by the President after the Constitutional Review Commission has presented to him the draft constitutional text. The National Constitutional Conference is further expected to submit the same Draft Constitutional text to the President within six months of its formation, which is by 9th July, 2013.Up to now the National Constitutional Conference is not in place- has not been convened. Bearing in mind the fact that the South Sudan 2011 Transitional Constitution is a shallow and circumvented document, and does not circumscribe the presidents’ powers, much is needed to be done in order to remedy some of the things which many politicians, academics, civil society and the elites contended to be unfit for a democratic state. Examples of these resentments include, the system of government- Federalism vs. Decentralization, Parliamentary vs. Presidential system, Constitutional supremacy vs. Parliamentary supremacy, Bicameral vs. Single house, a Collegiate presidency vs. Non-Collegiate presidency, Checks and balances vs. Absolute presidential prerogative/imperial presidency; whether the President has power to remove a democratically elected State Governor; military detachment from the ruling party, the subjection of the military to civilian rule and the issue of foreign policy. The constitution further provides that the Government should conduct a national census before the end of the transitional period so as to have a concrete formula for the creation of new constituencies to be used in the general elections at the end of the transitional period. This too has not been done despite the reality that under international standards, a six months survey before the real census is conducted must be carried out. The same will not take place soon and is bound to delay the elections and other matters connected with census. The current belligerence has further complicated things such that should the peace talks in Addis Ababa succeed, the possibility of a permanent constitutional process being initiated in a parallel forum is imminent and so is the formation of grand coalition or interim government. With government bureaucracies being rampant in modern African states, such factors are a potential threat to constitutional making process before the end of the transitional period. The mantle is now with the current government and the yet to be formed interim government, if at all it were to materialize, to avert the looming constitutional crisis. For the subsisting constitutional crisis, some legal measures, be they legislative or administrative should be taken forthwith.

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The Fallacy of Sovereignty before the ICC:

-The Kenyan ExperienceA political resolution can never have an impact on a legal process well anchored on ideology of justice. However many political resolutions would be passed by the AU, the fact that they lack legal justification is in itself sufficient evidence that they are fruitless efforts. BY JB ONG’ANYA

I

n Africa, justice has always been sacrificed at the altar of impunity. There is a trend amongst African leaders indicted of heinous crimes before the International Criminal Court (hereinafter ICC) of invoking ‘sovereignty’ whenever they are called upon by the court to answer to the charges. A lay person may mistake sovereignty to be a defense before the ICC, which is not actually the case. This article therefore explores three issues. Whether the principle of sovereignty exempt a sitting president from the proceedings at the ICC; whether a sitting President enjoys immunity from the ICC and whether African Union politics have an impact on a legal process. Though this appears to be a problem affecting many African leaders, for purposes of this article, I will confine myself to the events unfolding in Kenya. Kenya is a classic example because its President and Deputy are currently facing charges at the ICC. Therefore in addressing the said issues a number of rules will come in handy. The Rome Statute of the ICC, which Kenya is a State party to, the Constitution of Kenya and the Vienna Convention on Diplomatic Relations 1961. Whether the Principle of Sovereignty exempts a sitting President from the ICC. Immediately the ICC judges issued summon to President Kenyatta to appear before them on 8th October 2014, politicians, largely drawn from his ruling coalition alleged that Kenya is sovereign country and as such the President cannot appear before the court. Sovereignty is the supreme dominion, authority or rule. (Black’s Law Dictionary 8th Ed). “The essence of statehood is sovereignty, the principle that each nation answers only to its own domestic order and is not accountable to a larger international community, save only to the extent it has consented to do so. Sovereign States are thus conceived as hermetically sealed units, atoms that spin around an international orbit, sometimes colliding, sometimes cooperating, but always separated apart.” (David J Bederman, International Law Frameworks 50 (2001)). Walking down the memory lane, the historical development of sovereignty reveals that the term ‘sovereignty’ was identified from the archaic pre-French Revolution when the sovereign was the embodiment of the State. As such he was above the law, as he was the entity which created the law, the person from whom the law emanated. The sovereign and the State were perceived as one and the same thing. (Elizabeth Helen Franey, Immunity, Individuals and International Law: which individuals are immune from the jurisdiction of National Courts under International Law?) Africa Law Times Back To Top

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I submit that time has since passed, and that this archaic way of defining ‘sovereignty’ cannot pass the test of rule of law. In those days, by invoking the term sovereignty, then that would mean that a wrong committed amounts to an ‘act of state’ and as such no prosecution can be preferred. The theory of “Act of State” means that the act performed by a person as an organ of the State – whether he was Head of State or a responsible official acting on the Government’s orders – must be regarded as an act of the State alone. The effect of this is to absolve the individual of personal responsibility. By invoking the principle of sovereignty, such ‘leaders’ want to create a link between the institution of Presidency and the sovereignty of Kenya as a State, so that it appears as if Kenya is on trial. When an act is attributed to a state, such a state is immune under the doctrine of State immunity. However, from whichever stretch of imagination it is difficult to associate individual wrongful acts committed in an individual capacity to an act of State, so as to be absolved of liability. I choose to use ‘power of the pen’ to remind Kenyan politicians fond of invoking the principle of sovereignty that KENYA IS NOT ON TRIAL but individuals are. Sovereignty of the people of Kenya should never be used as a hindrance to the wheels of justice considering that it is the same citizens who were victims of such atrocities. In this modern age, democracies have come to appreciate the role of rule of law in bringing accountability by subjecting all persons regardless of their social status to the law. From the principle of sovereignty, flows another important principle – sovereign equality of States. The Black’s Law Dictionary (8th Ed) defines it as the principle that nations have the right to enjoy integrity and political independence, free from intervention by other States. True to this principle, all States need to be respected, but this does not mean that the ICC is in any way interfering with our sovereignty. This principle is true to the international criminal law principle of complementarily. The principle of complementarily allows a sovereign State to first deal with the matter or prosecute the perpetrators under its domestic laws and if its “unwilling or unable” to do so, then the ICC intervenes. Article 1 of the Rome Statute read together with paragraph 10 of the preamble provides that the jurisdiction of the ICC shall be complementary to the national criminal jurisdiction. This is the same feeling that one has after reading Article 17(1) of the same statute. The drafters of the Rome Statute rightly contemplated a scenario where a State party would be unwilling to prosecute the perpetrators or even unable to do so. It is at that point that the ICC will pop in. The Kenyan experience is more or less the same. The ICC never came to us, but we went for it. We took ourselves to the ICC. Kenya was given three chances to establish a local tribunal to try the perpetrators failure of which the cases would be referred to the ICC. We squandered all the three chances chanting emphatically ‘let’s not be vague let’s go to Hague.’ We communicated to the whole World that we had no faith in our own judicial mechanisms and that ICC was the better option. What has so far changed? Is it because politically, ‘wrong’ persons were charged? Who then will listen to the cry of the victims? These are some of the questions that

“We communicated to the whole World that we had no faith in our own judicial mechanisms and that ICC was the better option”

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continue lingering in our minds. When today we talk about sovereignty, was it lost to us when we voted the Hague way? Methinks that in Africa, impunity has really taken root that justice is now a cliché’. I submit that sovereignty of Kenya as a nation has got nothing to do with the cases at ICC. Even though the president and his deputy are facing charges at the ICC, they have to bear their own burden and carry their own cross and not Kenyans to do it for them. Whether a sitting president enjoys immunity from the ICC. International criminal law establishes the principle of Individual Criminal Responsibility. This is because it is individuals and not State entities that commit international crimes. Whoever commits international crime must be brought to account. This principle has been appreciated in a number of statutes establishing international criminal tribunals, to show how committed the international community is in fighting impunity. For instance, Article 7 of Charter of the International Military Tribunal at Nuremberg, Article 6 of the Charter of the International Military Tribunal for the Far East and that is why Article 25(2) of the Rome Statute (which creates a permanent International Criminal Court (ICC) provides that a person who commits a crime within the jurisdiction of the court shall be individually responsible and liable for punishment. It is not important that the alleged perpetrator committed the crime in person, as long as it can be established that he was also involved indirectly, he shall still be responsible. (Article 25(3) of Rome Statute). I believe that no harm shall be suffered when a sitting President appears at the ICC to answer to charges or even attend proceedings before the court, as that is the only opportunity that he/she can have to clear his/her name. Considering the nature of the work of the President that may not allow him to attend proceedings continuously, I believe that in the rare times that he may find himself needed in court, he should use that opportunity not only to clear his name but to demonstrate to the World that he has nothing to fear and/or hide, and more importantly, he holistically observe the rule of law. An argument may be advanced that a sitting president enjoys immunity before courts of law. The truth in this statement is limited to the extent that such immunity does not extend to international crimes. A sitting president, just like any other member of the diplomatic core may enjoy immunity within domestic courts including domestic court of other States. The effect is that such a President cannot be prosecuted in any other country’s jurisdiction. However, since international crimes are considered to be serious crimes that shock the conscience of the international community at large, they have acquired the status of jus cogens and consequently the international community has an erga omnes obligation to prosecute such crimes. In Siderman de Blake v Republic of Argentina (1992) the court stated that the argument begins from the principle that jus cogens norms ‘enjoy the highest status within international law,’ and thus prevail over and invalidate other rules of international law in conflict with them…since sovereign immunity itself is a principle of international law, it is trumped by jus cogens. Since a jus cogens is a higher norm, superior to international law rules on diplomatic immunity, it becomes necessary to punish perpetrators of such crimes and this explains why the ICC is keen to implement the principle of individual criminal responsibility. I submit that in respect to international crimes, diplomatic immunity cannot stand on its way. Immunity is inferior to the principle individual criminal responsibility. The Rome Statute is determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the preventions of such crimes. (Para 5 Preamble to the Rome Statute) It has endeavored to treat all suspects equally in its application of the law and that is why Article 27 is emphatic that the

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application of the Rome Statute will not regard the official capacity of a suspect. This in itself already demonstrates why a sitting President, former President or any other government official cannot be exempted from prosecution at the ICC, regardless of his official position. International law recognizes two forms of immunity, functional immunity (rationae materiae) and personal immunity (rationae personae). Functional immunity protects conduct carried out on behalf of a State. It is linked to the maxim that a State may not sit in judgment on the policies and actions of another State, since they are both sovereign and equal. Consequently, functional immunity can be a shield for public officials from liability for acts performed on behalf of a State and its organs. It attaches to a comparatively large class of officials – all who carry out State functions. On the other hand, Personal Immunity can be successfully pleaded as a defense to prevent criminal prosecution of a Head of State, Head of Government or a high ranking government official from the jurisdiction of a foreign State. It sits pretty well with the provisions of Article 31(1) of the VCDR which entitles a diplomatic agent to enjoy immunity from criminal jurisdiction of the receiving State. The Kenyan Constitution stamps its authority in this issue. Though it immunes the President from both criminal and civil proceedings during his tenure in office within the domestic court, (Article 143(1)(2)) it is emphatic that the President shall not be immune from crimes which the President may be prosecuted under a treaty to which Kenya is party to which prohibits such immunity (Article 143(4)). From the reading of Article 143(4) together with Article 2(6) of the Constitution of Kenya, it is evident that the Rome Statute forms part of the laws of Kenya, and since it prosecutes any person regardless of the official capacity of the suspect (Article 27 Rome Statute), a sitting President has no excuse but to oblige to appear before the court as and when required. Whether African Union politics have an impact on a legal process. I choose deliberately to refer to African Union (hereinafter AU) events as politics because most of their resolutions falls squarely within the purview of international politics. The AU has been adamant that none of the sitting Heads of State (who are suspected of heinous crimes) should appear before the ICC. It has gone ahead and passed ‘political’ resolution to this effect. It is absurd that the membership of the AU constitutes some of the elite leaders in Africa – Heads of States ‘democratically’ elected to protect the interests of their countries and citizens. Interestingly, some of the constituting members of the AU have been ‘booked’ by the ICC’s Office of the Prosecutor. But whenever, they meet, they selfishly, engage their minds in international politics that is aimed at protecting their own interests at the expense of the electorates who elected them. Whenever African countries are at war with each other, take an instance of Central African Republic and South Sudan, the African Union is always nowhere to be seen. They won’t convene the urgent meetings they are characterized with when the issue is touching on ICC and directly affecting one of their own. It appears like its normal to lose a life of an ordinary African through war or calamity and abnormal to lose an elite African leader in the name of Head of State to the jaws of ICC. It’s indeed a fallacy how sovereignty will be used to defend a few, whereas the true ‘owners’ of sovereignty (sovereignty belongs to the people) are left to languish. A question arises as to the legal effect of the resolutions passed by the AU. What therefore is the legal impact of the AU resolution that a sitting Head of State should not appear before the ICC? My response is simple; a political resolution can never have an impact on a legal process well anchored on ideology of justice. However many political resolutions would be passed by the AU, the fact that they lack legal justification is in itself sufficient evidence that they are fruitless efforts.

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African citizenry is yearning for that day that justice will be their shield and defender, when the doors of justice will be knocked and someone heeds to that call. Unfortunately, the deeds of AU do not indicate that they are equal to the task. When the AU passes a resolution prohibiting sitting Heads of States to appear before the ICC, they turn their backs to the plight of the poor victims who lost both property and life. Does the AU want to tell us that no one should be responsible for the loss of life and property in South Sudan and Central African Republic, or even Kenya, for instance? I submit that for there to be peace, there should be justice. Peace and justice are like Siamese twins, they are inseparable. Africans must reject the idea of pulling out of the Rome Statute of the ICC. There is no cogent argument as to why we should withdraw out of the document (Rome Statute) that we voluntarily ratified some years back. What has since changed that we should take such a risk? I call it a risk because, from the look of things, no African country is ready to prosecute some of their honchos. AU has demonstrated that in Africa, impunity thrives; people can commission international crimes and walk scot free. The ‘big fish’ mentality needs to be condemned because the populous ‘small fish’ cry for justice. As I conclude, because conclude I must, I want to challenge the AU today, to demonstrate to us, that as we pull out of the ICC, where will such cases be heard? This question disturbs me because even the so called ‘highest’ court in Africa, African Court on Human and People’s Rights does not have the jurisdiction to prosecute international crimes. In addition, some of the domestic laws in African countries, such as Constitutions, expressly prevent prosecution of Heads of State for any offence, be it criminal or civil for fear that it will affect the performance of their functions. Alternatively, assuming that the AU establishes an African Court to deal with heinous crimes in African soil, and cloths it with the required jurisdiction, what stops the AU from passing resolutions preventing the court from prosecuting the accused persons? From the comfort of my seat, I am happy that my President appeared before the ICC as required by the judges and returned home safely. Though he betrayed the AU resolution, he demonstrated to the AU that their resolution is mere political gimmick with no legal effect at all.

Name: Varsity: Course: Contact:

Mr. Jack Brian Ong’anya Mt. Kenya University, Law School Nairobi, Kenya Bachelors of Law (2012 – 2015) [email protected] + 254 (0) 711 185 636

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Life

ALT

The ALTernative Break

Appreciating God’s Work BY BRENDA RANDIGA

|LIFE MUSE| God is such a big God. Just think about it. His greatness we cannot even comprehend. He is holy, unchanging, infinite, all powerful, all wise, all knowing. He is LOVE. In Genesis when God was creating the earth, at the end of the day He would look at His creation and see that it was good. And God saw that it was good is what is written after every creation is made. Then in verse 27 ‘’so God created man in His own image.’’ This time he looked at every thing he had made and it was not just good. Verse 31 ‘’ and God saw everything that He had made and behold, it was VERY good.’’ When God was creating you, bear in mind that He is all powerful, all knowing and the ultimate sculptor then sprinkle infinite love on top of that, He must have been creating the most perfect thing in the entire universe. Your eyes, the shape of your nose, the perfect arch of your ears, the sharp precision of the spaces between your teeth (others with a perfect gap between their teeth), your height, and the list is endless. All of it is the epitome of perfection. So if you’re a lady and you are seated there whining about how small your boobs are or how your waist is getting wider and wider, please snap out of it. There is no definition of beauty except from the word of God. Some dark skinned people are busy

trying to make themselves light while the white people are spending hours in the sun to get tanned, it doesn’t make sense. Today however, I’m not going to talk about your perfect body. The topic for today is a little controversial and a little hard to swallow for a lot of ladies but I’m going to say it anyways. So here it goes, since you have gotten the magnitude of how perfect your NATURAL physical appearance is, why don’t you stay natural. I’m talking about your hair. We all agree that God is all knowing so He has a reason why He made the African hair kinky. He saw it fitting to make it that way but what do most of us do? We straighten it so that it looses its natural texture, we put all sorts of wigs weaves and even synthetic peace or should I call them braids, so that we can look ‘better’ or more presentable. Have you ever seen a white dude with dreads? I have and he looked hideous. When God was creating us, with such tender care and skill he put EACH strand of hair counting them. Luke 12:7 and Mathew 10:30 ‘’even the very hairs of your head are all numbered.’’ Unfortunately even after loving us so much and creating us the best way there could ever be, we still put on these things on our head to hide that which is perfect. I honestly don’t think that is His will. When He says you are fearfully and wonderfully made that’s exactly how you

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should take it for and go with it. All these weaves and braids are definitely not of God and if something is not of God then you know who it belongs to. I don’t think God will inspire someone to make cute Brazilian virgin hair so that it can enhance the beauty He already gave us. It’s like telling Him that He didn’t make us good enough and Him agreeing with it. So ladies this is my message this month- get rid of all those hair extensions, and if you have chemical in your hair, please don’t put it again so that your hair can go back to its original state. It’s ironic because in our attempts to make our hair longer we actually make it worse then after that you’ll start buying things like treatment to restore what you removed yourself but God had already given to you. I know many Christians will start telling me that I’m moving away from the ‘its all grace and no works’ doctrine but that’s not the case. If you truly knew yourself from Gods eyes, from His point of view and how beautiful you are you wouldn’t put these things. Some will argue it’s for manageability. Natural hair is easier and cheaper to manage than the other types, if you treat it well of

course. Some will say ‘but I know of a lot of pastors and powerful strong women of God who put them’. I will have to admit that I don’t have the answers to everything and that I’m also a work in progress. The main reason why I wrote about this is because God told our bible study group this message and he confirmed to each individual in His own way obviously because it’s not an easy thing to do. So we are trying to get out the message to reach as many ladies as possible even if some or rather most people will think we are crazy. We are not crazy and we are not some sort of a cult. We are just normal young ladies who meet every month for bible study. In fact I have omitted a lot of things about the weaves and wigs so that the message will be more palatable. If you are not sure about what you think about this, then it’s easy to get a clearer sure answer. Just ask God to confirm it to you, and go with an open mind ready for whichever answer you will get and He will definitely answer you. Have yourself a lovely month. Brenda A. Randiga is a Commerce student of University of Nairobi, Kenya, and a columnist of the Kenyan Legal Magazine (www.kenyanlegal.com ).

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Moment with Self By Sheila Mokaya Most people are quick to decide on a person’s personality but really how much can they tell on their own personality. It is very exciting to know the different types of personalities as it helps one improve their interpersonal skills by helping us know what we expect from each other. Broadly there are two types of personalities: the introverts and the extroverts. Introverts are those who embrace solitude and require alone time. They are the types who feel lonely even amidst a crowd. They express their ideas more in writing as this affords them an opportunity to selfreflect. Extroverts on the other hand like to mingle and move around in social situations. They express themselves more verbally. Unlike introverts who derive their energy from within, extroverts are charged up by people, places and stimuli outside of them. Introverts are wrongly presumed to be shy. This is not usually the case, Susan Cain in her book Quiet: “The Power of Introverts in a World That Can’t Stop Talking defines shyness as the fear of social disapproval or humiliation while introversion is a preference for environments that are not over stimulating. Shyness is inherently painful, introversion is not.” Other existing myths on these two personalities include:  Introverts don’t make good public speakers  Introverts are unhappy compared to extroverts who are happier. Reality is that they simply express their happiness in different ways; introverts prefer keeping a low profile.  Extroverts are bad listeners. Conversely such people easily

form rapports with others and know how to make people comfortable. The methodology they use is different from that of Introverts who enjoy deep one on one conversation.  Extroverts don’t like quiet personal time and are shallow There is however a more expansive classification of human personality. These still fall in the big bracket of introverts and extroverts. They are:  The sanguine type  The phlegmatic type  The choleric type  The melancholic type The sanguine type It is characterized by spontaneity, optimism, enthusiasm, high energy, mental flexibility, novelty seeking, impulsiveness and curiosity. Their curiosity is expressed in their love for reading different kinds of knowledge. They like luxurious lifestyles and thus are big spenders. They are willing to take risks in pursuit of these interests. They can’t tolerate boredom and routine jobs, repetitive experiences and boring companions irritate them. They are impulsive and often find it difficult to control their cravings. They are last minute planners and procrastinate tasks as they are usually busy due to their high energy. They are the most creative people in arts music and are very autonomous and unconventional. They make it their joy to seek joy and happiness. However such people are easily susceptible to addictions such as sex and alcohol. Sheila Mokaya is a second year Law Student at Kenyatta University, Parklands campus and the Kenyan Legal Magazine’s assistant editor(www.kenyanlegal.com).

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TABLE OF CONTENTS

Table of Contents Peaceful Polls Key In Mozambique’s War On Poverty .................................... 4 Mandatory Death Penalty On Trial.................................................................... 7 Humanitarian Law And Weapons: The Gory Tale Of A World Sacrificed At The Altar Of Imperial Aggrandizement. .............................................................................................. 10 The Silence Of Reeva Steenkamp ................................................................... 17 The Subsisting And Looming Constitutional Crisis In South Sudan. ............. 22 The Fallacy Of Sovereignty Before The Icc: -The Kenyan Experience- ................................................................................ 27 ALTlife Appreciating God’s Work………………………………………..…..32 Table Of Contents ............................................................................................ 35

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