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Review: Journal of Conflict Management and Sustainable Development, Volume 8 No. 2

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The latest issue of the Journal of Conflict Management and Sustainable Development, Volume 8 No. 2, sustains the tradition of excellence in research, publishing and scholarship that has seen the Journal continue to grow as a key academic resource in the fields of Conflict Management, Sustainable Development and related fields of knowledge. This is the second issue of the Journal in the year 2022 and a demonstration of the commitment of the Journal Editors led by phenomenal Environmental Law Scholar, leading Dispute Resolution and Conflict Management Practitioner and renown Sustainable Development Expert Dr. Kariuki Muigua, PhD towards spearheading scholarly discourse on the themes of Conflict Management and Sustainable Development.

The journal continues its focus on emerging and pertinent areas and challenges in the fields of Conflict Management and Sustainable Development and where necessary proposes necessary legal, institutional and policy reforms towards addressing these issues. The Journal is now one of the most cited and authoritative publications in the fields of Conflict Management and Sustainable Development. The first article by Dr. Kariuki Muigua on “Fulfilling the Right to Water as a Socio-economic Right for the People of Kenya,” underscores that water is a basic human right both under international and national laws. In fact, the right to water is considered as part of the socioeconomic rights. In this article, he critically discusses the challenges that have hindered the realization of this right in Kenya and offers some recommendations on how the same can be overcome as part of realization of the constitutionally guaranteed socioeconomic rights in Kenya.

In the article, “Unequal Pay for Education of Equal Value: A Subtle Discrimination Against Non-SADC International Undergraduate Students,” Johana Kambo Gathongo* fundamental legal analogies from the above a South Africa Constitutional Court judgement as well as employment law ‘equal pay for work of equal value’ to show that there is conspicuous disparities in the payment of fee across all universities in the South Africa. He uses data from randomly selected universities to highlight the practice and disparity in terms of the payment of the ‘international levy’. As the Constitutional Court held in LarbiOdam case, “Non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. As a result, they should be protected in terms of the equality clause.” The article proposes remedial and other less severe, non-discriminatory practices through which universities may adopt to generate funds.

Decarbonisation as a climate mitigation strategy is gaining much traction lately due to the heightening climate variabilities and risks. Noting that over 70 percent of forest loss in Sub-Saharan Africa (SSA) is linked to agricultural expansion, Caroline Jepchumba Kibii examines the two sectors jointly because an activity in one sector implicates the other. In the article, “Decarbonising Africa’s Agriculture and Forestry: Synergies and Trade-offs for Sub-Saharan Africa,” she argues that while the journey towards decarbonising Africa’s agriculture and forestry faces several challenges; it also presents opportunities to exploit natural resources and conserve and develop green projects that promote sustainable development. The paper analyses the greenhouse gas emission sources in the agriculture and forestry sectors while interrogating some of the challenges barring their decarbonisation and considers potential tradeoffs in SSA.

Prof. Adesina Temitayo Bello in the article “Neg- Med Model; A Special Tool for Resolving Boko Haram Insurgency in Nigeria” examines the incessant evolution of the dreaded Boko Haram sect, its activities, and the techniques used by the Nigerian government to totally annihilate this canker worm. He reveals that the approaches adopted by Government to tackle this issue have brought little or no success because crucial elements like conflict resolution have not been given optimum attention. The article recommends that the government of Nigeria should, in the quest to mitigate and finally resolve the Boko Haram insurgency, initiate a conflict resolution mechanism other than the use of the military which signifies the application of force against the sect. It recommends the use of Negotiation and Mediation in resolving the crisis.

In the article “Corruption and Sustainable Development: Tracing the Root Causes and Radical Proposals for Way Forward,” Henry K. Murigi attempts to illustrate how the state of nature that was advanced by Thomas Hobbes presents itself in modern day corruption. In particular, the paper explores whether the idea of the state of nature can be located in the modern-day corruption by first deliberating on the context of Thomas Hobbes then consider the modern-day corruption. Thereafter, the paper shows the overlaps between state of nature and corruption. The paper then focuses on a conceptualization of the most notorious words of Thomas Hobbes which have generated numerous literary debates and thinking.

Dr. Kariuki Muigua in “Utilising Science and Technology for Environmental Management in Kenya,” advocates for the use of science and technology for environmental management in Kenya. He critically discusses environmental management tools in Kenya which include the law, ethics, Environmental Impact Assessment, market forces and institutions such as national courts and tribunals and the public while pointing out their shortcomings. The paper argues that environmental management tools in Kenya have not been fully effective in environmental protection and conservation as evidenced by several environmental concerns such as pollution and degradation. He presents a case for the enhancement of science and technology as an environmental management tool in Kenya in order to effectively achieve the right to a clean and healthy environment and promote sustainable development.

Oseko Louis D. Obure in “Realising Sustainable Use of Biomass Energy in Kenya: Appraising the Regulatory and Institutional Framework” notes that increasingly the world has been shifting toward cleaner and sustainable energy to ensure sustainable development in the energy industry. He argues that this calls on every country to ensure affordable, secure, and clean energy for its citizens. However, with increase in fuel prices by the introduction of the value-added tax of 8% on petroleum products, he anticipates that the cost of living and price of alternative sources of energy will equally soar. He proposes in mitigation taking measures to ensure safe and sustainable use of biomass is important. In turn, he calls for efficient regulatory and institutional framework over biomass upon appraising Kenya’s regulatory and institutional framework over biomass and proffer recommendations for the better and sustainable use of biomass.

In “Uti Possidetis, Self-determination and Conflicts in the Horn of Africa: The Case of Eritrea’s Secession from and Border Conflict with Ethiopia,” Berita Mutinda Musau examines the relationship between the principle of ut possidetis and the right to self-determination within the African context. It looks at the interplay between the two in enhancing conflict and challenging peace and stability in Africa particularly in the Horn of Africa. The study uses Ethiopia and Eritrea as a case study to establish the interplay between self-determination and uti possidetis in informing Eritrea’s secession from Ethiopia and the subsequent bloody border conflict between the two countries. The study concludes that demarcation of borders in peacetime coupled with good, representative and inclusive governments would go a long way in addressing the challenges that uti possidetis and self-determination pose to peace and security not only in the Horn of Africa but also in the whole of Africa.

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Why is THE LAWYER AFRICA Listing Top Law Firms and Top Lawyers?

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The Litigation Hall of Fame | Kenya in 2023 (The Most Distinguished 50 Litigation Lawyers in Kenya).

We live in the age of information overload where too much information (TMI) is increasingly making it difficult to find actionable legal data about a good law firm or lawyer. At the same time, legal services are increasingly going digital and finding your next lawyer is a now a matter of a few clicks. Many existing, new and potential clients are interested to know more about the lawyer handling or likely to handle their next case or transaction as every HR Manager seeks to know how their In-house Lawyer or next hire compares to peers.

The biggest dilemma especially for commercial consumers of legal services  is where to begin the journey in finding the law firm or the lawyer to meet their immediate legal need created by their new venture,  business, transaction or dispute. In-house counsel are also called upon to justify opting for one lawyer or law firm or over the other.  Hence, the rise in the popularity of international law directories rankings as an attempt to fill the yawning gap by listing a few dozen lawyers and law firms in esoteric categories that often don’t align with the legal needs of the domestic legal market.

But ranking two dozen elite lawyers or big law firms in a big jurisdiction like Kenya there are over 20,000 lawyers is merely a drop in the ocean. The result is the same candidates are listed year after year and an In-house Legal Team looking to infuse new blood in their external counsel panel is left very little discretion. At best, International legal ranking only succeed to tilt the scales in favour of few big firms and their lawyers and to aid the choice of International Legal buyers who are constrained for time in picking their External Counsel in jurisdictions where they cannot find referrals.

The questions that beg are: What about the other top law firms and lawyers who are equally good if not better but don’t have the time to fill the technical paperwork that comes with International Legal Directories rankings? What about Domestic Legal Buyers who simply want to justify why they prefer a lawyer or law firm not listed in the International Directory? Can increasing the number of listed lawyers or law firms from less 0.1% of the profession (as captured by International Law Directories) to at least 1% of the profession or higher for those specializing in the practice area help in enhancing access to justice in Africa? Can ranking law firms by number of fee earners help in the quest for a more accurate bird’s eye view of a country’s legal landscape?

At THE LAWYER AFRICA, we have set out to list Top Law Firms and Top Lawyers in the various practice areas in a way that democratizes law rankings and listings and brings this essential value add within reach of most lawyers and every law firms doing top legal work. We don’t promise to list all the top lawyers or law firms, but we commit to make sure every lawyer or law firm we list is at the top of the game in the listed practice area. We aim to help both little known and already known law firms and lawyers doing top legal work in their area of specialization get discovered by discerning clients and possibly get more opportunities to do great work.

THE LAWYER AFRICA is looking to list up to Top 200 Law Firms in every African Jurisdiction based on their reputation and number of fee earners headcount with a goal of listing at least Africa’s Top 1,000 Law Firms which are leaders in their respective countries. We also seek to list up to Top 1,000 Lawyers in every country in Africa in at least five main practice areas, namely, Litigation, Commercial Law, Property law, In-house and Private Sector or more.

THE LAWYER AFRICA categorizes law firms in large jurisdictions as Top 5, Top 10, Top 20, Top 50 and Top 100 (and allow tying where number of counsel is equal). The Top Lawyers are listed in three categories, namely, Hall of Fame (the Distinguished Top 50 or 75 Practitioners in a Practice Area), Top 100 (the Leading Top 100 Practitioners in a Practice Area) and Up-and-Coming (the promising Top 50 or 75 Practitioners in a Practice Area).  The placing of a listings depends on a number of key factors including the number of key matters or transactions handled, years in practice and experience, size of team working under a counsel, reputation and opinion of peers (where available) as established by THE LAWYER AFRICA.

THE LAWYER AFRICA prefers to list a counsel in only one listing, as far as possible. The Team tries (as far as possible) not to contact listed law firms or lawyers before the listing is finalized in the first. However, a listed law firm or lawyer may be contacted at the pre-launch stage of a list for purposes of selling merchandise relating to the launch but such engagement will not affect the listing. In case of future listings, it is expected that interested lawyers or law firms who feel they were previously left out of the list may to provide information for consideration to determine if they qualify for the next listing but that will not guarantee any listing.

THE LAWYER AFRICA undertakes not to charge for listing any lawyer or law firm. However, upon publication of a listing, as part of recovering the sunk costs we incur in the research and publication of the listings, we shall charge a token for printing and shipping of Quality A3 Certificate for listed Law Firms and/or A4 Certificate for listed Lawyers who wish to have or display the branded souvenirs or to use our proprietary digital materials in their business  branding. We may also charge listed and unlisted law firms and lawyers an affordable fee for limited banner advertising or publishing of enhanced profiles next to the listings.

For any question or feedback on any list or listing, feel free to contact THE LAWYER AFRICA PUBLISHER at info[at]thelawyer[dot]africa.

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The Roles of the Three Parts of the Permanent Court of Arbitration

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H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

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Brief History of the Permanent Court of Arbitration (PCA)

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By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.

Reference

PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25th May 2023).

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