Enacted after a protracted review process characterised by many false starts, tensions and at times violence, the Constitution of Kenya 2010 envisions a radical break from a politically repressive past. It envisages extensive political transformation; a momentous shift in the political configuration of the polity in terms of its governance structures and the equilibrium of power among its institutions. It also entails a change in the normative arrangements, culture, attitudes and practices that surround politics and the exercise of public power. Crucially, as part of the transformation project, the Constitution has made a resolute commitment to fundamental rights and freedoms. Key among these is the right to freedom of expression. Freedom of expression enjoys protection in democratic constitutions around the world and in international law, albeit in different formulations. The right has repeatedly received affirmation in apex courts, including in Kenya, as the ?bedrock of democratic governance,? and similar praises. Except for jitters raised by the recent enactment of a plethora of expression-restricting laws and increased controversial prosecutions, there has been a general assumption that the protection of the right in Kenya is solid. This study aims, in part, at evaluating and deconstructing that assumption. In particular, the thesis answers the following research questions: (a) what is the nature and scope of the right to freedom of expression and its limitations in Kenya? (b) what are the transformative goals of Kenya?s 2010 Constitution? (c) what is the role of the right to freedom of expression in Kenya?s project of transformation?, and (d) do the limitations of freedom of expression under Kenyan law meet the standards of the 2010 Constitution? The thesis concludes that the transformation envisaged in the Constitution cannot be complete without fundamental changes in the law, practice and attitudes that surround freedom of expression. This is because, as the thesis shows, freedom of expression has the role of legitimating, facilitating, and defending the envisioned change. While the Constitution has created a framework with the potential to support transformation, freedom of expression restrictions contained in statutes, English common law and judicial precedents undercut the protection of the right. In other words, while some of these restrictions serve legitimate purposes, the constitutional validity of others is suspect. This situation, in turn, undermines the transformative aspirations of the 2010 Constitution. / Thesis (LLD)--University of Pretoria, 2016. / Centre for Human Rights / LLD / Unrestricted

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In this thesis I have attempted to give some indication of the divergence of the theory underlying the Soviet Constitution from the principles of classical Marxism. The scope of this subject is such that each facet with which I have dealt merits further extensive study and analysis, although I would humbly submit that such further consideration would serve only to verify, substantially. the main conclusions which I have reached. The subject of the thesis is dynamic. The period with which I have dealt is too recent and too momentous to permit complete objectivity to be achieved, and I can only express the hope that my dislike of the arbitrary use of power has been tempered by my enthusiasm for economic, social and political experiment based on profound humanitarian motives. The bibliography omits my most important acknowledge, and I therefore take this opportunity of thanking Mr. D. Novak for his invaluable advice and assistance. / Thesis / Master of Arts (MA)

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The thesis examines the speeches and debates in the Australasian Federation Conference of 1890, and the Australasian Federal Conventions of 1891 and 1897-8 for the purpose of establishing what the framers of the Commonwealth Constitution understood to be the meaning and purpose of the individual sections of the Constitution upon which they were called upon either to support or oppose. The particular matters involved in the examination are the manner and form in which the principles of responsible government were incorporated into the constitution, and the relationship of these principles to the powers of the Senate; the crisis in the 1891 Convention in relation to the powers of the Senate over money bills; the significance of the difference in composition of the Convention of 1891 compared with that of 1897-8; the significance of the classification of the Constitution as an indissoluble federation under the Crown; the principles of responsible government and the provisions of s.57 in the context of the deadlock over Supply in 1975; the meaning and purpose of s.41 preserving the rights of voters qualified to vote in State elections for the lower Houses, and the misconceptions in relation thereto the position of aborigines under the Constitution; the meaning and purpose of the special laws power in the light of the 1967 Constitutional referendum, and its interpretation bU the High Court in the Hindmarsh Island Bridge case; the relationship of the intentions of the framers of the Constitution to the interpretation bu the High Court of the Financial Clauses of the Constitution, and the provisions of s.92; and the meaning and purpose of the external affairs power, and the corporations power as understood bu the framers of the Constitution.

This thesis examines the extent to which the judiciary can intervene into the executive branch’s power over foreign affairs. This thesis focuses on the Supreme Court of Canada’s decision in Canada (Prime Minister) v. Omar Khadr, 2010 SCC 3 where Omar Khadr requested the judiciary to order the executive branch to request his release from American custody in Guantanamo Bay, Cuba. The Supreme Court refused Khadr’s request, but issued a declaratory order stating that Khadr’s rights had been violated by the Canadian government. This thesis places this decision, and its follow-on litigation, in its international and comparative context by examining the international law of diplomatic protection as well as three cases, one from the United Kingdom, one from South Africa and one from West Germany. After examining the context, this thesis concludes that the Supreme Court’s decision, although flawed, was reasonable.

This thesis examines the extent to which the judiciary can intervene into the executive branch’s power over foreign affairs. This thesis focuses on the Supreme Court of Canada’s decision in Canada (Prime Minister) v. Omar Khadr, 2010 SCC 3 where Omar Khadr requested the judiciary to order the executive branch to request his release from American custody in Guantanamo Bay, Cuba. The Supreme Court refused Khadr’s request, but issued a declaratory order stating that Khadr’s rights had been violated by the Canadian government. This thesis places this decision, and its follow-on litigation, in its international and comparative context by examining the international law of diplomatic protection as well as three cases, one from the United Kingdom, one from South Africa and one from West Germany. After examining the context, this thesis concludes that the Supreme Court’s decision, although flawed, was reasonable.

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