Daystar University Repository :: Browsing by Author "Musikali, Lois M."

Browsing by Author "Musikali, Lois M."

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Building Bridges Initiative Proposals: Consociational Democracy and the Constitution of Kenya 2010
(East Africa Law Journal, 2020) Irungu, K; Omondi, S; Ojwang; Musikali, Lois M.
In 2018 Kenya established a task force commonly known as the "Building Bridges Initiative ". The aim of the taskforce was to generate constitutional amendment proposals that could, amongst other objectives, remedy cyclic ethnic conflict during presidential elections. On 26 Noven1ber 2019, the task force report was unveiled at Bomas of Kenya, Nairobi. The recommendations of the taskforce bore features of a constitutional democracy. They included proposals for a change of Kenya's electoral system form majoritarian to proportional representation; re-establishment of the Office of the Official Opposition and the position of Prime Minister; and the selection of members of the cabinet from amongst elected Members of Parliament. This article examines these proposals within the frame work of the Constitution of Kenya 2010.it argues that the proposals may unravel the framework that underpins the Constitution of Kenya 2010. It concludes by proposing that the task force craft other possible remedies that do not offend the democratic underpinnings of the Constitution of Kenya 2010.
Data Colonialism: The New Frontier in Corporate Governance and the ‘Corporations and Human Rights’ Discourse.
(Governance Journal, 2022) Musikali, Lois M.
This paper provides an overview of corporate governance scholarship from inception to-date and situates the current issue of managing Big Data within corporate governance practice and scholarship. Its aim is to highlight the possible impact of Big Data on current corporate governance practice and regulation with a view to encouraging further research on the same. Whilst digitisation has aided advances in good corporate governance practice and regulation, the effects of digitisation have not all been positive: a significant number of corporate governance scandals today are digital. With a focus on data mining, this paper explores this phenomenon, Africa’s readiness for it and the surrounding issues it raises both within corporate governance and human rights. That Big Corporations are able to mine data without the data subjects knowledge and use it to their advantage without the data subject’s informed consent and compensation has resulted in a phenomenon referred to as ‘data colonialism’. This paper evaluates the extent to which Africa and in particular Kenya is prepared for the current world of data harvesting and assesses the need for effective data mining regulation in Africa. It considers the effect of the General Data Protection Regulation (GDPR) on Kenya’s Data Protection Act and questions whether Kenya’s legal framework can effectively deal with data mining while highlighting the role that corporate governance has in improving accountability in the way Big Corporations handle data.
Director and Shareholding Interlocks in Kenya's Plcs: How to Address the Nominee Question? A Cultural Perspective
(International Company and Commercial Law Review, 2015) Musikali, Lois M.
This paper considers the position of nominee directors in Kenya’s public listed companies. It takes a comparative approach drawing on the experiences of England and Australia in regulating nominee directors. Taking into account Kenya’s cultural profile, this paper suggests the direction that Kenya should take in regulating the nominee director position.
The Law Affecting Corporate Governance in Kenya: A Need for Review
(International Company and Commercial Law Review, 2008) Musikali, Lois M.
There is increasing evidence that a country's legal system plays a significant role in determining the success of its corporate governance system. Research has shown that good corporate governance is more likely to be associated with countries with a strong legal system.1 However, in the recent move towards the privatisation of corporations, Kenya, like other developing countries, has adopted a corporate governance code that is drafted from a combination of codes from developed countries with little thought being given to the underlying conditions of the market in which this code is to be enforced. A significant amount of training of company directors on the importance of good corporate governance is underway.
Legislating Corporate Social Responsibility in Kenya’s Extractive Industry: A Case study of the Mui Coal Mining Project
(Africa Nazarene University Law Journal, 2015) Musikali, Lois M.; Musikali, Elizabeth M
Corporate governance scholarship, so far, has focused on a rather narrow, finance-dominated, agency theory perspective. This has been the case even in defining corporate social responsibility (CSR). Corporate social responsibility has only been justified where it is considered to be financially beneficial to the company. It is on that basis that this article addresses the question of whether such a paradigm is justifiable when applied to developing countries such as Kenya. The article is a case study of CSR in Kenya’s mining industry that is dominated by multinationals. In particular, it focuses on the treatment of stakeholders in the Mui Coal Mining Project in Kitui County, Kenya
A Member of Parliament’s Re-Election Chances in Kenya: Hate Speech versus Anti-Corruption Platform
(Journal of Law and Ethics, 2019) Irungu, K; Omondi, S; Ojwang, D; Musikali, Lois M.
The Role of Data Governance in Development in Kenya
(Daystar University, School of Law, 2022) Musikali, Lois M.
Recently, there have been various attempts by the Government of Kenya, directly or indirectly, to collect data from its citizens. Amongst these are the efforts at Huduma Number registration as well as the recent call by the Communication Authority of Kenya to re-register all telephone lines. The motives behind these efforts at data collection have been shrouded in controversy with the government arguing that data collection is a necessity for economic development while a significant number of citizens have been wary that data collection by government agencies would curtail their constitutional right to privacy among other constitutional rights. The aim of this paper is to explore these two perspectives, their validity and the role of data governance in mediating this of citizen-government distrust and thereby facilitating economic development. This paper will begin by reviewing the role of trust in general governance and development, whether governments can be trusted, and what causes citizen to distrust their governments. It will then explore the benefits of citizen-government trust for economic development. This will be followed by a consideration of the role of data governance in creating and increasing citizen-government trust and thereby making the collection of data an easier activity when the same is required for economic development. This paper will review Kenya’s legal framework on data protection, particularly, the Data Protection Act, with a view to making suggestions for reform that would increase citizen-government trust during government-led data collection exercises and in so doing facilitate economic development.
The Role of Mediation in the Resolution of the South Sudan Crisis
(frica Nazarene University Law Journal, 2013) Musikali, Priscilla; Musikali, Lois M.
This paper is a study of the function of mediation as a dispute resolution mechanism in the attainment of independence in South Sudan. The motivation for this paper is an interest in the newly formed state, and a fascination with the manner in which the state was able to transform its situation from conflict to peace. Only a few jurisdictions have been able to secede from their parent states; namely Eritrea from Ethiopia, and the controversial secession of Kosovo from Serbia. This paper is therefore a great opportunity to explore how South Sudan, with the help of other actors was able to secure peace and secession through mediation. It will prove, with accompanying evidence, that without the input of mediation as a conflict resolution mechanism, the birth of South Sudan may not have been possible. It will demonstrate that the Comprehensive Peace Agreement played a central role in securing independence and autonomy through a referendum that expressed the will of the people of South Sudan. It is important to note that any peace process results from conflict and the need for a minority group in a state to be free: hence this paper will concentrate at length in analysing the factors that motivated the war, as well as the need for self-determination. It will also explain why the recognition of the new state of South Sudan has not been debated. The use of mediation and peace agreements has been employed in peace processes in jurisdictions such as Cambodia; and this paper will distinguish the agreements in South Sudan and Cambodia, to determine if South Sudan is unique and had the benefit of learning from previous peace agreements. It will argue that mediation and peace agreements are successful ways of providing lasting peace, self-determination and independence to oppressed minority groups. Moreover, the function of international law in mediation will be illustrated throughout the paper.
Why Criminal Sanctions Still Matter in Corporate Governance
(International Company and Commercial Law Review, 2009) Musikali, Lois M.
The general concern about the adequacy of self-regulation as a mode of policing corporations has once again come to the forefront of the corporate governance debate following the current economic crisis. Irresponsible lending to individuals who cannot afford to repay loans has resulted in the near collapse and nationalisation of banks such as Northern Rock and Bradford & Bingley in the United Kingdom and Fannie Mae and Freddie Mac in the United States.1 Once again, the Government has had to intervene to prevent an economic crisis, by nationalising failing financial institutions to avoid them falling into liquidation. Government intervention in the regulation of markets, particularly through the use of criminal sanctions, has not been popular in recent years. The use of criminal sanctions to regulate business activities is generally perceived as being an overreaction that is likely to discourage directors from taking the risk that is necessary to run a business, thereby slowing down economic growth and interfering with profitability. It is frequently argued that criminal sanctions are not necessary in the regulation of business and corporate governance in particular. Among the arguments made against the use of criminal sanctions in corporate governance is the procedural argument which perceives the use of criminal sanctions as being an expensive way of enforcing regulation,2 which has a high burden of proof and as such is prohibitive to those seeking remedies for expropriation, as shareholders are required to demonstrate the director's culpability.3 In addition, it is argued that criminal sanctions cannot provide restitution to shareholders and employees who have lost their jobs.4 On top of that, the use of criminal sanctions is likely to result in over-deterrence of prospective directors, making them risk averse which is detrimental to the long-term benefit of the company.5 Others simply claim that not everyone is deterred by the criminal sanction6 and therefore using criminal sanctions will not deter a self-interested director. However, government intervention, hitherto a mechanism of last resort, would now seem to be an inevitable consequence of the failure of markets to regulate themselves, and the only method likely to guarantee at least a modicum of financial stability during the current crisis. Stability is important as the success of any economy in the 21st century lies in its ability to create and maintain successful corporations. The survival and long-term profitability of corporations is no longer a private interest which merely affects those who deal with the corporation at a primary level, for instance investors, but also a public interest affecting the welfare of stakeholders such as employees to whom it provides jobs and pensions. When financial scandals occur, employees stand to lose their livelihoods not only in the form of jobs but also of life-long pensions. The Government therefore has a responsibility to ensure that employees as well as other stakeholders of the corporation are protected from the fraudulent acts of managers who do not act in the best interests of the company. The success of the corporation is therefore a public interest that, to a certain degree, ought to be protected through state regulation. This article considers the role of law in corporate governance, as legislation is one of *I.C.C.L.R. 134 the key ways in which the Government has intervened in previous crises, such as Enron in the United States. The focus of this article is an investigation into whether government intervention in corporate governance through criminal sanctions is necessary and to what extent it affects the ability of directors to perform their entrepreneurship function of risk-taking. This article begins by addressing the function of national legislation in corporate governance, which might be thought of as hard law, as contrasted with the soft law of the various City codes of practice, and then explains how criminal sanctions apply to the corporate environment.
Why Kenya should reconsider its ultra vires doctrine in corporate law
(International Company and Commercial Law Review, 2010) Musikali, Lois M.
The ultra vires1 doctrine in company law, namely that a company is formed only to pursue the objects specified in its memorandum of association and if it acts outside those objects the transaction is ultra vires and void,2 has for a long time been one of the more intractable problems facing persons dealing with companies in common law jurisdictions.3 Under the ultra vires doctrine, companies could avoid liability under contracts with innocent third parties on the ground that the company never had the power to enter into the said contracts in the first place. A significant number of common law jurisdictions, including Australia, Canada, New Zealand and Hong Kong, and most recently England, have taken steps to abolish the doctrine of ultra vires. This article considers the provisions of Kenya's Companies Act (the Act)4 that provide for the doctrines of ultra vires and why there is need to review them. The discussion within this article is limited to the ultra vires doctrine as it relates to the objects clause and not to the general breach of directors duties in public listed companies.

Browsing by Author "Musikali, Lois M."

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