Kabarak Law Review

Editorial

Nadya Rashid — 2025-12-13

No abstract

From seats to voices: Analysing the effective participation of women in governance in the Kenyan parliament

Barrack Onyango Ojummah — 2025-12-13

Since Kenya’s independence, women have strived for equal participation in governance, despite facing significant challenges due to societal norms. The Constitution of Kenya (2010) introduced gender reforms, enhancing representation through quotas and decentralisation. Since 2013, women’s representation in Kenya’s parliament has increased. However, the question that remains is whether the elected or nominated women have exercised their roles effectively. This paper traces women’s political participation in Kenya from the pre-colonial to the post-2010 Constitution period, highlighting the fight for gender parity and subsequent representation. It calls for gender equality rather than mere parity thereby addressing concerns about women in parliament being ‘voiceless representatives.’ This paper emphasises the need for women’s meaningful participation in decision-making processes, including their presence in parliamentary committees. This entails not only numerical representation but also active involvement in shaping policies and governance agendas, making their presence substantive rather than symbolic.

A socio-economic rights centred evaluation of Kenya’s law and practice on sovereign debt acquisition, servicing and restructuring

Alex Melonye Tamei — 2025-12-13

This paper addresses Kenya’s rising sovereign debt burden and its implications for socio-economic rights. Despite constitutional mandates to safeguard these rights, Kenya’s debt accumulation and management practices seem to prioritise servicing obligations over citizen welfare. This study comprehensively analyses Kenya’s debt landscape, specifically looking at: debt accumulation, the link between sovereign debt and socio-economic rights, the legal framework underpinning sovereign debt in Kenya and its flaws, and international best practices in dealing with sovereign debt. Through this, the study aims to inform decision-making for more equitable and sustainable debt management practices in Kenya, aligning with constitutional obligations and promoting the fulfilment of socio-economic rights. The insights in this paper are intended to form the groundwork for a socio-economic rights-centred approach to sovereign debt acquisition, servicing, and restructuring.

An assessment of the efficiency and effectiveness of compulsory mediation in Malawi

Anastanzio Sitolo — 2025-12-13

This article analyses the efficiency and effectiveness of mandatory judgeled mediation in Malawi. It discusses whether mandatory judge-led mediation meets the objectives of reducing costs, delay, and case backlog as provided for under the High Court Civil Procedure Rules, 2017. This article also analyses the benefits, challenges, and the parties’ satisfaction with mandatory mediation. This study argues that although Malawi’s mandatory mediation may resolve disputes expeditiously, reduce case backlog and costs, it threatens the parties’ right to trial and infringes mediation principles including voluntariness, party self-determination, flexibility, and informality. Further, while the Constitution of Malawi recognises and promotes the use of alternative dispute resolution mechanisms such as mediation to enhance access to justice, Malawi lacks institutions, policies and comprehensive legislation which can sufficiently promote the use of mediation and help to decongest courts in Malawi.

Decolonising Kenya’s legal system: The role of legal education, philosophical foundations, and constitutional interpretation

Rachael Kipkoech — 2025-12-13

This paper investigates the vital roles of legal education, philosophical foundations, and constitutional interpretation in decolonising Kenya’s legal system. It begins by contextualising decolonisation within historical frameworks of colonialism, highlighting the persistent influence of colonial structures on contemporary legal practices. The analysis reveals that legal education in Kenya has largely perpetuated colonial narratives, necessitating a shift towards inclusive pedagogies that integrate indigenous knowledge systems. Philosophically, the paper critiques simplistic notions of integrating indigenous practices, advocating instead for a nuanced approach that recognises the complexities of identity and culture in a postcolonial context. Furthermore, it examines how constitutional provisions can either support or obstruct the integration of customary laws into the national legal framework. Ultimately, this work underscores the necessity for comprehensive reforms across these domains to achieve a truly decolonised legal system in Kenya.

Towards a universal legal framework: The necessity of international legal regulation for surrogacy

Rebecca Andeso — 2025-12-13

The global rise of surrogacy, both as a medical practice and a commercial arrangement, has outpaced the development of international legal frameworks, leading to significant ethical, legal, and human rights concerns. Currently, surrogacy laws vary drastically across jurisdictions, ranging from outright prohibition to permissive commercial practices, often leaving surrogate mothers, intended parents, and children in vulnerable and uncertain legal positions. This paper argues that the absence of a cohesive international legal regime to regulate surrogacy exacerbates these disparities, fostering exploitation, forum shopping, and legal fragmentation, especially in cross-border surrogacy arrangements. Drawing upon comparative legal analysis and international human rights law, the paper advocates for the establishment of a universal legal framework that would harmonise surrogacy regulations across borders. Such a framework would address fundamental issues, including the protection of surrogate mothers from exploitation, the recognition and enforcement of parental rights across jurisdictions, and the safeguarding of the rights and welfare of children born through surrogacy. Through an analysis of existing frameworks and the evolving discourse, this paper argues that comprehensive international regulation is essential to address the global nature of surrogacy, while also balancing national autonomy with universal human rights protections.

Honouring our Elders - Ama Ata Aidoo: Celebrating her legacy in the twenty-first century

Rose A Sackeyfio — 2025-12-13

Renowned as Ghana’s foremost woman writer, Ama Ata Aidoo has built a distinguished career that spans decades of post-ndependence African history. A pioneer among African women writers, Aidoo is celebrated for her feminist contributions to postcolonial literature. Her body of work offers a nuanced exploration of African women’s experiences, revealing the layered challenges they face in colonial and postcolonial contexts. This essay explores her fictional works highlighting how her fictional characters confront local traditions, societal expectations, and issues of race, class, and gender inequality, particularly within transnational and Western frameworks.

Transforming African diplomacy: Salim Ahmed Salim’s vision of non-indifference and the evolution from OAU to AU

Antony Karol Muma — 2025-12-13

Dr Salim Ahmed Salim, a prominent Tanzanian diplomat, played a crucial role in transforming the Organisation of African Unity (OAU) into the African Union (AU) during his tenure from 1989 to 2001. This paper explores his transformative role in reshaping African diplomacy, focusing on his vision of moving from the principle of non-interference to nonindifference. During his tenure as Secretary General of the Organisation of African Unity (OAU) from 1989 to 2001, Salim advocated for proactive humanitarian intervention and collective responsibility among African nations, laying the foundation for the African Union (AU). His advocacy emphasised the importance of addressing internal crises, promoting human rights, and advancing mechanisms for conflict resolution. Salim’s legacy, particularly his influence on the AU’s adoption of the principle of nonindifference, continues to inspire governance and human rights protection across the continent.

Kianjokoma brothers tribute: The police accountability review An update of the Kianjokoma brothers’ case and the struggle for police accountability in Kenya

Tekin Saeko — 2025-12-13

No abstract

A critique of police response to the right to peaceful assembly, demonstration, and picketing in light of the 2024 Finance Bill protests

Caroline Gatonye — 2025-12-13

The events of June 2024 have brought to light a simmering dissent now emerging where it was once almost unheard of, among the ‘Gen Z’ youth. Kenyan youth have embraced their right to picket and peacefully assemble while seeking to dismantle the status quo. Yet, beneath this facade of a people’s sovereignty lies a troubling reality of state repression. This paper aims to critique the inappropriate use of police force especially by using live ammunition during protests and abducting and torturing demonstrators during the 2024 Finance Bill protests, particularly in relation to the implementation of Article 37 of the Constitution of Kenya. It also affirms the role of democracy in strengthening sovereignty and empowering a people in times of dissent.

A critique of the High Court’s ruling in FOA v RAO and 2 others in reinstating Section 12 of the Births and Deaths Registration Act

Jabez Oyaro — 2025-12-13

This case review critically examines the High Court’s decision in FOA v RAO and 2 others, which authorised the removal of a father’s name from a birth certificate after questioning the petitioner’s biological paternity. The case relies on Section 12 of the Births and Deaths Registration Act, a provision the High Court invalidated in LNW v Attorney General and 3 others, marking a troubling judicial departure that revives the application of an unconstitutional provision. Hence, this paper explores the inconsistencies in judicial reasoning regarding the rights of children born out of wedlock, focusing on the implications of the unconstitutionality of Section 12 of the Births and Deaths Registration Act.