Name: Ibrahim Muhumed Aden

Unit Code: BED1203

Unit Title: Legal aspects

1.(a) Explain the history and principles of Human Rights within the United Nations
Framework (8marks)

History of Human rights

-The idea of human rights emerged stronger after World War II. The extermination by Nazi
Germany of over six million Jews, Sinti and Romani (gypsies), homosexuals, and persons with
disabilities horrified the world. Trials were held in Nuremberg and Tokyo after World War II,
and officials from the defeated countries were punished for committing war crimes, "crimes
against peace," and "crimes against humanity."

Governments then committed themselves to establishing the United Nations, with the primary
goal of bolstering international peace and preventing conflict. People wanted to ensure that never
again would anyone be unjustly denied life, freedom, food, shelter, and nationality. The essence
of these emerging human rights principles was captured in President Franklin Delano
Roosevelt’s 1941 State of the Union Address when he spoke of a world founded on four essential
freedoms: freedom of speech and religion and freedom from want and fear. The calls came from
across the globe for human rights standards to protect citizens from abuses by their governments,
standards against which nations could be held accountable for the treatment of those living
within their borders. These voices played a critical role in the San Francisco meeting that drafted
the United Nations Charter in 1945.

Principles of Human rights

a) Universality and Inalienability: Human rights are universal and inalienable. All people
everywhere in the world are entitled to them. The universality of human rights is encompassed in
the words of Article 1 of the Universal Declaration of Human Rights: “All human beings are
born free and equal in dignity and rights.”

b) Interdependence and Interrelatedness: Human rights are interdependent and interrelated.

Each one contributes to the realization of a person’s human dignity through the satisfaction of his
or her developmental, physical, psychological and spiritual needs. The fulfilment of one right
often depends, wholly or in part, upon the fulfilment of others. For instance, fulfilment of the
right to health may depend, in certain circumstances, on fulfilment of the right to development,
to education or to information.

c) Indivisibility: Human rights are indivisible. Whether they relate to civil, cultural, economic,
political or social issues, human rights are inherent to the dignity of every human person.
Consequently, all human rights have equal status, and cannot be positioned in a hierarchical
order. Denial of one right invariably impedes enjoyment of other rights. Thus, the right of
everyone to an adequate standard of living cannot be compromised at the expense of other rights,
such as the right to health or the right to education.

d) Equality and Non-discrimination: All individuals are equal as human beings and by virtue
of the inherent dignity of each human person. No one, therefore, should suffer discrimination on
the basis of race, colour, ethnicity, gender, age, language, sexual orientation, religion, political or
other opinion, national, social or geographical origin, disability, property, birth or other status as
established by human rights standards.

e) Participation and Inclusion: All people have the right to participate in and access
information relating to the decis ion-making processes that affect their lives and well-being.
Rights-based approaches require a high degree of participation by communities, civil society,
minorities, women, young people, indigenous peoples and other identified groups.

f) Accountability and Rule of Law: States and other duty-bearers are answerable for the
observance of human rights. In this regard, they have to comply with the legal norms and
standards enshrined in international human rights instruments. Where they fail to do so,
aggrieved rights-holders are entitled to institute proceedings for appropriate redress before a
competent court or other adjudicator in accordance with the rules and procedures provided by
law. Individuals, the media, civil society and the international community play important roles in
holding governments accountable for their obligation to uphold human rights.

(b) Discuss the fundamental rights and fundamental freedoms that are embedded in

Kenyan constitution (7marks)

Fundamental Rights embedded in Kenyan Constitution

a) The Right to Life

-Every person has the right to life. The constitution recognises this as beginning at conception. A
person shall not be deprived off life i.e. killed, murdered, or executed either by state or non-state
actors unless it is under the provision of the constitution. It must be noted that the death penalty
is still applicable in Kenya but has not been enforced for over 30 years. The constitution also
outlaws abortion unless it is advised by a legally recognised medical practitioner to save the life
of the mother or permitted under other circumstances like rape.

b) The Right to Equality and Freedom From Discrimination

-The Kenyan constitution states that every person is equal before the law and shall enjoy equal
protection by the law. All persons have the right to full enjoyment of essential rights and
fundamental freedoms including the right to equal political, economic, social and cultural
opportunities.

State and non-state actors are prohibited from discriminating on the basis of race, sex,
pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion,
conscience, belief, culture, dress, language or birth.

c)The Right To Freedom And Security Of The Person

-The constitution guarantees freedom and security of every person in Kenya. This includes the
right not to be detained without trial by state actors unless in the case of an emergency. Every
person is also protected from violence from both state and non-state actors. This includes
corporal punishment, cruel, humiliating and degrading treatment. The law also protects the
person against torture whether physical or psychological, from private and public sources.

d)The Prohibition Of Slavery, Servitude, And Forced Labour

-The law prohibits holding a person in slavery and servitude. Forced labour is also prohibited.

e) The Freedom of Conscience, Religion, Belief, And Opinion

- The constitution guarantees freedom of conscience, religion, belief thought and opinion. The
freedom to worship alone or as a group is also recognised including having a day of worship.
Discrimination on the basis of religion is also prohibited including barring people access to
facilities, institutions, or employment. The law also prohibits forcing a person to act, or engage
in any act that is contrary to his/her beliefs.

Fundamental Freedoms embedded in Kenyan Constitution

 Freedom of expression- Every person has the right to freedom of expression,

which includes--
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research

 Freedom of Media
 Freedom of association- Every person has the right to freedom of association,
which includes the right to form, join or participate in the activities of an
association of any kind. A person shall not be compelled to join an association of
any kind.
 Freedom of Movement and residence-Every person has the right to freedom of
movement. Every person has the right to leave Kenya. Every citizen has the right
to enter, remain in and reside anywhere in Kenya
  Freedom of conscience, religion, belief and opinion- Every person has the right,
either individually or in community with others, in public or in private, to
manifest any religion or belief through worship, practice, teaching or observance,
including observance of a day of worship.

2. (a) Discuss the legislative process in Kenya and the factors that undermine the
quality of legislation (8marks)

- Development of legislation is a significant aspect of governance in modern democratic

States. For starters, it is a process which involves many stakeholders. Article 1 of the
Constitution declares that all sovereign power (including legislative authority) belongs to
the people and is delegated to, among others, Parliament and County Assemblies.

- The basic function of a legislature is to make laws, amend them or repeal them. The law
making or legislative process may be defined as the process by which legislative proposal
brought before Parliament is translated into the law. Further, the legislative process is a
sequence of steps required for laws to move or transform through the system, from ideas to
formal legislation.

(i)Preparation of an annual legislative program (MDAs identify scope, purpose priority,

medium- and long-term legislation)

(ii) Issuing of drafting instructions;

(iii) Preparation of Bills and their circulation;

(iv) Involvement of the people (Stakeholder consultations);

(v) Approval by the Executive;

(vi) Introduction to Parliament or County Assembly;

(vii) Approval of Bills by relevant House Committee;

 (viii)Amendments before the House;

(ix) Debate and passage;

(x) Publication;

(xi) Preparation of regulations or subsidiary legislation;

(xii) Implementation;

(xiii)Review and reform

factors that undermine the quality of legislation 

 Corruption
 Inadequate resources
 Weak capacity in law making, implementation and poor enforcement.
 There is absence of sufficient and meaningful public participation in making key
decisions at both the national and county government level. Both levels of
government are not providing sufficient and meaningful opportunities for people
to effectively participate in decision making.
 Stand-off and struggle between the ruling party and the opposition party

(b) Discuss the provision of the law considered by the judicial officials when
handling a case involving child delinquency (7marks)

 juvenile delinquency is the engagement of illegal behavior by minors (youths) who have not
reached the statutory age of majority. In most states, that age is 18 years old. The legal term
juvenile delinquent was established in the United States in the late 1800s to describe young
lawbreakers.

The treatment of street children by police is symptomatic of a larger pattern of mistreatment of

Kenyan children within the justice system as a whole. Once arrested, Kenyan children enter the
revolving doors of the juvenile justice system and begin a path that takes them from police lock-
up to court, from court to remand detention centers where they may circulate back and forth
between court appearances and remand for months or even years before finally receiving
disposition of their cases. For this reason many children plead guilty to crimes they are accused
of, simply in order to avoid spending time in remand detention centers or remand prisons where
conditions are known to be particularly harsh. Without representation by legal counsel and often
without the presence of a parent or

legal guardian, children are subjected to brief hearings on their cases whereby they may be
deprived of their liberty and committed for years to juvenile correctional institutions known as
approved schools or borstal institutions. Under Kenyan law, children 14 years old and above may
also be committed to regular adult prisons, although this practice is admittedly rare. For some,
police will simply mete out their own form of summary justice in the form of a beating, and
release the children from jail without their ever going to court.

International Treaties

1.African Charter on the Rights and Welfare of the child, 1990

Administration of Juvenile Justice 1. Every child accused or found guilty of having infringed
penal law shall have the right to special treatment in a manner consistent with the child's sense of
dignity and worth and which reinforces the child's respect for human rights and fundamental
freedoms of others. The essential aim of treatment of every child during the trial and also if
found guilty of infringing the penal law shall be his or her reformation, re-integration into his or
her family and social rehabilitation. There shall be a minimum age below which children shall
be presumed not to have the capacity to infringe the penal law.

2. Convention on the Rights of the Child, 1989

States Parties recognize the right of every child alleged as, accused of, or recognized as having
infringed the penal law to be treated in a manner consistent with the promotion of the child's
sense of dignity and worth, which reinforces the child's respect for the human rights and
fundamental freedoms of others and which takes into account the child's age and the desirability
of promoting the child's reintegration and the child's assuming a constructive role in society.
 3.United Nations Standard Minimum Rules for Administration of Juvenile Justice: The
Beijing Rules (1985)

These rules serve as a model for UN member states in the treatment of juvenile offenders. They
take into account that the young require particular care and assistance with regard to physical,
mental and social development, and require legal protection in peace, freedom, dignity and
security. These are aimed at, either preventing intervention by the juvenile justice system or
reducing the harm caused by such intervention. The rules define a juvenile as a child who under
the respective legal systems may be dealt with for an offence in a manner different from an adult.
An offence is any behavior punishable by law under the respective legal systems and a juvenile
offender is a child or young person alleged to have committed or found to have committed.

4.United Nations Guidelines fo1· Prevention of Juvenile Delinquency: The Riyadh

Guidelines (1990)

This places the responsibility of preventing juvenile crimes on a! society and calls for fairness
and equity in dealing with issues of young persons with the goal of safeguarding their well-
being, development, rights and interests. It notes that labeling of young persons as 'delinquent' or
'deviant' often contributes to the development of a consistent pattern of undesirable behaviors of
young persons. States are conferred on the duty to preserve the integrity of the family and to
ensure the full development of the child through education.

5. United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

This is based on the recognition that children deprived of their liberty are highly vulnerable to
abuse, victimization violation of their rights. Rule 11 provides that a juvenile should not be
detained unless it is so determined by Jaw. Rule 17 provides for preference to altemative
measures to detention, and expeditious trial of those detained, also that untried juveniles should
be separated from convicted ones. R. 18 provides for the presumption of innocence, right to legal
counsel, opportunity to pursue work and continue with education and that juveniles should be
allowed to retain materials for their leisure and recreation.

Domestic Treaties- Kenya

1. Children Act, 2001

Article 73: There shall be courts to be known as Children’s Courts constituted in accordance
with the provisions of this section for the purpose of - (a) conducting civil proceedings on
matters set out under Parts III, V, VII, VIII, IX, X, XI and XIII; (b) hearing any charge against a
child, other than a charge of murder or a charge in which the child is charged together with a
person or persons of or above the age of eighteen years; (c) hearing a charge against any person
accused of an offence under this Act; (d) exercising any other jurisdiction conferred by this or
any other written law;

2. Harmonization of laws on the Rights of the Child, ACPF, 2011

Since 2006 there are now three more child-specific courts (Nakuru, Mombasa and Kakamega (in
addition to the Nairobi Children’s Court).) with physically separate court houses and
infrastructure designed for children – whether as victims of crimes, witnesses, in need of care
and protection and in conflict with the law. In the rest of the country ordinary courts are adapted
to serve as children’s courts presided over by judicial officers gazetted to serve as children’s
courts’ magistrates.

The primary law in Kenya concerning children in conflict with the law is the Children and
Young Persons Act (CYPA). The CYPA establishes juvenile courts for the purpose of hearing
all charges against persons under eighteen years of age, except in cases where children are
charged jointly with adults (these cases are heard in regular adult courts). The jurisdiction of
juvenile courts extends to both criminal matters and to non-criminal "protection or discipline"
matters.

3. The Child Rights Advisory Documentation and Legal Center (CRADLE)- was
founded in 1997 to respond to the need for provision of juvenile justice and to address the
issue of legal aid to children. It therefore addresses particular needs of child offenders
and is a member of the steering committee of the National Policy and Action Plan on
Human Rights.1