Gilbert Ogolla - Academia.edu (original) (raw)
Papers by Gilbert Ogolla
Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School, 2024
The murder of witnesses who were linked to the ICC prosecutions of suspected perpetrators of Keny... more The murder of witnesses who were linked to the ICC prosecutions of suspected perpetrators of Kenya’s 2007 post-election violence was prevalent in the following years, with over ten cases of disappearance without a trace and murders, that could not all be coincidental. Seemingly, their deaths were an easy way out – a seeming loophole by which prosecutions could be interfered with or prompting premature termination by lack of evidence. This presented a unique situation- a potential conflict of jurisdictions, as to which one of either International Criminal Law or Domestic Criminal Law, if possible, could investigate and try suspects of such a murder linked to an ICC witness if at all it was possible.
Article 70 of the Rome Statute provides for offences against the administration of justice. Still, it is difficult at a surface glance, to determine whether it was envisioned for such a framework to prosecute murder as such an offence. That notwithstanding, it is undeniable that the murder of such a witness, conclusively interferes with any testimony that the witness was to give or could have given, that could have aided the ICC in making accurate and efficient determinations in its adjudication over core crimes, hence could be argued by its nature of interference, to be an offence against the administration of justice.
The purpose of this dissertation is to look into the history, existing structures and frameworks of the ICC, comparatively with that of the domestic criminal law within their respective jurisprudence, and with a focus on purposivism with regard to interpretation of Article 70(1)C of The Rome Statute, to determine whether there lay a remedy to this reality, within either system. It finds that the ICC is better equipped and has a better framework that could serve holistic justice if utilised, as compared to domestic criminal law. However, it still appreciates that even for the penalisation under Article 70 of the Rome Statute, the nature of the offence is still not matching to the sentencing, which is a challenge and area of potential further research.
THE OVERFOCUS ON JUDICIAL ADJUDICATION IN TRANSFORMATIVE CONSTITUTIONALISM: THE KENYAN AND SOUTH AFRICAN CASE, 2023
The Constitution of the Republic of South Africa 1996 (CoSA) was instituted to alleviate division... more The Constitution of the Republic of South Africa 1996 (CoSA) was instituted to alleviate divisions of the past and to develop a society based on democratic values, social justice, and fundamental human rights. It makes manifest the desire to ameliorate the quality of life of all citizens and the need to free the potential of each person living in the country . Like the constitution of Kenya 2010, the Bill of Rights set in CoSA represents the cornerstone of African constitutional project, enshrining the rights of all people and affirms democratic values of human dignity, equality, and freedom, upon which the country has been founded post-transition .The constitution provides for a range of socioeconomic rights (SERs) in the Bill of Rights. They are justiciable in South Africa, despite having been challenged, at the time of their perceived inconsistency with the notion of separation of powers .It was argued that inclusion of SERs as justiciable rights would result in courts dictating the government on budgetary allocations.
The constitutional court rejected such assertions in the Certification Judgement :
It is true that the inclusion of socio-economic rights may result in courts making orders which have direct implications for budgetary matters. However, even when a court enforces civil and political rights such as equality, freedom of speech and the right to a fair trial, the order it makes will often have such implications. A court may require the provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. In our view it cannot be said that by including socioeconomic rights within a bill of rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights, that results in a breach of the separation of powers ... we are of the opinion that these rights are, at least to some extent justiciable.
The new South African constitution, adopted in 1996, was greeted as the most admirable constitution in the history of the world , reason being it incorporated judicially enforceable socio-economic rights. Marius Pieterse argued that the inclusion of socio-economic rights in CoSA among other provisions of the constitution including the preamble indicated that the South African Bill of Rights is strongly focused on social transformation. It would seem clear that the constitution does not only envisage the political transformation of South African society, but also its social and economic transformation .
Popularized by South Africa’s transition from apartheid to constitutional democracy, transformative constitutionalism offers a remedy for failed constitutionalism and weak protection of fundamental rights and freedoms in emergent democracies in Africa . In this article I seek to appraise the idea of transformative constitutionalism and its ramifications on the adjudication of fundamental rights and freedoms coupled by the need for justification in the process of adjudication. I also go into some aspects of socioeconomic rights and some adjudications on some cases by the courts. Using examples of adjudication of rights in the post-2010 period in Kenya and post-apartheid South Africa.
Finally, I shall venture into some perils that may emanate from overreliance on adjudication by courts as a means of progressing transformative constitutionalism after which I shall conclude.
Submitted in partial fulfilment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School, 2024
The murder of witnesses who were linked to the ICC prosecutions of suspected perpetrators of Keny... more The murder of witnesses who were linked to the ICC prosecutions of suspected perpetrators of Kenya’s 2007 post-election violence was prevalent in the following years, with over ten cases of disappearance without a trace and murders, that could not all be coincidental. Seemingly, their deaths were an easy way out – a seeming loophole by which prosecutions could be interfered with or prompting premature termination by lack of evidence. This presented a unique situation- a potential conflict of jurisdictions, as to which one of either International Criminal Law or Domestic Criminal Law, if possible, could investigate and try suspects of such a murder linked to an ICC witness if at all it was possible.
Article 70 of the Rome Statute provides for offences against the administration of justice. Still, it is difficult at a surface glance, to determine whether it was envisioned for such a framework to prosecute murder as such an offence. That notwithstanding, it is undeniable that the murder of such a witness, conclusively interferes with any testimony that the witness was to give or could have given, that could have aided the ICC in making accurate and efficient determinations in its adjudication over core crimes, hence could be argued by its nature of interference, to be an offence against the administration of justice.
The purpose of this dissertation is to look into the history, existing structures and frameworks of the ICC, comparatively with that of the domestic criminal law within their respective jurisprudence, and with a focus on purposivism with regard to interpretation of Article 70(1)C of The Rome Statute, to determine whether there lay a remedy to this reality, within either system. It finds that the ICC is better equipped and has a better framework that could serve holistic justice if utilised, as compared to domestic criminal law. However, it still appreciates that even for the penalisation under Article 70 of the Rome Statute, the nature of the offence is still not matching to the sentencing, which is a challenge and area of potential further research.
THE OVERFOCUS ON JUDICIAL ADJUDICATION IN TRANSFORMATIVE CONSTITUTIONALISM: THE KENYAN AND SOUTH AFRICAN CASE, 2023
The Constitution of the Republic of South Africa 1996 (CoSA) was instituted to alleviate division... more The Constitution of the Republic of South Africa 1996 (CoSA) was instituted to alleviate divisions of the past and to develop a society based on democratic values, social justice, and fundamental human rights. It makes manifest the desire to ameliorate the quality of life of all citizens and the need to free the potential of each person living in the country . Like the constitution of Kenya 2010, the Bill of Rights set in CoSA represents the cornerstone of African constitutional project, enshrining the rights of all people and affirms democratic values of human dignity, equality, and freedom, upon which the country has been founded post-transition .The constitution provides for a range of socioeconomic rights (SERs) in the Bill of Rights. They are justiciable in South Africa, despite having been challenged, at the time of their perceived inconsistency with the notion of separation of powers .It was argued that inclusion of SERs as justiciable rights would result in courts dictating the government on budgetary allocations.
The constitutional court rejected such assertions in the Certification Judgement :
It is true that the inclusion of socio-economic rights may result in courts making orders which have direct implications for budgetary matters. However, even when a court enforces civil and political rights such as equality, freedom of speech and the right to a fair trial, the order it makes will often have such implications. A court may require the provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. In our view it cannot be said that by including socioeconomic rights within a bill of rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights, that results in a breach of the separation of powers ... we are of the opinion that these rights are, at least to some extent justiciable.
The new South African constitution, adopted in 1996, was greeted as the most admirable constitution in the history of the world , reason being it incorporated judicially enforceable socio-economic rights. Marius Pieterse argued that the inclusion of socio-economic rights in CoSA among other provisions of the constitution including the preamble indicated that the South African Bill of Rights is strongly focused on social transformation. It would seem clear that the constitution does not only envisage the political transformation of South African society, but also its social and economic transformation .
Popularized by South Africa’s transition from apartheid to constitutional democracy, transformative constitutionalism offers a remedy for failed constitutionalism and weak protection of fundamental rights and freedoms in emergent democracies in Africa . In this article I seek to appraise the idea of transformative constitutionalism and its ramifications on the adjudication of fundamental rights and freedoms coupled by the need for justification in the process of adjudication. I also go into some aspects of socioeconomic rights and some adjudications on some cases by the courts. Using examples of adjudication of rights in the post-2010 period in Kenya and post-apartheid South Africa.
Finally, I shall venture into some perils that may emanate from overreliance on adjudication by courts as a means of progressing transformative constitutionalism after which I shall conclude.