Thesis submitted in fulfillment of the requirements for the degree of Doctor of Philosophy, presented to the School of Law, Faculty of Commerce, Law and Management, University of the Witwatersrand. / Over the last few decades, the debate on the topic of business and human rights has dominated the international scene. Initially, the debate focused on the question whether corporations have obligations beyond making profits. This is no longer contested, and the issue now at hand is the need to define what these obligations are and to determine how they can be enforced. In the history of the development of human rights, the duty to uphold human rights and secure their protection was considered a preserve of the state. However, with changing economic dynamics and increased globalization, it is undeniable that states are no longer the only or major threat to human rights; the modern corporation, much bigger in structure and complex in operations than before, has taken its place beside the state, having as much potential as the state to negatively impact human rights. Kenya adopted a new Constitution in 2010, at the same time that John Ruggie, the Special Representative of the UN Secretary General on Business and Human Rights was finalizing his mandate and putting together his findings based on research he had conducted over a number of years. The business and human rights deliberations Ruggie steered at the international level were expected to culminate in the negotiation of an internationally binding instrument. This did not happen. This study shows that the failure to propose the negotiation of a treaty was not fatal to the Business and Human Rights agenda, but rather that the alternative approach taken presents a more ideal opportunity to prepare the ground for the future negotiation of a treaty. Ruggie developed the UN Guiding Principles on Business and Human Rights and proposed them as a common global platform for action, an authoritative focal point to direct efforts geared at understanding the corporate obligation for human rights. Although both the Constitution of Kenya and Ruggie’s findings underscore the role of the corporation in upholding human rights, the corporate obligation with regards to human rights is not clear. The main objective of the research was therefore to give human rights obligations of corporations in Kenya greater specificity so that both corporations and the State may more effectively implement them. The study undertook to investigate what the corporate obligation for human rights entails, building on the foundation established by the 2010 Constitution, which provides for horizontal application of the Bill of Rights to juristic persons, and the guidance offered for states and corporations and other business entities through the UN Protect, Respect and Remedy Framework and the UN Guiding Principles. The study established what the obligations under the three pillars recommended in the UN Framework would mean for Kenya. The mistaken belief commonly held by corporations that corporate social responsibility is the same as human rights obligation was explored. The findings also show that the State Duty to Protect will mainly be exercised through the enactment of laws that offer guidance to corporations on what constitutes their duty and how it can be executed in practice. The study therefore recommends that amendments and additions be made to particular laws, the main one being the Companies Act of Kenya, to guide corporations in executing their human rights obligation. Furthermore, a recommendation is made that the Commission charged with implementing the Constitution include a specific section on Business and Human Rights in the National Policy and Action Plan drawn up to implement the 2010 Constitution. This will ensure that due attention is given to the subject, and a clear and comprehensive approach adopted to make corporate accountability for human rights violations a practical and realistic goal. The proposals made for the Action Plan include factors that will improve access to remedy for victims of human rights violations. / MT2017

Thesis (DTech (Design))--Cape Peninsula University of Technology, 2017. / The introduction of water service programmes has significantly improved the delivery of Water and Sanitation Services to marginalised communities in Kenya. Since the implementation of the Kenya Water Act of 2002, enacted policies have resulted in communal ablution blocks and water kiosks in some of the more densely populated settlements. In the development of service provision programmes to improve access to water and sanitation, the social and cultural implications have yet to be addressed. To better understand the partnerships between the marginalised community and the political agencies that ensure improved allocation of resources, community participation should be addressed in the emerging water governance. The right to water is a key clause in the new constitution of Kenya and although this is a laudable recognition of citizens’ rights to basic services, this constitutional clause is yet to be fully implemented. The exclusion of social practices followed by marginalised communities results in limits in the promotion and implemention water and sanitation projects. The resulting lack of water and sanitation services decreases the internal capacities of community members and inhibits development. A natural and finite resource such as water, often taken for granted by most, is the foundation to improved places in a community. These places reflect social relations within the given society and provide a platform for interaction. When this engagement occurs, meaning in both physical and social boundaries between different communities that emerge, can help assert agency to marginalised groups. While a programme is used to define a space by regulating through building codes and standards, a community’s role is validated by the inclusiveness of the design process. Therefore the resultant project allows for a sense of agency to be built, while boosting interaction through learning programmes, to improve civic duties in the society. These aspects are crucial for development and can be achieved using allocation of basic services like water and sanitation. Grounded Theory is used to analyse the interviews from the respondents and it concerns itself with the meanings attributed to steps within processes. This approach is applicable when meanings attributed to macro-level explanations and micro-level activities need to be uncovered. The interviews conducted for this study are analysed line-by-line coding and memo writing. The data is used as a narrative of distinct processes in both marginalised communities and political agencies. Using the model of an agent the study illustrates the process of agency that highlights the role of marginalised communities in participatory approches toward equitable access to water and sanitaion services. The cases approached in this study further articulate the processes used by political agencies to engage in community participatory approaches. Though these participatory approaches were seen to be more inclusive than previous service delivery approaches, gaps emerged in the study that are addressed in the relationship matrix. This model distinguishes the differences in the production of space through Water and Sanitation Service programs, and the creation of place in implemented projects. By aligning these two aspects of the production of space when applied to marginalised settings helps in understanding the context prior to the implementation of WSS development programmes. This recognition of the role that marginalised communities play in socioeconomic development can improve programmes and projects aimed at providing water and sanitation services. This access is important to marginalised groups which are disadvantaged, because of a difference in their practices. By understanding the social practices around the use, management and safeguarding of water and sanitation projects, community members can begin to attach cultural value to their water resources. This has implications for the sustainability of the projects and their replicability. Therefore social practices, and by extension culture, influence the concept and design of programmes to enable access to water and sanitation resources, especially to marginalised groups in society.

FGM is practiced in around 30 countries, mainly in Africa, The Middle East, and Asia. An estimated 200 million girls and women have been cut anywhere between infancy and 15 years old. This practice is usually linked to traditions, cultures, and sometimes religion, although this seems to be more of a question of how religion is interpreted. There are 4 recognized types of FGM including various ways of cutting and removing parts of or all of the intimate sexual exterior organs of the female, and sometimes also sewing together the remaining parts. The purpose of this study was to describe non-governmental organizations preventive work against FGM in Kenya. The study has a qualitative design. All data, including interviews, was collected between January 26th and March 5th, 2023, by accompanying several NGOs in different parts of the country visiting different communities and carrying out individual semi-structured interviews with 6 different Kenyan NGOs that fight FGM locally. From these six interviews, three main categories and seven subcategories were identified. The main categories were Education, with subcategories Finishing School and Training Local Role Models in the communities, Local Activists, with subcategories Local solution and change from within and finally Empowerment with subcategories Equality and Equity, Women’s, Girls’ and Children’s Rights as well as tackling the difficulty with medicalization. The results show the necessity of training local role models to be able to stop FGM because change should come from within. Girls also need to finish school to learn about human, women’s, and children's rights and how to protect yourself against pregnancy. The preventive work also includes focusing on the medicalization of FGM. Today, FGM is performed in healthcare facilities by healthcare workers. The prevention work involves educating communities about the health risks of FGM, regardless of where it is performed. / Kvinnlig könsstympning utövas i 30 länder, främst i Afrika, mellanöstern och Asien. Uppskattningsvis har 200 miljoner kvinnor och flickor blivit stympade innan de fyllt 15 år. Utövandet av kvinnlig könsstympning är ofta förknippat med traditioner, kulturer och ibland även utövandet av olika religioner. Det finns fyra typer av kvinnlig könsstympning som inbegriper olika tillvägagångssätt för att avlägsna de yttre könsorganen, och ibland även sy ihop vävnaderna. Syftet med studien var att beskriva icke statliga organisationers förebyggande arbete mot kvinnlig könsstympning i Kenya. Studien är av kvalitativ design. Datainsamling gjordes mellan 26 januari 2023 till 5 Mars 2023 genom individuella, semi-strukturerade intervjuer med sex olika organisationer. Av dessa sex intervjuer identifierades tre huvudkategorier och sju underkategorier. Huvudkategorierna var utbildning med underkategorier gå klart skolan och utbildning av inflytelserika personer i samhället, Lokala Aktivister med underkategorier Lokala Lösningar och Förändring inifrån samt Egenmakt med underkategorier Jämställdhet och Jämlikhet, Kvinnors, Flickors och Barns rättigheter och hantera svårigheter av medikalisering. Resultatet visar på nödvändigheten av utbildning av lokala förebilder att för att kunna stoppa kvinnlig könsstympning eftersom förändring bör komma inifrån. Flickor behöver också få gå färdigt skolan för att lära sig bland annat om mänskliga, kvinnliga och barns rättigheter och hur man skyddar sig mot graviditet. I det förebyggande arbetet ingår också fokusering på medikalisering av kvinnlig könsstympning. Idag utförs kvinnlig könsstympning på sjukvårdsinrättningar av bland annat sjukvårdspersonal. Det förebyggande arbetet går ut på att utbilda samhällen om hälsoriskerna av kvinnlig könsstympning, oavsett var det utförs.

Within the research field of colonial violence, scholars focused on wars of conquest or independence and tended to picture counterinsurgency campaigns as an exceptional deployment of state violence in the face of peculiar threats. In colonial Kenya, the British repression of the Mau Mau uprising of the 1950s has been the object of extensive and thorough analysis, contrasting with the lack of research on colonial punishment during the preceding decades. Yet the unleashing of state violence during the 1950s actually has a much longer history, lurking in the shadows of the criminal justice system that British powers introduced in the colony in the late nineteenth century. In contrast to previous scholarship, this study shows how ordinary colonial violence - although massively scaled up during the 1950s - was progressively normalised, institutionalised and intensified throughout the colonial experience of the 1930s and 1940s, laying the ground for the deployment of a counterinsurgency campaign against Mau Mau fighters.

Environmental justice, a new but rapidly developing concept in international environmental law, arose in the United States of America during the Environmental Justice Movement of the late 1970s and 1980s. It starkly highlighted injustices faced by people of colour and low-income communities as regards racially skewed environmental legal protection and allocation of environmental risks. The movement radically changed the meaning of ‘environment’ from its conventional green overtones to include issues of social justice at the core of environmental thinking. I critically examine the concept of environmental justice in the Kenyan context by highlighting the injustices, and the formulation and application of laws and policies that significantly impact on environmental regulation and equitable distribution of social services. / Private Law / LL. M.

The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.