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Item Does Kenya Practice Democracy or Epistocracy?(Daystar University, School of Law, 2022) Wekesa, MoniThe constitution of Kenya places the common person at the centre of democracy, starting from the preamble. Article 10 places public participation at the centre of decision making in matters affecting the common man, all government institutions are bound to involve the common person in policy making. The constitution prescribes public participation by giving the common man right to decide how he is to be governed, political rights such as vying for elective positions, voting and participating in constitutional referendums. This is based on the presumption that they can make informed choices. However, based on the elite theory of democracy where the elites are bound to rule - and as such use their wealth, connections and the fact that they are more educated than the average citizen, to control decisions and events within a state it is questionable whether in fact the common person does participate in effective democracy. There elites include ‘political’ brokers who are also ‘deep state’, and who influence legislation, appointments and even voting. These elites are sometimes referred to as epistocrats. The elites occupy a ‘privileged’ position in society that makes society listen to them. This then begs the question whether it is the common person or the epistocrats who actually determine the form of governance in Kenya. This paper uses a comparative approach on constitutional amendment procedures and practices to evaluate the sovereignty of the common person in Kenya.Item Communicating the Vote by Acclamation in Kenya Parliament: What does the Speaker Hear and whether it promotes democracy(Daystar University, School of Law, 2022) Kilonzo, KethiDistinguished Communication Scholar, Donald K. Smith (2013) asserts that “communication is what is heard, not only what is said. This assertion is in congruence with the communication process and models which appreciate the various elements that play a pivotal role in effective communication. One key determinant of effective communication is whether what the audience speaker hears and understands, is close or exact as what the source has said. This is the intended discourse of this paper, having in mind the Kenyan Parliament. After key issues have been debated, the speaker normally calls the house to vote on the motion. More often than not, the vote is by acclamation. And the decision is made by the speaker whether the AYEs or NAYs have it. This means that the decision is largely dependent on what the speaker hears, irrespective of how loud the AYEs or NAYs shout. In view of the foregoing and considering that members of parliament are the representatives of the people of Kenya, the mode of voting and how it is communicated is paramount. The fate of the sovereign will of the people and the promotion of democratic ideals depends on what the speaker hears through this mode of communicating the vote. The decision of the speaker further determines the extent to which the national values and principles of governance are upheld. It is therefore critical to examine this mode of communicating the vote with the following issues in mind; extent to which it realizes the sovereign will of the people; democratic ideals, constitutional values and principles of governance and established model(s) of effective communication, this paper scrutinizes select decisions that have been arrived at based on this approach and the significance of the same.Item Is The Triple Helix Approach to Commercialization of IP the Panacea For Africa?(Daystar University, School of Law, 2022) Wekesa, MoniCommercialization of IP depends on creations and inventions. These two invariably result from research and development (R & D). Africa spends less than 1% of her GDP on R & D activities. Additionally, there is very little coordination between various agencies dealing with IP in African countries. This is compounded by other factors such as low levels of IP awareness, an archaic academic culture at universities, lack of coordination in the use of research facilities, and lack of entrepreneurial skills amongst academics. Despite legislation to protect indigenous knowledge, very little comes out of it. Attempts by Ghana to commercialize her folklore has not borne fruits. The numerous institutions touching on R & D and IP in Morocco have not placed that country ahead of the others in matters of IP. South Africa, which has the highest expenditure on R & D at 0.8% if GDP does not produce as many patents as a single institution in USA. Consequently, the University of California registers more patents per year than the continent of Africa. The approach used by most institutions in Africa is one in which an institution attempts to interest industry. The diverse cultures operating between the two institutions make cooperation rather difficult. Research institutions come up with inventions that the industry does not need, or research institutions are not able to align their research agenda with the needs of industry. Neither is able to meet the needs of the other. The ‘triple helix’ approach proposes a model in which government is the main driver bringing research institutions and industry together. This model has been used with a lot of success in Victoria, Australia. This paper seeks to interrogate how the ‘triple helix’ model can be adapted to answer the question of improved commercialization of IP in Africa.Item Media law and practice in Kenya: the confluence of regulation and liberty of thought.(Daystar University, School of Law, 2022) Oloo, MartinThe regulatory environment for the practice of mass media reveals the ever-existing tension between freedom of the press, democracy, and the rule of law. The promulgation of the progressive Constitution of Kenya 2010 embeds constitutional safeguards for the freedom of the press and freedom of speech. This study assessed the state of the mass Media law and practice in Kenya post the Constitutional of Kenya 2010, against three key research questions: 1) To what extent does Kenya entrench international and constitutional safeguards for freedom of the press in Kenya? 2) What is the effect of the rise of the social media on the regulatory environment in Kenya? 3) To what extent is the media in Kenya, regulated in view of the challenge of the private and the public interest? The research was mainly based on the literature review and focus group discussions with a select set of practising advocates and journalists. The findings of the research point to the fact that Kenya’s constitution entrenches the freedoms of the press and liberty of thought, while offering exceptions. With the exceptions, a follow-on debate arises around the question: does the regulatory environment for the mass media stifle or misrepresent the citizens’ voices?Item Need For Protocols For Sharing Of And Access To Research Facilities In Kenya(Daystar University, School of Law, 2022) Wekesa, MoniResearch institutions in the country acquire their facilities and equipment at different times. Due to limited budgetary allocation of less than 1% to research and development, an institution may have to wait for five or more years to get funds to renew their facilities. This is a global reality. This reality calls in the need for sharing of and access to available facilities. Kenya has two major international laboratories namely; the International Livestock Research Institute (ILRI) and the International Center for Insect Physiology and Ecology (ICIPE) that have state of the art research centres such as KEMRI, KEFRI, Kenya Marine Fisheries Research Institute and Kenya Agricultural and Livestock Research Organisation (KALRO) also have well equipped laboratories and experimental sites. Universities also have research facilities, most of which are suitable for basic research. These research institutions do not ‘talk’ to each other. There is no national inventory of the research facilities held by each institution. Collaboration and cooperation in research is done on an ad hoc basis, i.e. without clear memoranda of understanding. Several challenges are likely to arise where there is no agreement on the use of facilities. First and foremost is that deserving researchers would be unfairly denied access to much needed facilities. Secondly, where inventions are made, the question of ownership of intellectual property (IP) can lead to prolonged litigation. Thirdly, where equipment like computers and motor vehicles are bought using research grants, ownership of the equipment at the end of the project can be a source of conflict. Fourthly, issues of wear and tear with respect to replacement of consumables and accidental breakages ought to be determined before access is granted. Fifthly, is the question of duplication of resources. Sixthly, some equipment could become obsolete before they are maximally used. This paper seeks to analyse the challenges around ‘sharing of and access to’ research facilities and make recommendations for watertight protocols as a solution to the challenges.Item Sustaining International Peace and security and development, through ADR: the Russia – Ukraine conflict, ADR the forgotten too(Daystar University, School of Law, 2022) Owuor, MauriceInternational peace and security is inextricably tied to international development. And that ADR is an important cog in that wheel. It is in view of the foregoing that research into the emerging nexus is paramount. The global conflicts which threaten development inter alia, the Russia - Ukraine conflict in particular comes to mind. The said conflict has awakened the world to the interdependence, interconnectedness and inter relationship of states inter se It is now evident that international peace and security is a sine quo non condition for development. And that disruption of international peace and security in one corner of the globe affects development in other distant parts. The foregoing conflict has also re - emphasized that sustainable global development and international peace and security requires, the resolution of global disputes using other alternative dispute resolution mechanisms inter alia; mediation, conciliation, arbitration. Negotiation et cetera.Item The effect of ESG Reporting on the reduction of Climate Change: A focus on the “E”(Daystar University, School of Law, 2022) Namiinda, LindaIn the recent past, financial institutions have sought to incorporate sustainability in their scope of work. Since they are one of the main players in development, financial institutions have taken it upon themselves to ensure the activities they are funding are not encouraging environmental degradation. The International Monetary Fund (IMF) and other global institutions are hell-bent on encouraging “green finance” worldwide. In Kenya, the Nairobi Securities Exchange (NSE) has come up with Environmental Social Governance (ESG) disclosure guidelines. All listed companies are encouraged to include ESG disclosures in their annual reports. Stakeholders are no longer interested in just the financial performance of companies but also the environmental social and governance impact that the company has in the society. Companies are expected to make these disclosures every financial year. Banks and other lending institutions are also encouraged to find out how creditors intend to use the money borrowed and whether the intended activities will have a positive or negative impact on the environment. The question that this research paper seeks to answer is whether the data received in the ESG disclosures would have a direct impact in the reduction of climate change. Being voluntary self -reported disclosures, reliance is made on the goodwill and honesty of the company. The author shall rely on publications and interviews to conduct the research. The research seeks to establish whether sustainable development would be achieved where only guidelines are provided.Item The Role of Data Governance in Development in Kenya(Daystar University, School of Law, 2022) Musikali, LoisRecently, 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.