Analysis

When Kenya’s history is written, June 25, 2024 will live in infamy. It will be remembered as the day that an organic GenZ peaceful protest movement against financial austerity imposed by the government of President Ruto was repressed with a violent militarized response. Abductions and disappearances of protesters, internet shutdowns, extrajudicial executions, and threats of shutting down TV Stations signal that President Ruto is ready defend his vastly unpopular and unnecessary financial austerity measures at any cost. Even more, the deployment of the Kenyan Defense Forces in response to legitimate GenZ protests is inconsistent with Article 241 (2) (c) of the 2010 Constitution of Kenya that requires prior approval of the National. The deployment of these forces will only serve to militarily install austerity and to shut down legitimate protests and public debate.

In many African countries, the protection and promotion of human rights is enshrined in national laws including domestic constitutions, policies, and guidelines. Many African countries are signatories to a plethora of conventions on human rights including the African Charter on Human and People’s Rights. However, in several African countries, ordinarily, socio-economic rights are not enforceable because socio-economic rights are not explicitly provided in many national constitutions. Furthermore, right to research as an evolutive and burgeoning framework in the African copyright system adds to this mix. Scholars including Okorie have advocated for the development of the right to research as a complete or explicit defence to copyright infractions or as user rights. However, the development of an explicit right to research in the African copyright context is afflicted with a plethora of obstacles. For example, the COVID-19 pandemic has further restricted access to information and academic materials especially in digital formats and furthermore, many African libraries and institutions are ill-equipped to perform their role of enabling access to information. Hence, this recent book – The Right to Research in Africa: Exploring the Copyright and Human Rights Interface by Desmond Oriakhogba is an important and innovative addition to this debate. Oriakhogba argues for a reconceptualization of the African copyright system from explicit human rights law perspectives as means of localising the right to research in the African context.

In different epochs of our world, the idea of copyright has been thought about and debated by different scholars and philosophers. Most commonly, such debates find resonance in scholarly interlocutory about intellectual property law justificatory theories. On limited occasions, copyright scholarship ventures into studying the jurisprudence of copyright, that is the consciousness and the conscience of the discipline. In his offering, The Right to Research in Africa: Exploring the Copyright and Human Rights Interface, Oriakhogba remarkably studies copyright in the context of Human Rights. From the onset, it is refreshing that Oriakhogba takes the task of engaging copyright outside of the strict positivist and largely mercantilist strictures that often insist on thinking about copyright purely within the ambit of trade. The book’s argument is propounded in five chapters. Following the introduction, the second chapter examines the state of research in Africa, and the challenge that copyright poses to the question of access to information. The third chapter places its focus on international and regional human rights framework. The fourth chapter, which is the focus of this essay, discusses the national constitutions and frameworks for the protection of human rights to ascertain whether they support the development of the right to research. The fifth chapter, which concludes the book, summarily uses the insights from prior chapter’s to substantively respond to the question whether the right to research is justifiable in the context of Africa.

The Right to Research in Africa: Exploring the Interface between Copyright and Human Rights, a book authored by Desmond Oriakhogba, was published by Springer Nature in 2023. The book examined international and regional human rights instruments to which African countries have subscribed, as well as those relevant to the African context, and the national bills of rights and constitutions in Africa with the aim of constructing an explicit right to research in Africa.

With the recent decision by the African Heads of States to adopt the Protocol on Investment to the Agreement Establishing the African Continental Free Trade Area, Dr Dominic Dagbanja’s monograph on The Investment Treaty Regime and Public interest in Africa is a welcome addition to the growing list of monographs on Africa’s foreign investment law regimes. This book which is a based on Dr Dagbanja’s 2015 doctoral dissertation provides an original contribution to existing literature by focusing on the constitutionality of investment treaties. It deals with themes and issues which are critical for understanding Africa’s complex foreign investment protection and promotion laws. Although scholars have examined the linkages between constitutional law and international investment law notably using case studies from Europe and Latin America, this is the first monograph to focus on this issue from an African perspective.

I immensely enjoyed reading Dr. Mbori’s piece in Afronomicslaw titled ‘Hidden in Plain Sight: Kenyan Supreme Court Shooting is own Foot on Merits Review and Appellate Jurisdiction in Continuing Supremacy Battle with the East Africa Court of Justice (EACJ). I now have the pleasure of partially disagreeing with him particularly on whether the EACJ has (merit) review jurisdiction over national laws. This comment is not an attempt at exhaustively analysing the Supreme Court Advisory Opinion in Reference No. E001 of 2022. I found that Advisory Opinion to be surface-level, a bit incoherent and internally inconsistent, and devoid of adequate reasoning. As such, I refrain from commenting on other key issues in the Advisory Opinion. Some of those issues are: how the Court determined that it has jurisdiction to issue the opinion; the relationship between international and municipal law; the Court’s repeated failure to distinguish sources of international law and their interaction with municipal law; the court’s (misplaced) discussion on subsidiarity and margin of appreciation, and the apportionment of interpretation and application functions between the EACJ and domestic courts. Rather, my comment is restricted to the question of whether the EACJ has (merit) review jurisdiction over national laws, which the Supreme Court answered in the negative and which Dr. Mbori answers in the affirmative. I partially disagree with both the Supreme Court and Dr. Mbori, but for different albeit related reasons.

In the early days of investment treaty awards, twenty or so years ago, it was obvious something was badly amiss. With virtually no legal analysis, the Metalclad tribunal found an indirect expropriation against Mexico based on the government’s refusal to authorize a landfill in a historically polluted area. A few years later, foreign asset owners busily sued Argentina for the country’s emergency measures, adopted in the face of a national economic crisis; the arbitrators were unsympathetic to the Argentine lawyers’ argument that it was ‘necessary’ for the country’s government to override the stipulated water rates in contracts with irresponsibly privatized utilities so households could afford drinking and bathing during the crisis and recovery. In CME, a case against the Czech Republic, the tribunal awarded hundreds of millions to a U.S. mogul after reasoning very erratically that the country had violated most of the cryptic investor protections in the invoked treaty. The dispute arose from Czech efforts to regulate broadcasting of cheap American re-runs on a major privatize TV station that was filling the airwaves with profitable muck. A sister tribunal in Lauder, bizarrely hearing a parallel claim by the human owner of the CME company, refused to award any compensation for the same dispute.

Three years ago, at the heart of the COVID-19 pandemic, I wrote an entry in this blog on the Martha Wangari Karua vs. Attorney General of the Republic of Kenya (Martha Karua case) in the East Africa Court of Justice (EACJ) First instance division titled: The EACJ First Instance Court Decides Martha Karua v Republic of Kenya: The Litmus Test for EACJ Jurisdiction and Supremacy. In that case, the First Instance division found that the Respondent State through the actions of its Judiciary (Supreme Court) had violated its commitment to the fundamental and operational principles of the EAC, specifically the principle of the rule of law guaranteed under Article 6(d) and 7(2) of the EAC Treaty. The court had found that Martha Karua’s right to access justice was violated and it issued a historic award for general damages in the sum of $ 25,000 to the applicant at a simple interest rate of 6% per annum. Since then, I contend that there is a supremacy battle between Kenya’s apex municipal court and the EACJ in two specific arenas. The first was Kenya’s appeal of this decision in the EACJ Appellate division which categorically dismissed the appeal with costs to the Appellant in February of 2022. The second venue for this ongoing conflict is in the Supreme Court of Kenya where Kenya’s Attorney General filed a reference for an advisory opinion reference that many observers saw as the aftermath of the Martha Karua case. This is the long awaited advisory opinion judgement that was issued on 31 May 2024 and forms the basis of this piece.

A fundamental premise of The Investment Treaty Regime and Public Interest Regulation in Africa is that national constitutions “are supreme in the hierarchy of legal norms within the domestic context, and governmental actions in Africa, including the making of investment treaties, are governed by these fundamental legal norms.” In this monograph, I addressed, then, the question of the limits that national constitutions and the right of African states to regulate in international law place on the authority of African states in their conclusion of international economic treaties such as investment treaties. I examined four different and fundamental areas of public interest: national judicial systems, the environment, human rights, and development. Based on a constitutional-general international law imperatives analysis, I developed the imperatives theory as a theoretical framework to explain the conflict of legal norms and interests through a critical analysis of the intersections of public law and policy and international investment treaties. The issue addressed by the imperatives theory is whether the fundamental human rights and corresponding obligations of African states towards citizens under African constitutions, international environmental treaties and international human rights treaties do place or should place, limitations on the competence of African states to conclude investment treaties the terms of which constrain the exercise of the states’ public interest regulatory authority.