Allan M Mukuki | Strathmore University (original) (raw)
Papers by Allan M Mukuki
Nomos Verlagsgesellschaft mbH & Co. KG eBooks, 2022
World Academy of Science, Engineering and Technology, International Journal of Humanities and Social Sciences, 2017
The nexus between terrorism and human rights has become a big challenge in the fight against terr... more The nexus between terrorism and human rights has become a big challenge in the fight against terrorism globally. This is hinged on the fact that terrorism and human rights are interrelated to the extent that, when the former starts, the latter is violated. This direct linkage was recognised in the Vienna Declaration and Programme of Action as adopted by the World Conference on Human Rights in Vienna on 25 June 1993 which agreed that acts of terrorism in all its forms and manifestations are aimed at the destruction of human rights. Hence, terrorism constitutes an assault on our most basic human rights. To this end, the first part of this paper focuses on the nexus between terrorism and human rights and endeavors to draw a co-relation between these two concepts. The second part thereafter analyses the emerging concept of cyber-terrorism and how it takes place. Further, an analysis of cyber counter-terrorism balanced as against human rights is also undertaken. This is done through the analysis of the concept of 'securitisation' of human rights as well as the need to create a balance between counterterrorism efforts as against the protection of human rights at all costs. The paper then concludes with recommendations on how to balance counter-terrorism and human rights in the modern age. It must be noted though that as a way of limitation of the study, Kenya has not generated any substantial jurisprudence on issues specific to cyber-terrorism and human rights. This paper therefore does not analyse the law enforcement capacities and policies of those tasked with
Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada, Oct 15, 2016
John Austin has been widely criticized and supported in equal measure for his bold assertion that... more John Austin has been widely criticized and supported in equal measure for his bold assertion that international law is not 'real law' due to the lack of a 'sovereign'. This article explores Austin's position and analyzes it as against its veracity in relation to current legal systems; modern contemporary international law; and analysis of legal questions in the international arena. While indeed Austin's position was true about the legal systems of his time, the same cannot be transposed into the international legal system. If on the other hand the transposition is necessary, it will be shown that international law is indeed 'real law' with a somewhat real 'sovereign' just like any municipal law.
Groningen Journal of International Law, 2019
This article analyses the impacts of climate change which are no longer only within the scientifi... more This article analyses the impacts of climate change which are no longer only within the scientific realm. This analysis reveals the effects of climate change and the challenges that it poses to the current refugee definition and the existing regime of refugee protection in international law. An all-inclusive refugee definition under international law, to include climate change as a Convention ground for people to seek refugee status is argued for herein. Judicial expansion of the definition and the development of soft law principles to cater for climate migrants is also discussed. Nevertheless, it is also noted that there exist numerous challenges in the re-imagination of the concept of forced migration in the face of climate change. Political considerations as well as a lack of State will and consensus on the existence of climate migrants have been the most visible challenges yet.
Strathmore Law Journal, 2020
States are collapsing and genocidal acts are being committed or may happen any moment. In these i... more States are collapsing and genocidal acts are being committed or may happen any moment. In these instances, states look to the United Nations (UN) to act in order to prevent genocide from happening. This article seeks to determine if there exists an obligation under international law for the UN to prevent genocide, and in that event, can the UN be held responsible under international law for failure to comply with this obligation? This article further analyses these questions by looking at the aspect of Responsibility to Protect (R2P) which elicits an obligation to prevent genocide first to states and then to the UN. At the very minimum, every state must protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. In the case of states failing to undertake this obligation, the UN is bound to step in and undertake this obligation. Hence, this is a responsibility that is an obligation to states first and then to the UN. In summation, this article esta...
AUCIL Journal on International Law, 2018
According to the United Nations High Commissioner for Refugees (UNHCR), Sub-Saharan Africa hosts ... more According to the United Nations High Commissioner for Refugees (UNHCR), Sub-Saharan Africa hosts more than 26 per cent of the world's refugee population. Global focus has been on the European refugee crisis with little to no talk on the African refugee crisis. Seeing as most refugees in Africa are fleeing war-torn regions such as Northern Nigeria, Central African Republic and Somalia, national security is becoming a prioritized topic in any discussion on refugees' matters. Some African States have thus resorted to capping the number of refugees they can accept, while others have opted to return refugees either on their own motion or with the help of UNHCR. This paper therefore seeks to analyse the principle of non-refoulement in the current African refugee crisis, as weighed against national security concerns.
Strathmore Law Journal, 2020
States are collapsing and genocidal acts are being committed or may happen any moment. In these i... more States are collapsing and genocidal acts are being committed or may happen any moment. In these instances, states look to the United Nations (UN) to act in order to prevent genocide from happening. This article seeks to determine if there exists an obligation under international law for the UN to prevent genocide, and in that event, can the UN be held responsible under international law for failure to comply with this obligation? This article further analyses these questions by looking at the aspect of Responsibility to Protect (R2P) which elicits an obligation to prevent genocide first to states and then to the UN. At the very minimum, every state must protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. In the case of states failing to undertake this obligation, the UN is bound to step in and undertake this obligation. Hence, this is a responsibility that is an obligation to states first and then to the UN. In summation, this article establishes that the obligation to prevent genocide is a customary international law obligation. Further, the UN is bound by this obligation. However, it is shown that the procedures that are available to address its failure to uphold this obligation are inconsequential since the UN has absolute immunity and any decision, even if holding the UN responsible, cannot be enforced as against it.
Nevertheless, this article provides some recommendation(s) as to how the UN can play a role in ensuring accountability for failures within its ambit.
GroJIL, 2019
This article analyses the impacts of climate change which are no longer only within the scientifi... more This article analyses the impacts of climate change which are no longer only within the scientific realm. This analysis reveals the effects of climate change and the challenges that it poses to the current refugee definition and the existing regime of refugee protection in international law. An all-inclusive refugee definition under international law, to include climate change as a Convention ground for people to seek refugee status is argued for herein. Judicial expansion of the definition and the development of soft law principles to cater for climate migrants is also discussed. Nevertheless, it is also noted that there exist numerous challenges in the re-imagination of the concept of forced migration in the face of climate change. Political considerations as well as a lack of State will and consensus on the existence of climate migrants have been the most visible challenges yet.
The nexus between terrorism and human rights has become a big challenge in the fight against terr... more The nexus between terrorism and human rights has become a big challenge in the fight against terrorism globally. This is hinged on the fact that terrorism and human rights are interrelated to the extent that, when the former starts, the latter is violated. This direct linkage was recognised in the Vienna Declaration and Programme of Action as adopted by the World Conference on Human Rights in Vienna on 25 June 1993 which agreed that acts of terrorism in all its forms and manifestations are aimed at the destruction of human rights. Hence, terrorism constitutes an assault on our most basic human rights.
To this end, the first part of this paper focuses on the nexus between terrorism and human rights and endeavors to draw a co-relation between these two concepts. The second part thereafter analyses the emerging concept of cyber-terrorism and how it takes place. Further, an analysis of cyber counter-terrorism balanced as against human rights is also undertaken. This is done through the analysis of the concept of 'securitisation' of human rights as well as the need to create a balance between counterterrorism efforts as against the protection of human rights at all costs. The paper then concludes with recommendations on how to balance counter-terrorism and human rights in the modern age.
It must be noted though that as a way of limitation of the study, Kenya has not generated any substantial jurisprudence on issues specific to cyber-terrorism and human rights. This paper therefore does not analyse the law enforcement capacities and policies of those tasked with
John Austin has been widely criticized and supported in equal measure for his bold assertion that... more John Austin has been widely criticized and supported in equal measure for his bold assertion that international law is not 'real law' due to the lack of a 'sovereign'. This article explores Austin's position and analyzes it as against its veracity in relation to current legal systems; modern contemporary international law; and analysis of legal questions in the international arena. While indeed Austin's position was true about the legal systems of his time, the same cannot be transposed into the international legal system. If on the other hand the transposition is necessary, it will be shown that international law is indeed 'real law' with a somewhat real 'sovereign' just like any municipal law.
Alternative Dispute Resolution mechanisms (hereinafter referred to as 'ADR') all over the world a... more Alternative Dispute Resolution mechanisms (hereinafter referred to as 'ADR') all over the world aim at a Restorative Justice Approach. (A Handbook for Community Justice Committees in the NWT, 2001) 2 This is to say that the main concern is to find ways to get the person to change their behavior and restore their relationship with the group rather than punish them.
The Constitution of Kenya, 2010 represents what is referred to as a 'new people-based ideology.'(Ojwang' J.B, 2013)3 It is instructive of the fact that all sovereign power belongs to the people of Kenya (Constitution of Kenya, 2010) 4 and in exercising this power on behalf of the people the state is obligated to ensure access to justice to all persons through the various ADR mechanisms. (Constitution, 2010) 5
It is on the above premise that this paper seeks to analyze the various ADR Mechanisms and their link to the concept of Access to Justice in Kenya.
Books by Allan M Mukuki
Nomos Verlagsgesellschaft mbH & Co. KG eBooks, 2022
World Academy of Science, Engineering and Technology, International Journal of Humanities and Social Sciences, 2017
The nexus between terrorism and human rights has become a big challenge in the fight against terr... more The nexus between terrorism and human rights has become a big challenge in the fight against terrorism globally. This is hinged on the fact that terrorism and human rights are interrelated to the extent that, when the former starts, the latter is violated. This direct linkage was recognised in the Vienna Declaration and Programme of Action as adopted by the World Conference on Human Rights in Vienna on 25 June 1993 which agreed that acts of terrorism in all its forms and manifestations are aimed at the destruction of human rights. Hence, terrorism constitutes an assault on our most basic human rights. To this end, the first part of this paper focuses on the nexus between terrorism and human rights and endeavors to draw a co-relation between these two concepts. The second part thereafter analyses the emerging concept of cyber-terrorism and how it takes place. Further, an analysis of cyber counter-terrorism balanced as against human rights is also undertaken. This is done through the analysis of the concept of 'securitisation' of human rights as well as the need to create a balance between counterterrorism efforts as against the protection of human rights at all costs. The paper then concludes with recommendations on how to balance counter-terrorism and human rights in the modern age. It must be noted though that as a way of limitation of the study, Kenya has not generated any substantial jurisprudence on issues specific to cyber-terrorism and human rights. This paper therefore does not analyse the law enforcement capacities and policies of those tasked with
Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada, Oct 15, 2016
John Austin has been widely criticized and supported in equal measure for his bold assertion that... more John Austin has been widely criticized and supported in equal measure for his bold assertion that international law is not 'real law' due to the lack of a 'sovereign'. This article explores Austin's position and analyzes it as against its veracity in relation to current legal systems; modern contemporary international law; and analysis of legal questions in the international arena. While indeed Austin's position was true about the legal systems of his time, the same cannot be transposed into the international legal system. If on the other hand the transposition is necessary, it will be shown that international law is indeed 'real law' with a somewhat real 'sovereign' just like any municipal law.
Groningen Journal of International Law, 2019
This article analyses the impacts of climate change which are no longer only within the scientifi... more This article analyses the impacts of climate change which are no longer only within the scientific realm. This analysis reveals the effects of climate change and the challenges that it poses to the current refugee definition and the existing regime of refugee protection in international law. An all-inclusive refugee definition under international law, to include climate change as a Convention ground for people to seek refugee status is argued for herein. Judicial expansion of the definition and the development of soft law principles to cater for climate migrants is also discussed. Nevertheless, it is also noted that there exist numerous challenges in the re-imagination of the concept of forced migration in the face of climate change. Political considerations as well as a lack of State will and consensus on the existence of climate migrants have been the most visible challenges yet.
Strathmore Law Journal, 2020
States are collapsing and genocidal acts are being committed or may happen any moment. In these i... more States are collapsing and genocidal acts are being committed or may happen any moment. In these instances, states look to the United Nations (UN) to act in order to prevent genocide from happening. This article seeks to determine if there exists an obligation under international law for the UN to prevent genocide, and in that event, can the UN be held responsible under international law for failure to comply with this obligation? This article further analyses these questions by looking at the aspect of Responsibility to Protect (R2P) which elicits an obligation to prevent genocide first to states and then to the UN. At the very minimum, every state must protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. In the case of states failing to undertake this obligation, the UN is bound to step in and undertake this obligation. Hence, this is a responsibility that is an obligation to states first and then to the UN. In summation, this article esta...
AUCIL Journal on International Law, 2018
According to the United Nations High Commissioner for Refugees (UNHCR), Sub-Saharan Africa hosts ... more According to the United Nations High Commissioner for Refugees (UNHCR), Sub-Saharan Africa hosts more than 26 per cent of the world's refugee population. Global focus has been on the European refugee crisis with little to no talk on the African refugee crisis. Seeing as most refugees in Africa are fleeing war-torn regions such as Northern Nigeria, Central African Republic and Somalia, national security is becoming a prioritized topic in any discussion on refugees' matters. Some African States have thus resorted to capping the number of refugees they can accept, while others have opted to return refugees either on their own motion or with the help of UNHCR. This paper therefore seeks to analyse the principle of non-refoulement in the current African refugee crisis, as weighed against national security concerns.
Strathmore Law Journal, 2020
States are collapsing and genocidal acts are being committed or may happen any moment. In these i... more States are collapsing and genocidal acts are being committed or may happen any moment. In these instances, states look to the United Nations (UN) to act in order to prevent genocide from happening. This article seeks to determine if there exists an obligation under international law for the UN to prevent genocide, and in that event, can the UN be held responsible under international law for failure to comply with this obligation? This article further analyses these questions by looking at the aspect of Responsibility to Protect (R2P) which elicits an obligation to prevent genocide first to states and then to the UN. At the very minimum, every state must protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. In the case of states failing to undertake this obligation, the UN is bound to step in and undertake this obligation. Hence, this is a responsibility that is an obligation to states first and then to the UN. In summation, this article establishes that the obligation to prevent genocide is a customary international law obligation. Further, the UN is bound by this obligation. However, it is shown that the procedures that are available to address its failure to uphold this obligation are inconsequential since the UN has absolute immunity and any decision, even if holding the UN responsible, cannot be enforced as against it.
Nevertheless, this article provides some recommendation(s) as to how the UN can play a role in ensuring accountability for failures within its ambit.
GroJIL, 2019
This article analyses the impacts of climate change which are no longer only within the scientifi... more This article analyses the impacts of climate change which are no longer only within the scientific realm. This analysis reveals the effects of climate change and the challenges that it poses to the current refugee definition and the existing regime of refugee protection in international law. An all-inclusive refugee definition under international law, to include climate change as a Convention ground for people to seek refugee status is argued for herein. Judicial expansion of the definition and the development of soft law principles to cater for climate migrants is also discussed. Nevertheless, it is also noted that there exist numerous challenges in the re-imagination of the concept of forced migration in the face of climate change. Political considerations as well as a lack of State will and consensus on the existence of climate migrants have been the most visible challenges yet.
The nexus between terrorism and human rights has become a big challenge in the fight against terr... more The nexus between terrorism and human rights has become a big challenge in the fight against terrorism globally. This is hinged on the fact that terrorism and human rights are interrelated to the extent that, when the former starts, the latter is violated. This direct linkage was recognised in the Vienna Declaration and Programme of Action as adopted by the World Conference on Human Rights in Vienna on 25 June 1993 which agreed that acts of terrorism in all its forms and manifestations are aimed at the destruction of human rights. Hence, terrorism constitutes an assault on our most basic human rights.
To this end, the first part of this paper focuses on the nexus between terrorism and human rights and endeavors to draw a co-relation between these two concepts. The second part thereafter analyses the emerging concept of cyber-terrorism and how it takes place. Further, an analysis of cyber counter-terrorism balanced as against human rights is also undertaken. This is done through the analysis of the concept of 'securitisation' of human rights as well as the need to create a balance between counterterrorism efforts as against the protection of human rights at all costs. The paper then concludes with recommendations on how to balance counter-terrorism and human rights in the modern age.
It must be noted though that as a way of limitation of the study, Kenya has not generated any substantial jurisprudence on issues specific to cyber-terrorism and human rights. This paper therefore does not analyse the law enforcement capacities and policies of those tasked with
John Austin has been widely criticized and supported in equal measure for his bold assertion that... more John Austin has been widely criticized and supported in equal measure for his bold assertion that international law is not 'real law' due to the lack of a 'sovereign'. This article explores Austin's position and analyzes it as against its veracity in relation to current legal systems; modern contemporary international law; and analysis of legal questions in the international arena. While indeed Austin's position was true about the legal systems of his time, the same cannot be transposed into the international legal system. If on the other hand the transposition is necessary, it will be shown that international law is indeed 'real law' with a somewhat real 'sovereign' just like any municipal law.
Alternative Dispute Resolution mechanisms (hereinafter referred to as 'ADR') all over the world a... more Alternative Dispute Resolution mechanisms (hereinafter referred to as 'ADR') all over the world aim at a Restorative Justice Approach. (A Handbook for Community Justice Committees in the NWT, 2001) 2 This is to say that the main concern is to find ways to get the person to change their behavior and restore their relationship with the group rather than punish them.
The Constitution of Kenya, 2010 represents what is referred to as a 'new people-based ideology.'(Ojwang' J.B, 2013)3 It is instructive of the fact that all sovereign power belongs to the people of Kenya (Constitution of Kenya, 2010) 4 and in exercising this power on behalf of the people the state is obligated to ensure access to justice to all persons through the various ADR mechanisms. (Constitution, 2010) 5
It is on the above premise that this paper seeks to analyze the various ADR Mechanisms and their link to the concept of Access to Justice in Kenya.