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UNIVERSITY OF NAIROBI

LAW SCHOOL

MASTER OF LAWS (LLM) PROGRAMME, September 2012-

Course code: GPR 603

Adapted from course outlines developed and revised between 2004 and 2008 by Prof Patricia

Kameri-Mbote, Dr JM Migai Akech, Dr Ben Sihanya; by Dr Ben Sihanya and Dr Celestine

Nyamu Musembi in 2008/2009; Dr Sihanya in 2009/2010 and 2010/2011; and Prof Sihanya and

Mr Njaramba Gichuki in 2011/12; 2012/13

Wednesday, 5.30 pm – 8.30 pm; Lecture Room 1

Course Convenors: Prof Ben Sihanya and Mr Njaramba Gichuki

Course Context

The post World War II period ushered in interest in law in development. The post-Cold War era

has been referred to as a time of “rule of law revival.” The rule of law is seen as indispensable to

establishing a market economy and constitutional government or democratic rule, the twin

projects of neo-liberalism. Therefore, legal and institutional reforms in one shape or another have

been undertaken or proposed in LDCs, in the developing and post-communist world. This revival

of the belief in the rule of law as central to development raises important questions. At the

theoretical level, what are the conceptual linkages between law and the processes of

democratization and development? What informs the expectation that law will influence these

processes? At an empirical or practical level, what lessons have emerged from two decades of

legal and institutional reform, and earlier “law and development” experiments? The course seeks

to answer these theoretical and practical or empirical questions through the prism of diverse

topics, such as construction of the state, “globalization,” governance reforms, international trade,

decentralization, ethnicity and inequality, gender and social relations, sustainable development,

law in mineral and infrastructural development, biosafety, food for health and development,

informalism and juridical pluralism, education and communication policy and law, and

intellectual property.

Course Materials

The course draws materials from a variety of sources. Every student must have these materials.

Only the materials listed as “essential reading” are put together. However, students are

encouraged to read the materials on the “recommended reading” list, particularly if the student

wishes to write in this area. The materials in “law and development” are not found in a single

text. However, the following is an indicative list of what may be regarded as “core texts” in the

field:

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Core Texts:

1. David Trubek & Alvaro Santos (eds) (2006) The New Law and Economic Development:

A Critical Appraisal, Cambridge University Press, Cambridge.

2. Muna Ndulo (ed) (2006) Democratic Reform in Africa: Its Impact on Governance &

Poverty Alleviation, James Currey, Oxford, Ohio University Press, Athens.

3. Colin Leys (1996) The Rise and Fall of Development Theory, East African Education

Publishers, Nairobi, Indiana University Press, Bloomington & Indianapolis.

4. Anthony Carty (ed) (1992) Law and Development, Dartmouth Publishing Co. Ltd.,

Aldershot.

5. Sammy Adelman & Abdul Paliwala (1993) Law and Crisis in the Third World, Hans Zell

Publishers, London.

6. John Hatchard & Amanda Perry-Kessaris (eds) (2003) Law and Development: Facing

Complexity in the 21st Century: Essays in Honour of Peter Slinn, Cavendish Publishing,

London.

7. Bruce Berman, Dickson Eyoh, & Will Kymlicka (eds) Ethnicity & Democracy in Africa,

James Currey, Oxford; Ohio University Press, Athens.

8. Mark Turner & David Hulme (1997) Governance, Administration & Development:

Making the State Work, Palgrave Houndmills, Basingstoke, Hampshire.

9. Michael Howlett & M. Ramesh (2003) Studying Public Policy: Policy Circles and

Subsystems, 2nd

ed, Oxford University Press, Canada.

10. See the texts cited in and discussions at the blogspot at

www.innovativelawyering.com/blogs

Assessment

(a) The assessment of this course will be as follows:

40% earned from a written analytical essay based on oral presentations on assigned

readings. The focus is on the relevant class or theme. This requires an appreciation of all

the readings. Engage the literature, legal instruments, and policy as well as operational

documents in terms of the issues, the evidence and the argumentation. Circulate the

presentation by Tuesday 5pm for the next class; comments made in class are them

addressed by the group in class and in the coursework essay; all group members must

sign the group report. The group report is then integrated and compiled from individual

presentations. It must be your original work – not plagiarized from any other person or

source or from the Internet. Clear analysis that fuses evidence and argumentation; proper

citation in text, footnote, and bibliography; maximum 4000 words; one-and-a-half

spacing; full and accurate citation; footnotes and bibliography; submit personally to the

secretaries, Commercial Law Department and sign for it; members to verify their group

has submitted.

(b) 60% earned from a written sit-in 3 hour examination administered at the end of the first

semester.

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Reading List

Class 1 (September 26, 2012): Introduction and Course Overview – led by Ben Sihanya &

Njaramba Gichuki

- Introductions: Convenors; Students.

- Discussion of students‟ and lecturers‟ expectations and obligations including reading in

advance, class attendance, contributions in class; registration for course.

- Overview of the Syllabus of Issues, course outline and reading materials.

Class 2 (October 3, 2012): What is Development? – led by Ben Sihanya & Njaramba

Gichuki

Concept or doctrine;

Conception or conceptualisation;

Indicators or manifestations of development

Theorizing and operationalisation of development….

Essential readings:

1. Amartya Sen (1999) Development as Freedom, Anchor Books, New York (chapter 2:

“The ends and means of development.”).

2. World Bank (2012) “Selected World Development Indicators,” World Development

Report 2012, World Bank, Washington, D.C. pp. (i)-33 at

http://data.worldbank.org/sites/default/files/wdi-2012-ebook.pdf (accessed 29/9/2012).

3. UNDP (2011) Human Development Report 2011 The Real Wealth of Nations:

Pathways to Human Development, Palgrave Macmillan Houndmills, Basingstoke,

Hampshire (Summary and Overview(p.(i) -12) (i.e. prelims to p.9); and Human

Development Index, pp. 17-19; Statistical annex 121-165, at

http://hdr.undp.org/en/reports/global/hdr2011/download/ (accessed 29/9/2012).

Recommended further readings:

1. Arturo Escobar (1995) Encountering Development: the Making and Unmaking of the

Third World, Princeton University Press.

2. Wofgang Sachs (ed.) (1992) The Development Dictionary: A Guide to Knowledge as

Power, Zed Books Ltd, London.

3. World Bank (1981) Accelerated Development in Sub-Saharan Africa: An Agenda for

Action, World Bank, Washington, D.C.

Class 3 (October 10, 2012): Theories of Development

(A) (October 10, 2011): The Economic and Institutional Perspectives – led by Ben

Sihanya & Njaramba Gichuki

Econometric theories of development as the dominant discourse; Neo-Marxist political economy;

what are institutions and why do they matter in development (theory and practice)? Stages of

development? Path dependence? Foundations of the “Kenya debate” (cf. Class 13).

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Essential readings:

1. Karl Marx, “A contribution to the critique of political economy,” in Eugene

Kamenka (ed.) The Portable Marx, Penguin Books, London (pp.158-161).

2. Colin Leys (1975) Underdevelopment in Kenya: The Political Economy of

Neocolonialism, 1964-1971, University of California Press, Berkeley (pp. 1-27) (also

Class 4).

3. Mancur Olson (1996) “Big bills left on the sidewalk: Why some nations are rich

others poor,” 10 Journal of Economic Perspective, pp. 3-24.

4. Benno J. Ndulo & Francis W. Mwega “Economic Adjustment Policies”, in Joel D.

Barkan (1994) Beyond Capitalism vs Socialism in Kenya & Tanzania, East African

Educational Publishers, Nairobi, pp. 101-127.(Also Class 13)

(B) (October 10, 2012): Cultural perspectives of development – led by Ben Sihanya &

Njaramba Gichuki

What is culture? Custom? Tradition? What is cultural development? How does culture relate to

political and socio-economic development? How does law relate with culture? Is there cultural

determinism in juridical and development terms? The impact of law on culture and vice versa

Education, training and mentoring)

Salaries and remuneration for education workers

Teachers in primary and secondary schools

Lecturers and Professors: Universities Academic Staff Union (UASU)

Employees under Universities Non Teaching Staff Union (UNTESU)

Employees under Kenya Union of Domestic, Hotel, Educational Institutions, Hospitals,

and Allied Workers (KUDHEIHA)

The impact of law on culture and vice versa

Essential readings

1. Abdullahi An-Na‟im (2002) “Introduction,” in Cultural Transformation and Human

Rights in Africa, Abdullahi An-Na‟im (ed), Zed Books Ltd, London (pp. 1-12) (also

Class 11A & 11B).

2. Abdullahi An-Na‟im & Jeffrey Hammond (2002) “Cultural transformation and human

rights in African societies,” in Abdullahi An-Na‟im (ed), Cultural Transformation and

Human Rights in Africa, Zed Books Ltd, London pp. 13-37 (also Class 11A & 11B).

3. David M. Trubek (1972) “Max Weber on law and the rise of capitalism,” Vol 3,

Wisconsin Law Review, pp. 720-753 (also Class 4A).

Recommended further readings:

1. Todaro Michael (1994) Economic Development, Longman, London, 5th

ed., pp. 77-108.

2. Douglass North (1995) “The new institutional economics and third world development,”

J. Harris et al., eds., Routledge, London (pp. 17-27).

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3. Daniel Etuonga-Manguelle (2000) “Does Africa need a cultural adjustment program?” in

Culture Matters: How Values Shape Human Progress, Lawrence E. Harrison & Samuel

P. Huntington, eds. (pp. 65-77).

4. S.A. Marglin (1990) “Towards the decolonization of the mind,” in Dominating

Knowledge and Development, Culture and Resistance, S.A Marglin eds., Clarendon

Press, Oxford (pp.1-28).

Class 4 (October 17, 2012): The state in development

(A) (October 17, 2012): Theorizing the state – led by Ben Sihanya

What is state? State, market, society, civil society or “people”; sovereignty; government,

democracy, governance; constitutional government; state in development discourse.

- Liberal, neoliberal and neo-conservative (neo-con) theory of the state: Weber, etc;

Montevideo Convention on Rights and Duties of States, 1933.

- Neo-Marxist or socialist state, etc. cf. communist state…

- Developed, developing country, LDC state…

- Cf: Predatory state; patriamonial state; rentier state; prebendal state…

- Neo-colonial, post-colonial state…

- Dependent, independent, interdependent…

- State v. Government v. Executive v. Presidency.

Essential readings

1. Adrian Leftwich (2005) “Theorizing the state” in Politics in the Developing World, Peter

Burnell & Vicky Randall (eds) Oxford University Press, Oxford. (cf. Prof Vincent

Simiyu – democracy in African history).

4. David M. Trubek (1972) “Max Weber on law and the rise of capitalism,” Vol 3,

Wisconsin Law Review, pp. 720-753 (also Class 3B).

2. Gordon White (1998) “Constructing a democratic developmental state,” in The

Democratic Developmental State: Politics and Institutional Design, Oxford University

Press, Oxford.

3. Yash P. Ghai (1993) “Constitutions and governance: A prolegomenon,” in Sammy

Adelman and Abdul Paliwala (eds) Law and Crisis in the Third World, Hans Zell

Publishers, pp. 51-74.

(B) (October 17, 2012): The African state and the legacy of colonialism – led by

Njaramba Gichuki

The impact of colonialism on the African state. Did colonialism develop or underdevelop

Africa? Neocolonialism and its impact on African development.

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Essential Readings

1. Colin Leys (1975) Underdevelopment in Kenya: The Political Economy of

Neocolonialism, 1964-1971, University of California Press, Berkeley (pp. 1-27) (cf. Class

3).

2. Mahmoud Mamdani (1996) “Introduction: Thinking through Africa‟s impasse,” in

Mahamoud Citizen and Subject: Contemporary Africa and the Legacy of Late

Colonialism, Princeton University Press. (pp. 3 – 34).

3. Colin Leys (1975) Underdevelopment in Kenya: The Political Economy of Neo-

Colonialism, 1964–1971, University of California Press, Berkeley (pp. 63 – 117).

4. Mary L. Dudziak (2006) “Working towards democracy: Thurgood Marshall and the

Constitution of Kenya,” 56 Duke Law Journal 721.

5. Martin Meredith (2011) The State of Africa: A History of the Continent Since

Independence, Simon & Schuster, London, pp. 1-14.

Recommended further reading on the state in development

1. Peter Evans (1992) “The State as Problem and Solution: Predation, Embedded Autonomy

and Structural Change,” in S. Haggard and D. Kaufman (eds.), The Politics of Economic

Adjustment: International Constraints, Distributional Conflicts and the State, Princeton

University Press, Princeton.

2. J. Herbst (2000) “States and Power in Africa. Comparative Lessons in Authority and

Control,” Princeton, Princeton University Press.

3. Philip G. Cerny (1990) The Changing Architecture of Politics: Structure, Agency and the

Future of the State. London: Sage.

4. M. Ottaway (2002) “Rebuilding State Institutions in Collapsed States” Development and

Change 33(5):1001-23 (Also Published in J. Milliken (ed.) State Failure, Collapse and

Reconstruction. London: Blackwell Publisher).

5. Nordlinger, E.A. (1987) “Taking the State Seriously,” in M. Weiner and S.P. Huntington

(eds.), Understanding Political Development, Boston and Toronto: Little, Brown and Co.,

pp. 353- 90. Or Nordlinger, E.A. (1981) On the Autonomy of the Democratic State,

Cambridge MA and London: Harvard University Press.

6. Charles Tilly (1992) Coercion, Capital and European States, AD 990- 1992, Cambridge

MA and Oxford UK, Blackwell, especially chapter 7.

7. Francis Fukuyama (2004) State Building, Governance and World Order in the Twenty-

First century, London: Profile Books.

Class 5 ( October 24, 2012): The State and Globalization

(A) ( October 24, 2012): State and Governance in Globalization Context – led by

Njaramba Gichuki

What is the role of the state in governance? What is “globalization”? What is the role of the state

in “globalization”? “global” v. international v. transnational v. national; transnational legal

process (TLP); transnational peace, security and criminal justice; what are the key issues in the

foregoing? Cf. piracy, , crimes against humanity (focus on the list in this class); focus on Kenya

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in the transnational criminal justice process (International Criminal Court (ICC), etc); the

marginalization of Africa.

Essential readings

1. Joseph Stiglitz (2002) Globalization and its Discontents, Penguin Books, London (pp. 3-

52).

2. Benedict Kingsbury et al (2005) “The emergence of global administrative law,” 68 Law

and Contemporary Problems 15.

3. HWO Okoth-Ogendo (2000) “The quest for constitutional government,” in Goran Hyden,

Dele Olowu, and HWO Okoth-Ogendo (eds) African Perspectives on Governance, Africa

World Press Inc. Asmara, Eritrea.

4. Edwin A. Gimode (2001) “An anatomy of violent crime and insecurity on Kenya: The

case of Nairobi 1985–1999,” Africa Development Journal, Vol. XXVI, Nos. 1 & 2.

5. Musambayi Katumanga (2010) “Militarized spaces and the post-2007 electoral violence,”

in Karuti Kanyinga and Duncan Okello (eds) Tensions and Reversals in Democratic

Transitions: The Kenya 2007 General Elections Society for International Development

(SID) and Institute for Development Studies (IDS), University of Nairobi, Nairobi, pp.

533-564.

6. Alexis Arieff, Rhoda Margesson, Marjorie Ann Browne, and Matthew C. Weed (2011)

“International Criminal Court Cases in Africa: Status and Policy Issues,” Congressional

Research Service

7. David F. Gordon(1994) “International economic relations, regional cooperation, and

foreign policy”, in Joel D. Barkan (ed)(1994) Beyond Capitalism vs Socialism in Kenya

& Tanzania, East African Educational Publishers, Nairobi, pp. 235-262.

Recommended further readings

1. Philippe Sands (2205) Lawless World: America and the Making and Breaking of Global

Rules, London: Allen Lane (Preface and Chapter 1: “International law: A short and recent

history‟).

2. Willy Brandt North–South - A Program for Survival (1980) (Report of the Independent

Commission on International Development Issues). Read the following excerpts: Chapter

3: “Mutual Interests,” pp. 64-77; Introduction; chapter 17: “A Programme of Priorities,”

and Annex 1.

3. Palan, Ronen and Jason Abbott, with Phil Deans (1996) State Strategies in the Global

Political Economy, London: Cassel, Chapters 1 and 2.

4. World Bank (1997) World Development Report 1997 The State in a Changing World,

Washington: The World Bank.

5. Hirsch, Joachim (1995) “Nation-state, international regulation and the question of

democracy,” Review of International Political Economy 2(2).

6. Hooghe, Liesbet and Gary Marks (2003) “Unraveling the Central state, but How? Types

of Multi-level Governance,” American Political Science Review 97: 233-243.

7. Halabi, Y. (2004) “The expansion of global governance in the third world,” International

Studies Review 6 pp. 21- 48.

8. Wolf, M (2004) “Globalisation and Global Economic Governance,” Oxford Review of

Economic Policy: 20(1).

9. Stiglitz, J., (2002) Globalization and its Discontents, London: Allen Lane. (Conclusion).

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10. Antonio Cassese (1998) “Reflections on International Criminal Justice,” The Modern

Law Review, Vol. 61, No. 1, pp. 1-10, at http://www.jstor.org/stable/1097333 (accessed

October 17, 2011).

11. Payam Akhavan (2001) “Beyond Impunity: Can International Criminal Justice Prevent

Future Atrocities?” The American Journal of International Law, Vol. 95, No. 1 (Jan.,

2001), pp. 7-31, at http://www.jstor.org/stable/2642034 (accessed October 17, 2011).

(B) ( October 24, 2012): The State in a Globalising World: Governing International Trade

– led by Njaramba Gichuki

What is international trade? What is the role of international trade in development? What is the

role of the state and law in trade (and dev)? Public procurement and disposal of goods, services

and works, under WTO; public procurement in Kenya – efficiency, timeliness, concerns

regarding anti-corruption, and integrity; administration and regulation, procurement reforms.

Essential readings

1. Dani Rodrik (2001) “Global governance of trade as if development mattered,” Paper

prepared for the United Nations Development Programme, pp. 1- 6, 11-13, 31-46.

2. Surya P. Subedi (2003) “The road from Doha: The Issues for the Development Round of

the WTO and the Future of International Trade,” 52(2) International and Comparative

Law Quarterly, 425.

3. Migai Akech (2004) “Development partners and governance of public procurement in

Kenya: Enhancing democracy in the administration of aid,” New York University Journal

of International Law & Politics.

4. Public Procurement Oversight Authority (PPOA) (2007) Assessment of the Procurement

System in Kenya PPOA Report 2007.

5. Walter Odhiambo (2011) “The distribution of costs and benefits in trade in the context of

the East African regional integration process,” in East African Integration: Dynamics of

Equity in Trade, Education, Media and Labour Society for International Development

(SID), Nairobi, Chapter 1.

Recommended further reading

1. Gary Fields (2003) “International Labor Standards and Decent Work: Perspectives from

the Developing World,” in International Labor Standards: Globalization, Trade and

Public Policy, Robert J. Flanagan & William B. Gould (eds).

2. Christine Breining-Kaufmann (2005) “The Legal Matrix of Human Rights and Trade

Law: State Obligations versus Private Rights and Obligations,” in Human Rights and

International Trade, Thomas Cottier, Joost Pauwelyn & Elisabeth Burgi (eds), pp. 29-94,

New York: Oxford University Press.

3. Robert Howse & Makau Mutua (2000) “Protecting Human Rights in a Global Economy:

Challenges for the World Trade Organization,” (paper commissioned by Rights and

Democracy).

4. Richard Elliot, Marie-Helene Bonin & Carol Devine “Patents, International Trade Law

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and Access to Essential Medicines) [electronic version available from course convenor].

5. Sue Arrowsmith (2004) “Public procurement: An appraisal of the Uncitral Model Law as

a global standard,” The International and Comparative Law Quarterly, Vol. 53, No. 1,

Cambridge University Press, pp. 17-46 at http://www.jstor.org/stable/3663135 (accessed

on October 17, 2011).

6. Khi V. Tha (2001) “Public procurement re-examined,” Journal of Public Procurement,

Volume 1, Issue 1, 9-50.

7. Walter Odhiambo and Paul Kamau (2003) Public Procurement: Lessons from Kenya,

Tanzania and Uganda OECD Development Centre, Working Paper No. 208.

8. Wayne A. Wittig (1999) “Building value through public procurement: A focus on

Africa,” presentation to the 9th International Anti-Corruption Conference, 10-15 October

1999, Durban, South Africa.

Class 6 (October 31, 2012): The Rule of Law and the Rise, Fall and Reinvention of Law and

Development Movement – led by Ben Sihanya

What is law (again); dev? What is the (problematic) link between law and development

(generally, in Kenya and Africa); law and development v. law in development. Rule of law v.

law in development movements: three or four or five? Post WWII, post independence, post Cold

War (SAPs…), GJLOS… phase.

Essential readings

1. David M. Trubek and Marc Galanter (1974) “Scholars in self-estrangement: Some

reflections on the crisis in law and development studies in the United States” Wisconsin

Law Review 1974: 1062-1101.

2. John H. (1977) Merryman “Comparative law and social change: On the origins, style,

decline & revival of the law and development movement,” The American Journal of

Comparative Law 25:457-83.

3. William Wintford (2000) “The rule of law: New reflections on an old doctrine,” Vol. 6

(2) East African Journal of Peace and Human Rights.

4. Rajeev Dhavan (1994) “Law as concern: reflecting on „law and development‟” in Yash

Vyas et al. (eds) Law and Development in the Third World, Kenya Litho Limited,

Nairobi, 25-50 (chap. 2).

5. Duncan Kennedy (2006) “Three globalizations of law and legal thought: 1850-2000,” in

David M. Trubek & Alvaro Santos (eds.) The New Law and Economic Development: A

Critical Appraisal, Cambridge University Press, Cambridge (pp. 19-73).

Recommended further reading

1. Celestine Nyamu–Musembi, (2005) “Law and Development,” in Encyclopedia of

International Development, Forsyth T (ed), New York & London: Routledge.

2. Thomas Carothers (1999) Aiding Democracy Abroad: The Learning Curve. Washington,

Carnegie Endowment for International Peace.

3. Julio Faundez (1997) Good Governance and Law: Legal and Institutional Reform in

Developing Countries, New York: St.Martin‟s Press.

4. James Gardner (1980) Legal Imperialism: American Lawyers and Foreign Aid in Latin

America, Madison: University of Wisconsin Press.

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5. Patrick McAuslan (1997) “Law, Governance, and the Development of the Market:

Practical Problems and Possible Solutions” in Faundez, ed., 1997.

6. Brian Tamanaha (1995) “The Lessons of Law–and-Development Studies” (book review),

vol. 89 American Journal of International Law, 470.

7. Anthony Carty (1992) Law and Development, Aldershot: Dartmouth Publishing

Company Ltd.

8. Francis Snyder (1980) “Law and Development in the Light of Dependency Theory” Law

and Society 14:723- 804.

9. Thomas Carothers (1998) “Rule of law revival.” Foreign Affairs, vol.77, No.2.

10. Mary McClymont and Stephen Golub (eds) (2000) Many Roads to Justice: The Law-

Related Work of Ford Foundation Grantees Around the World, New York: The Ford

Foundation.

11. Ibrahim Shihata (1997) Complementary Reform: Essays on Legal, Judicial, and other

Institutional Reforms Supported by the World Bank, The Hague; Boston: Kluwer Law

International.

12. Stephen Golub (2003) “Beyond Rule of Law Orthodoxy: The Legal Empowerment

Alternative,” Working Paper No. 41, Rule of Law Series, Carnegie Endowment for

International Peace, Washington, D.C.

13. HWO Okoth-Ogendo (1991) “Constitutions without Constitutionalism: reflections on

African political paradox” in Douglas Greenberg S. N. Kartz, B. Oliviero and S. C.

Wheatley (Eds) Constitutionalism and Democracy: Transitions in the Contemporary

World (Chapter 4) OUP, New York.

14. Ben Sihanya & Duncan Okello (2010) “Mediating Kenya‟s post-election crises: The

politics and limits of power sharing agreement,” in Karuti Kanyinga & Duncan Okello

(eds) Tensions and Reversals in Democratic Transitions: The Kenya 2007 General

Elections, Society for International Development (SID) and Institute for Development

Studies (IDS), University of Nairobi.

15. Constitution of Kenya 2010

16. Commission for the Implementation of the Constitution Act, 2010

17. Vetting of Judges and Magistrates Act, 2011

18. Judicial Service Act, 2011

Class 7 (November 7, 2012): Sustainable Development, Environmental Governance, Life

Sciences, Health, Food and Security

(A) (November 7, 2012): Sustainable Development and Environmental Governance –

led by Ben Sihanya

Mineral development; prospecting and exploration and tentative juridical and political economy

issues like ecological and social concerns; development prospects; constitutional and juridical

questions.

Oil

Gas

Coal mining: “integrated development”; the Chinese connection

Other commercial minerals

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Essential readings

1. Kevin Gray (2003) “Accomplishments and new directions?” 52 International and

Comparative Law Quarterly 256.

2. Philipe Cullet (2003) Differential Treatment in International Law and its Contribution to

the Evolution of International Law, Aldershot: Ashgate (pp.1-20).

3. H.W.O. Okoth Ogendo (2008) “Managing the agrarian sector for environmental

sustainability,” in C.O. Okidi, P. Kameri-Mbote, and Migai Akech (eds) Environmental

Governance in Kenya: Implementing the Framework Law East African Educational

Publishers Ltd, Nairobi.

4. Cleophas O. Torori, Albert O. Mumma and Alison Field-Juma, “Land tenure and water

resources,” in Calestous Juma and J.B. Ojwang‟s (eds) In Land We Trust: Environemt,

Private Property and Constitutional Change

5. Migai Akech (2008) “Governing water and sanitation in Kenya,” in C.O. Okidi, P.

Kameri-Mbote, and Migai Akech‟s (eds) Environmental Governance in Kenya:

Implementing the Framework Law East African Educational Publishers Ltd.

6. George O. Ochich (2009) “Towards a sustainable energy law for Kenya: a proposal

towards revamping Kenya‟s energy law for sustainable development,” Law Society of

Kenya Journal.

7. Kenya Chamber of Mines, “Policy position paper on the proposed amendments of the

Mining and Minerals Bill 2009,” compiled by S.K Munyiri (BSc. Geol., GSK)

8. Mining Act Cap 306 of 1940

9. National Minerals and Mining Policy 2010 Draft (Final)

10. “Sh 8.5bn coal mines company under fire,” Nairobi Law Monthly Vol. 3, Issue No.9,

September 2012, p. 16-18.

(B) (November 7, 2012): Regulating the Frontiers of Innovation: Life Sciences; Health,

Food and Security;Bio-safety integration led by Ben Sihanya

Essential readings

1. The Biosafety Act, No. 2 of 2009.

2. Bio-safety Regulations, 2012

3. Breast Milk Substitutes Bill, 2012

4. Mother‟s milk is best, so why oppose Bill?” Daily Nation, September 24, 2012 p.12

5. “The interests at play in baby milk debate,” Saturday Nation September 22, 2012, at

http://www.nation.co.ke , p.9

6. Prof Ben Sihanya (2012) “Regulate breast milk substitutes equitably,” at

sihanya@innovativelawyering.com/blogs

7. Sheila Jasanoff (1995), Science at the Bar: Law, Science and Technology in

America, Harvard University Press, Cambridge, pp.1-23.

8. Ben Sihanya (1994) “Technology transfer, intellectual property rights and bio-safety:

strategies for implementing the Convention on Biodiversity,” in AgBiotech News

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and Information, Centre on Agricultural Biotechnology (CAB), London (Vol. 6 No.

3, pp. 53N-60N, 1994) (refereed).

9. Ann Njoki Kingiri (2010) “Experts to the rescue? An analysis of the role of experts

in biotechnology regulation in Kenya,” Journal of International Development, 22,

325-340.

10. Ann Kingiri and Seife Ayele (2009) “Towards a smart biosafety regulation: The case

of Kenya,” Environ. Biosafety Res. 8 (2009), 133-139.

11. James Keely (2003) “The Biotech Developmental State? Investigating the Chinese

Gene Revolution,” IDS Working Paper No. 207, Brighton: IDS, Sussex (available at

www.ids.ac.uk –follow links under „series publication‟).

12. Robert L. Paarlburg (2001) The Politics of Precaution: Genetically Modified Crops

in Developing Countries, Johns Hopkins University Press, Baltimore (pp.1-8; 44-

66).

(C)(November 7, 2012): Infrastructure development (railways, roads, housing); Law in

infrastructure development

Road construction

Housing

Railway transport; Rail expansion and modernization;Railway concessions – Kenya

Railway divestiture; RVR and beyond- case law

Lamu Port and Lamu-Southern Sudan-Ethiopia Transport Corridor (LAPSSET): political

economy and legal questions.

Tatu City, Thika Greens

Essential readings

1. Government of Kenya (2007) Kenya Vision 2030.

2. Richard Stren, Mohamed Halfani & Joyce Malombe (1994) “Coping with Urbanization

and Urban Policy”, in Joel D. Barkan (ed)(1994) Beyond Capitalism vs Socialism in

Kenya & Tanzania, East African Educational Publishers, Nairobi, pp. 175-200.

1. Constitution of Kenya 2010

2. The Kenya Railways Corporation (Amendment) Act, 2005.

3. Kenya Roads Act

4. The Housing Act. Chapter 117. Revised Edition 2010 (1990).

5. The Physical Planning Act. Chapter 286. Revised Edition 2010 (1996).

6. Any other?

Recommended further reading:

1. Capital Markets Real Estate Investment Trusts Regulations, 2012.

2. Built Environment bill, 2012.

3. National Building Regulations, 2012.

4. National Building Maintenance Policy.

5. Building Surveyors Bill, 2012.

13

6. The Land Act 2012

7. The Land Registration Act 2012

Class 8 (November 14, 2012): Regulating the Frontiers of Innovation:

(A) Intellectual property, innovation and anti-counterfeiting – led by Ben Sihanya What is innovation? IP? Infringement, counterfeiting, piracy; Goldstein‟s copyrightability and

infringement test; what is the role of IP in innovation, ToT, development? Reforming IP and

innovation law and policy. NB: IP is a global concept. What are its specific doctrines? Context

specific issues e.g. Copyright in Kenya‟s book, or communication, or entertainment industries.

Essential readings

1. Ben Sihanya (2008) “Intellectual property for innovation and industrialization in

Kenya,‟‟ 4 Convergence, pp. 185-213; Sihanya (2009) “Intellectual Property and

Mentoring for Innovation and Industrialization in Kenya,” Law Society of Kenya Journal,

Vol. 5, 2009 No. 1, pp 29-57.

2. Ben Sihanya (2001) “IP confronts counterfeiting in Africa: protecting innovators and

consumers in the cyber society,” Chapter 19 in Prof Thomas Wilhemsson et al. (eds.)

Consumer Law in the Information Society Kluwer Law International, London: pp. 329-

364.

3. Margaret Chon (2006) “Intellectual property and the development divide,” 27 Cardozo

Law Review, 2813; reprinted in

Recommended further reading

1. Ben Sihanya (2005) “Patents, parallel importation and compulsory licensing of

HIV/AIDS drugs: the experience of Kenya,” in Managing Challenges of WTO

Participation; 45 Case Studies, Peter Gallagher et al eds., Cambridge: Cambridge

University Press (pp.264-283).

2. Drahos, Peter & John Braithwaite, Information Feudalism: Who owns the Knowledge

Economy? London: Earthscan (pp.1-18).

3. Commission on Intellectual Property Rights (2002), Integrating Intellectual Property

Rights and Development Policy (pp. 1-28).

4. Njaramba Gichuki (2009) Financing Innovations: Enabling Intellectual Property (IP) to

Steer National Development Paper presented at the 2nd

National Conference on

Dissemination of Research Results and Exhibition of Innovations, 4th

– 8th

May 2009,

KICC, Nairobi; Abstract published in Ministry of Higher Education, Science and

Technology, 2nd

National Conference on Dissemination of Research Results and

Exhibition of Innovations, Programme and Abstracts, p. 24. (can be obtained from

Convenor).

5. Njaramba Gichuki (2008) Intellectual Property (IP) Audit, Valuation and Management:

The Kenyan Position Paper presented at the 1st National Conference and Exhibition of

Research Results and Review of Innovations, 28th

–30th

April 2008, KICC, Nairobi;

Abstract published in Ministry of Higher Education, Science and Technology, 1st

National Conference and Exhibition of Research Results and Review of Innovations,

Abstracts for Oral Presentations, p. 27 (can be obtained from Convenor).

14

Class 9 (November 21, 2012): Regulating the Frontiers of Innovation

(A) Communication and Education Policy – led by Ben Sihanya

What is communication? Content and media of communication or the three layers in what

Sihanya calls the Benkler-Lessig model: physical, code and content layer. Counterfeit phones in

Kenya? Digital migration or switch ove; Implications of the three layers on government or

bureaucratic allocation or regulation v. market auctions v. the commons strategy. Regulating

communication: Lessig‟s four modalities (market technology or architecture, social norms, law).

Communication regulatory approaches agencies, and processes: state, self, independent,

“cocktail.”

What is education, training, research…? What are the key policy issues in education – access,

equity; standards, quality and relevant; financing education; management and governance;

Research, science, technology, innovation, ICT, ODEL, EMIS…; Relate the foregoing to

university and legal education.

Human resource development and labour questions in education; the role of employers or

administrators like Teachers Service Commission (TSC), University Councils, Kenya National

Union of Teachers (KNUT), Kenya Post Primary Education Teachers (KUPPET), Universities

Academic Staff Union (UASU), Universities Non Teaching Staff Union (UNTESU) and Kenya

Union of Domestic, Hotel, Educational Institutions, Hospitals, and Allied Workers

(KUDHEIHA) ; Salaries and Remuneration Commission, president, Prime minister,

Government ministers.

Essential readings

1. Yochai Benkler (2003) “Freedom in the commons: towards a political economy of

information” 52 Duke Law Journal 245.

2. Bernard Sihanya (2000) “Infotainment and Cyber law in Africa: Regulatory Benchmarks

for the Third Millennium,” 10 Transnational Law and Contemporary Problems, pp. 583-

640.

3. Ben Sihanya (2008) “Intellectual property, quality assurance and ISO in Kenyan

universities,” 4 Law Society of Kenya Journal, pp. 35-64.

4. Republic of Kenya (2006) National Policy on Information and Communication

Technology.

5. Kenya Communications Act 1998; Kenya Communications Amendment Act, 2008

6. The Media Act 2007, Kenya.

7. University Act, Council for Legal Education (CLE) Act; Advocates (Degree

Qualifications) Regulations; Advocate (Admission) Regulations; CLE Regulations on

Accreditation 2009 of legal training institutions.

15

Class 10 (November 28, 2012): Sustainable Development in the financial sector – led by

Njaramba Gichuki

Issues in development in the financial sector; role of Central Bank of Kenya in development;

Regulation of banks, building societies; mobile money transfer; capital and securities market

development; microfinance institutions and saccos; money laundering; project financing. The

viability of a joint financial services regulator.

Essential readings

1. Njaramba Gichuki (2010) Law of Financial Institutions in Kenya, Law Africa Publishing

Ltd, Nairobi. ISBN 9966-1511-8-6

2. Njaramba Gichuki (2011) The Paradox in the Implementation Matrix in Capital Markets

Reforms in Kenya, Paper presented at the Emerging Trends in Commercial & Financial

Law Workshop, June 9–10, 2011, KCB Leadership Centre, Karen, Nairobi.

3. Mbewa, M., Ngugi, R. & Kithinji, A. (2007)Development of Bonds Market: Kenya’s

Experience, KIPPRA Working Paper No. 15, December 2007.

Recommended further readings

1. International Finance Corporation (1993) Regulatory Environments in Emerging

Markets: Some conceptual and practical issues to be considered by emerging market

regulators and foreign portfolio investors, Washington DC.

2. World Bank (1996) Securities Market Development: A Guide for Policy Makers.

4. Fabbozzi, F. J. & Modigliani, F. (2007) Capital Market Institutions and Instruments (3rd

edition), Prentice-Hall, New Delhi.

5. Njaramba Gichuki (2009) Financing Innovations: Enabling Intellectual Property (IP) to

Steer National Development Paper presented at the 2nd

National Conference on

Dissemination of Research Results and Exhibition of Innovations, 4th

–8th

May 2009,

KICC, Nairobi; Abstract published in Ministry of Higher Education, Science and

Technology, 2nd

National Conference on Dissemination of Research Results and

Exhibition of Innovations, Programme and Abstracts, p. 24 (can be obtained from

Convenor).

Class 11(December 5, 2012): Legislating Equity

(A) (December 5, 2012): Gender and Social Relations, Kenya & Africa – led by

Njaramba Gichuki

Gender mainstreaming. The one-third rule; is it a value? Principle! Rule? Consider its application

in the context of appointment v. elective position in national v. county government

Essential readings

1. Abdullahi An-Na‟im (2002) “Introduction,” in Cultural Transformation and Human

Rights in Africa, Abdullahi An-Na‟im (ed), Zed Books Ltd, London (pp. 1-12) (also in

Class 3B).

16

2. Abdullahi An-Na‟im & Jeffrey Hammond (2002) “Cultural transformation and human

rights in African societies,” in Abdullahi An-Na‟im (ed), Cultural Transformation and

Human Rights in Africa, Zed Books Ltd, London, pp. 13-37.

3. Shahrashoub Razavi & Carol Mille (1995) “From WID to GAD: Conceptual Shifts in the

Women and Development Discourse,” United Nations Research Institute for Social

Development.

4. Naila Kabeer (2003) Gender Mainstreaming in Poverty Eradication and the Millennium

Development Goals: A Handbook for Policy–Makers and Other Stakeholders, London:

Commonwealth Secretariat (Chapter 4 and chapter 8).

5. Collete Akoth Suda (2007) Formal Monogamy and Informal Polygyny in Parallel:

African Family Traditions in Transitions University of Nairobi Inaugural Lecture,

October 4, 2007.

Recommended further reading

1. Patricia Kameri–Mbote (2006) “Women, Land Rights and the Environment: The Kenya

Experience,” 49 Development, 43-48.

2. Diane Elson (1995) Male Bias in the Development Process, Manchester: Manchester

University Press, (pp.1-15).

3. Naila Kabeer (1994) “Connecting, extending, reversing: development from a gender

perspective,” in Reversed Realities: Gender Hierarchy in Development Thought, London

(pp. 69-94).

4. Celestine Nyamu (2000) “How should human rights and development respond to cultural

legitimization of gender hierarchy in developing countries?” 41(2) Harvard International

Law Journal, pp. 381- 418.

5. Celestine Nyamu–Musembi (2002) “Are local norms and practices fences or pathways?

The example of woman property rights,” in Cultural Transformation and Human Rights

in Africa, Abdullahi An – Na‟im, ed., London: Zed Books.

6. Nalia Kabeer (2004) “Labour standards, women rights, basic needs: Challenges to

collective action in a globalizing world,” in Global Tensions: Challenges and

Opportunities in the World Economy (2004).

7. Lourdes Beneria, Gender, Development and Globalization: Economics as if all People

Mattered (2003) [chapter 4 “Global/Local Connections: Employment Patterns, Gender

and Informalization”].

8. Dzozi Tsikata & Joanna Kerr (2000) Demanding Dignity: Women confronting economic

reforms in Africa (The North-South Institute & Third World Network-Africa).

9. Kenya Human Rights Commissions (KHRC) (2004) Manufacture of Poverty: the Untold

Story of EPZs in Kenya, Nairobi: KHRC.

10. Elizabeth Gwaunza, Tsitsi Nzira & Virginia Chitanda (2000) “The socio-economic and

legal implications of EPZs in Zimbabwe: Some emerging gender concerns,” in

Demanding Dignity: Women Confronting Economic Reforms in Africa (Tsikata & Kerr,

eds.) (The North-South Institute & Third World Network-Africa).

17

(B) (December 5, 2012): Ethnicity, Decentralization and Integrity for prosperity in

Kenya & Africa – led by Njaramba Gichuki

Ethnicity, regional balancing. Ethnicity and devolution; values, principles and rules in

international instruments and in the constitution of Kenya, Nigeria and Uganda .

Essential readings

1. Stephen Ndegwa (1997) “Citizenship and ethnicity: An examination of two transition

moments in Kenya politics,” 91 American Political Science Review, 599.

2. Joel D. Barkan & Michael Chege (1989) “Decentralizing the state: District focus and the

politics of reallocation in Kenya,” 27 Journal of Modern African Studies, 431-453.

3. Francis C. Enemuo (2000) “Problems and prospects of local governance,” in Goran

Hyden, Dele Olowu, and HWO Okoth-Ogendo (eds) African Perspectives on

Governance, Africa World Press Inc. Asmara, Eritrea.

4. Colin Leys (1977, 1996) “Learning from the Kenya debate,” in Colin Leys The Rise and

Fall of Development Theory, EAEP, Nairobi; Indiana University Press, Bloomington &

Indianapolis; James Currey, Oxford, pp. 143-163 (chap. 7).

5. Muna Ndulo (2006) “Decentralization: challenges of inclusion & equity in governance,”

in Muna Ndulo (ed) Democratic Reform in Africa: Its Impact on Governance & Poverty

Alleviation, James Currey, Oxford, Ohio University Press, Athens, pp 79-98.

6. Reference texts:

a. Constitution of Kenya 2010 (chapter that focuses on decentralization and

provisions).

b. Draft Constitution of Kenya 2004 (Bomas Draft).

c. Proposed Constitution of Kenya , August 2005 (Referendum Draft) (chapter

on devolution etc).

d. National Cohesion and Integration Act, 2008

Recommended further reading 1. Society for International Development (2006) Readings on Inequality in Kenya: Sectoral

Dynamics and Perspective, Nairobi: SID, East Africa.

2. Olowu, Dele & James Wunsch (eds.) (2004) Local Governance in Africa: The Challenges

of Democratic Decentralization, London: Lynne Reinner Publishers.

3. Ghai, Yash (1967) “Independence and Safeguards in Kenya,” 3 East Africa Law Review.

4. Golooba-Mutebi, Frederick (2004) “Reassessing Popular Participation in Uganda,”

Public Administration and Development 24, 289-304.

5. Olowu, Dele (2001) “Decentralization of Policies and Practices under Structural

Adjustment and Democratization in Africa,” (UNRISD) Democracy, Governance and

Human Rights, Programme Paper No. 4.

6. Smoke, Roger and Geoffrey Wood (2004) “Kenya: Erosion and Reform from the Center”

in Local Governance in Africa: The Challenges of Democratic Decentralization, (Dele

Olowu & James Wunsch, eds.) pp. 211-236, London: Lynne Rienner Publishers.

7. Roger Southall and Geoffrey Wood (1996) “Local government and the return to

multipartyism in Kenya,” Vol. 95 (381) African Affairs, 501-527.

18

Class 12 (December 13, 2012): Beyond juridical Centrism: Informality and Regulation “in

the shadow of the law”- led by Ben Sihanya

Rule of law‟s emphasis on rules and formal procedures; the injustice and rigidity of formalism;

the justice of informalism; the limits of informalism; NB: informalism operates “in the shadow

(or context) of the law” i.e. legal rules and procedures undergird or apply to informal

transactions…; NB: in all these contexts, conceptualise, problematise, and contextualise legal

centrism (or formalism) and informalism in relation to economic transactions like trade or

business, and informal or jua kali sector; land transactions (including ownership, access); and

social relations like marriage or related domestic relations.

The rule of law and law in development tend to focus on certainty, predictability, equality (equal

treatment), and even formalism of substantive legal rules. There is also focus on certainty and

predictability in legal or administrative procedures. Consider pros & cons. Might certainty and

predictability or formalism entrench treating unequal‟s equally; procedural rigidity and hence

injustice? Consider formalism v. informalism in economy and property rights (esp. land

ownership, access and administration); economic activities and transitions related to production

and exchange or trade (substantive and procedural) – eg formal sector manufacturing and service

delivery v. jua kali…

Social relations – especially domestic relations relating to 4-5 year systems of marriage, related

transactions, including succession - questions.

Essential readings

1. Celestine N. Musembi (2007) “Breathing life into dead theories about property rights: De

Soto and land relations in rural Africa,” Vol.28 (8) Third Quarterly (Special Issue:

Market –Led Agrarian Reform: Critical Reflections) pp. 1457-1478.

2. Collete Akoth Suda (2007) Formal Monogamy and Informal Polygyny in Parallel:

African Family Traditions in Transitions University of Nairobi Inaugural Lecture,

October 4, 2007.

3. Julio Ruffini (1978) “Disputing livestock in Sardinia” in The Disputing Process: Law in

Ten Societies, Laura Nader & Todd, eds.

4. Marc Galanter (1981) “Justice in many rooms: courts, private ordering, and indigenous

law” Journal of Legal Pluralism 19: l-47.

5. Marc Galanter (1974) “Why the „haves‟ come out ahead: Speculations on the limits of

legal change,” Law & Society Review 9: 95-160.

Recommended further reading

1. Hernando De Soto (2000) The Mystery of Capital: Why Capitalism Triumphs in the West

and Fails Everywhere Else, New York: Basic Books (especially chapter 3).

2. Patrick McAuslan (1998) “Making the law work: Restructuring land relations in Africa”

Development and Change, 29 (3), pp. 525-552.

3. Sally Engle Merry (1990) Getting Justice and Getting Even: Legal Consciousness Among

Working Americans, Chicago: University of Chicago Press.

4. Celestine Nyamu–Musembi (2002) “Are local norms and practices fences or pathways?

The example of woman property rights,” in Cultural Transformation and Human Rights

in Africa, Abdullahi An – Na‟im, ed., London: Zed Books.

19

5. Von Benda–Beckman, (2003) “Mysteries of capital mystification of legal property?‟‟ 41

FOCAAL-European Journal of Anthropology, 187.

Class 13 ( December 19, 2012): Towards Liberty, Integrity and Prosperity: Prospects for

Development in Kenya and Africa; Reforms; national and international development

processes; actors in development; bureaucracy & development administration – led by

Njaramba Gichuki

The “Kenya debate.”. Kenya Vision 2030 as an instrument for development. Is Vision 2030 a

legal instrument? Is it a political manifesto? Does it complement the Constitution? Taxation and

sovereignty. Role of taxation in development.

What is administration and administrative bureaucracy? Briefly conceptualise, problematise and

contextualise the role of actors in development, especially lawyers as advocates, magistrates,

judges, politicians, scholars, in civil society, in international organizations, bureaucrats… What

is their role in the law and development process?

What are some of the key issues regarding the role of liberty and integrity in prosperity (i.e. in

law in development)? What reforms are necessary at the national and transnational level to

secure development through law?

Essential readings

1. Kenya, Government of (2007) Kenya Vision 2030.

2. Kenya, Government of (2008) First Medium Term Plan (2008-2012).

3. Kenya, Government of (2003) Economic Recovery Strategy (ERS) for Wealth and

Employment Creation.

4. Ghai Yash Pal (1987) “Law, development and African scholarship” l987 Modern Law

Review 750-776

5. Adebayo Williams (2000) “Intellectuals and governance,” in Goran Hyden, Dele Olowu,

and HWO Okoth-Ogendo (eds) African Perspectives on Governance, Africa World Press

Inc., Asmara, Eritrea.

6. Dele Olowu (2000) “Bureaucracy and democratic reform,” in Goran Hyden, Dele Olowu,

and HWO Okoth-Ogendo (eds) African Perspectives on Governance, Africa World Press

Inc, Asmara, Eritrea.

7. Douglas S. Anglin (2006) “The African peer review of political governance: precedents,

problematics & prospects,” in Muna Ndulo (ed) Democratic Reform in Africa: Its Impact

on Governance & Poverty Alleviation, James Currey Ltd, Oxford.

8. Ann Seidman & Robert Seidman (2006) “Legal drafting for democratic social change &

Development,” in Muna Ndulo (ed) Democratic Reform in Africa: Its Impact on

Governance & Poverty Alleviation, James Currey Ltd, Oxford.

Recommended further reading

1. Bird, R. M. (1992) Tax Policy & Economic Development, The Johns Hopkins Press,

London.

2. Boreham, G. F. (1971) Contemporary Economic Thinking, Holt, Rinehart & Winston of

20

Canada Ltd, Toronto & Montreal.

3. Devereux, M. P. (ed.) (1996) The Economics of Tax Policy, Oxford University Press,

Oxford.

4. William N. Wamalwa (1995) “Some reflections on the experience of foreign aid,” in

Development Dialogue (1995:2), Dag Hammarskjold Foundation, Uppsala.

5. Olav Stokke (1995) “Development assistance: prospects and priorities,” in Development

Dialogue (1995:2), Dag Hammarskjold Foundation, Uppsala.

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