1 Alemika, E “Protection and realisation of human rights in Africa” in Kalu, A and Yemi, O (eds) Perspectives on Human Rights (1992, Nigeria Institute of International Affairs)Google Scholar 159 at 160.

2 Akokpari, J “Policing and preventing human rights abuses in Africa: The OAU, the AU and the NEPAD peer review” (2004) 32/2International Journal of Legal Information 461 at 461Google Scholar.

3 OAU doc CAB/LEG/67/3, rev 5, 27, adopted in June 1981.

4 See this argument also in Mbondenyi, M “Improving the substance and content of civil and political rights under the African human rights system” (2008) 17/2Lesotho Law JournalGoogle Scholar 39 at 92.

5 Ouguergouz, FThe African Charter on Human and Peoples' Rights: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (2003, Kluwer Law International)Google Scholar at 178.

6 See this position in proposal E/CN.4/21, annex A (secretariat), arts 30 and 31: doc E/CN.4/AC.1/SR.4.

7 GA res 217 (III), adopted on 10 December 1948.

8 See art 44, American Convention on Human Rights, OAS Treaty Series no 36, 1144 UNTS at 123, entered into force 18 July 1978.

9 Arts 25–34, Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS at 222, entered into force 3 September 1953, as amended by protocol nos 3, 5, 8 and 11 which entered into force on 21 September 1970, 20 December 1971, 1 January 1990 and 1 November 1998 respectively.

10 Nzongola-Ntalaja, GThe State and Democracy in Africa (1997, AAPS Books)Google Scholar at 200.

11 Ibid.

12 K Hope “The UNECA and good governance in Africa” (paper presented at the Harvard International Development Conference, Boston Massachusetts, 4–5 April 2003) at 2.

13 Ibid.

14 Ibid.

15 Ouguergouz The African Charter, above at note 5 at 177.

16 Ibid.

17 For a detailed discussion on this, see generally A Mangu “The road to constitutionalism and democracy in Africa: The case of the Democratic Republic of Congo” (LLD thesis, University of South Africa, 2002) at chap 3.

18 See generally, comm 147/95, 149/96, Sir Dawda K Jawara v The Gambia, 13th Annual Activity Report of the Commission (annex V); comm 212/98, Amnesty International v Zambia, 12th Annual Activity Report of the Commission (annex V); comm 211/98, Legal Resources Foundation v Zambia, 14th Annual Activity Report of the Commission (annex V); comm 97/93, John K Modise v Botswana, 14th Annual Activity Report of the Commission (annex X).

19 See generally, Sir Dawda K Jawara v The Gambia, ibid.

20 Comm 102/93, 12th Annual Report of the Commission.

21 Id at para 49.

22 Comm 212/98, above at note 18 at para 46.

23 See comm 97/93, above at note 18 at para 2.

24 Id at para 95.

25 Ibid.

26 Id at para 96.

27 Comm 211/98, Legal Resources Foundation v Zambia, above at note 18 at para 64.

28 Id at para 2.

29 Id at para 3.

30 Id at para 72.

31 See Odinkalu, CA “Back to the future: The imperative of prioritizing for the protection of human rights in Africa” (2003) 47/1Journal of African LawCrossRefGoogle Scholar 1 at 18.

32 Ibid.

33 Comm 212/98, Amnesty International v Zambia, above at note 18 at para 46.

34 Comm 102/93, Constitutional Rights Project v Nigeria, above at note 20 at para 50.

35 Comm 75/92, Katangese Peoples' Congress v Zaire, 8th Annual Activity Report of the Commission (annex VI).

36 Comms 147/95, 149/96, Sir Dawda K Jawara v The Gambia, above at note 18, at para 67.

37 Adopted by the 36th Ordinary Session of the Assembly of Heads of State and Government, 11 July 2000, Lomé, Togo: CAB/LEG/23.15; entered into force 26 May 2001.

38 Id, art 4(p).

39 Id, art 30.

40 Id, art 23(2) partly provides: “any member state that fails to comply with the decisions and policies of the Union may be subjected to other sanctions, such as the denial of transport and communications links with other member states, and other measures of a political and economic nature to be determined by the Assembly”.

41 AHG/Decl.5 (XXXVI), adopted by the 36th Ordinary Session of the Assembly of Heads of State and Government of the Organization of African Unity (OAU).

42 For a more detailed definition of this phrase, see OAU “Report of the Sub-Committee of the central organ on unconstitutional changes in government” (2000) at 25 (v)–(vi).

43 See Singh, C “The republican constitution of Kenya: A historical background and analysis” (1965) 14 International and Comparative Law QuarterlyCrossRefGoogle Scholar 878 at 878.

44 On such arrangements, see generally El-Obaid, A and Appiagyei-Atua, K “Human rights in Africa: A new perspective of linking the past to the present” (1996) 41 McGill Law JournalGoogle Scholar 819 at 821.

45 See generally, M Mbondenyi “The potential of Taita customary law in the promotion and protection of human rights in Kenya” (LLB dissertation, Moi University, 2003).

46 Ibid.

47 Ayittey, GAfrica Betrayed (1992, Amazon)Google Scholar at 81.

48 Nmehielle, VThe African Human Rights System: Its Laws, Practice and Institutions (2001, Martinus Nijhoff Publishers)Google Scholar at 17.

49 Ibid.

50 Munene, A “The bill of rights and constitutional order: A Kenyan perspective” (2002) 2/1African Human Rights Law JournalGoogle Scholar 135 at 137.

51 Ibid.

52 See this observation from Kenya's parliamentary website, available at: <http://www.bunge.go.ke/parliament/history.php> (last accessed 9 March 2009).

53 Ibid.

54 Ibid.

55 Ibid.

56 Munene “The bill of rights”, above at note 50 at 138.

57 Ibid.

58 Kenya's parliamentary website, above at note 52.

59 Singh “The republican constitution of Kenya”, above at note 43 at 892.

60 G Muigai “Constitutional government and human rights in Kenya” (1990) 6 Lesotho Law Journal 112 at 113.

61 Munene “The bill of rights”, above at note 50 at 138.

62 Kenya's parliamentary website, above at note 52.

63 Muigai “Constitutional government”, above at note 60 at 113.

64 Kenya's parliamentary website, above at note 52.

65 Ibid.

66 Munene “The bill of rights”, above at note 50 at 139.

67 Ibid.

68 Muigai “Constitutional government”, above at note 60 at 115.

69 KANU garnered 16 seats in the Legco with 67% of the votes, whereas KADU won 11 seats and 17% of the votes.

70 Kenya's parliamentary website, above at note 52.

71 Ibid.

72 Ibid.

73 Munene “The bill of rights”, above at note 50 at 141.

74 See A Sjögren and P Karlsson “Kenyan politics 1963–2007: A background to the elections”, available at: <http://www.nai.uu.se/articles/sjogren_and_karlsson/background-1/index> (last accessed 13 February 2010).

75 Ibid.

76 Ibid.

77 Ghai, YP “Constitutions and political order in East Africa” (1972) 21 International and Comparative Law QuarterlyCrossRefGoogle Scholar 405 at 410.

78 Muigai “Constitutional government”, above at note 60 at 116.

79 Ibid.

80 The constitution has a Bill of Rights included as chap V and entitled “Protection of fundamental rights and freedoms of the individual”.

81 Munene “The bill of rights”, above at note 50 at 142.

82 Sec 82 of the constitution partly provides: “1. Subject to subsections (4), (5) and (8), no law shall make any provision that is discriminatory either of itself or in its effect; 2. Subject to subsections (6), (8) and (9), no person shall be treated in a discriminatory manner by a person acting by virtue of any written law or in the performance of the functions of a public office or a public authority; 3. In this section, the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description …; 7. Subject to subsection (8), no person shall be treated in a discriminatory manner in respect of access to shops, hotels, lodging-houses, public restaurants, eating houses, beer halls or places of public entertainment or in respect of access to places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public; 8. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of a description mentioned in subsection (3) may be subjected to a restriction on the rights and freedoms guaranteed by sections 76, 78, 79, 80 and 81, being a restriction authorized by section 76 (2), 78 (5), 79 (2), 80 (2), or paragraph (a) or (b) of section 81 (3).”

83 Sec 75 provides, inter alia: “1. No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied - (a) the taking of possession or acquisition is necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utilisation of property so as to promote the public benefit; and (b) the necessity therefor is such as to afford reasonable justification for the causing of hardship that may result to any person having an interest in or right over the property; and (c) provision is made by a law applicable to that taking of possession or acquisition for the prompt payment of full compensation.”

84 Odinkalu “Back to the future”, above at note 31 at 2.

85 See African Peer Review Mechanism “Country review report of the Republic of Kenya”, available at: <http://www.polity.org.za/article.php?a_id=99422> and <http://www.nepad.org/aprm> (last accessed 4 February 2010) at 14.

86 For a similar argument, see generally Hopkins, K “A new human rights era dawns on Africa” (2003) 18 SAPR/PLGoogle Scholar 350.

87 African Peer Review Mechanism “Country Review Report”, above at note 85 at 46. The areas in question were in Central Province, the Rift Valley Highlands and parts of Western Province.

88 Ibid.

89 See “African socialism and its application to planning in Kenya” (sessional paper no 10, Government Printer, 1966).

90 Ibid.

91 African Peer Review Mechanism “Country Review Report”, above at note 85 at 49.

92 Korwa, A and Munyae, I “Human rights abuses in Kenya under Daniel arap Moi 1978–2001” (2001) 5/1African Studies QuarterlyGoogle Scholar, available at: <http://web.africa.ufl.edu/asq/v5/v5i1a1.htm> (last accessed 3 February 2010).

93 Ibid.

94 Sjögren and Karlsson “Kenyan politics”, above at note 74.

95 Ibid.

96 Korwa and Munyae “Human rights abuses in Kenya”, above at note 92.

97 Ibid.

98 Amnesty International “Kenya: Torture, political detention and unfair trials” (1987) AI Index AFR 32/17/87; Amnesty International “Kenya: Torture compounded by the denial of medical care” (1995) AI Index AFR 32/18/95.

99 African Peer Review Mechanism “Country review report” above at note 85 at 49.

100 Korwa and Munyae “Human rights abuses in Kenya”, above at note 92.

101 Sicherman, C “Kenya” (1998) 57/4Race & ClassGoogle Scholar 61 at 63.

102 See National Council of Churches of Kenya “CPK/ARCH: Synod committee report” (April 1992); and A Abuom “The role of Kenyan churches in democratisation” (paper presented at a conference on the Christian churches and Africa's democratisation, Leeds, 1993) cited in Korwa and Munyae “Human rights abuses in Kenya”, above at note 92 at 8.

103 See generally Amnesty International Kenya Annual Report for 1997 (1998)Google Scholar.

104 See the Standard Team “A blot on the talks”, available at: <http://www.korogocho.org/english/index.php?option=com_content&view=article&id=342:a-blot-on-the-talks-standard&catid=35:election-crisis&Itemid=40> (last accessed 2 January 2011).

105 Rothchild, D “Ethnic insecurity, peace agreements and state building” in Joseph, R (ed) State, Conflict and Democracy in Africa (1999)Google Scholar 319 at 320.

106 African Peer Review Mechanism “Country review report”, above at note 85 at 17. This report indicates that the country's GDP fell precipitously from an annual growth rate of 7.5 % in 1971–80 through 4.5% in 1981–90, to a mere 1% in 1997–2002.

107 Ibid.

108 Ibid.

109 See generally UNDP Fourth Human Development Report for Kenya (2005)Google Scholar; and Society for International Development Pulling Apart Facts and Figures on Inequality in Kenya (2004)Google Scholar.

110 African Peer Review Mechanism “Country review report”, above at note 85 at 17.

111 Ibid.

112 See Hope “The UNECA and good governance in Africa”, above at note 12 at 6.

113 See generally G Njuguna “The lie of the land evictions and Kenya's crisis” (African Policy Brief No 2, 2008, Africa Policy Institute).

114 Kenya National Commission on Human Rights “Unjust enrichment” (2004) at 1.

115 Ibid.

116 Id at 146.

117 See generally, Republic of Kenya “Report of the commission of inquiry to the illegal/irregular allocation of public land” (2004) (known as the Ndungu Report).

118 See the Constitution of the Republic of Kenya, adopted in 1963, as amended in 1999.

119 African Peer Review Mechanism “Country review report”, above at 85 at 16.

120 Id at 24.

121 See sec 4 of the Constitution of the Republic of Kenya.

122 Id, secs 15 and 16.

123 Id, sec 14.

124 Id, sec 111.

125 Id, sec 109.

126 Id, sec 61.

127 Id, sec 110.

128 Id, sec 108.

129 Ibid.

130 Id, sec 59.

131 Id, sec 46(2).

132 Id, sec 41.

133 African Peer Review Mechanism “Country review report”, above at note 85 at 50.

134 Id at 24.

135 Ibid.

136 According to estimates, at least 1,000 people were killed and 350,000 internally displaced. See the Standard Team “New dawn as MPs convene”, available at: <http://www.korogocho.org/english/index.php?option=com_content&view=article&id=368:new-dawn-as-mps-convene&catid=35:election-crisis&Itemid=40> (last accessed 2 January 2011).

137 See B Namunane “Annan pleads for grand coalition government”, available at: <http://allafrica.com/stories/200802121155.html> (last accessed 2 January 2011).

138 Human Rights Watch “Ballot to bullet: Organized political violence and Kenya's crisis of governance” (2008) 20/1 (A) at 3.

139 Africa Watch “Divide and rule: State sponsored ethnic violence in Kenya”, available at: <http://hrw.org/reports/1993/kenya1193.pdf> (last accessed 19 March 2010); Human Rights Watch “Playing with fire: Weapons proliferation, political violence and human rights in Kenya”, available at: <http://www.hrw.org/reports/2002/kenya/> (last accessed 19 March 2010). See also “The report of the judicial commission appointed to inquire into the tribal clashes in Kenya” (1999), available at: <http://marskenya.org/pages/stories/Akiwumi_Report/> (last accessed 19 March 2010).

140 The deal was contained in two documents: “The agreement on the principles of coalition government” and “The National Accord and Reconciliation Act 2008”; see the Standard Team “New dawn as MPs convene”, above at note 136.

141 See the Standard Team “It's up to you, Annan tells House members” (13 February 2008) The Standard at 3.

142 Hope “The UNECA and good governance in Africa”, above at note 12 at 8.

143 Ibid.

144 Ibid.