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Review: Journal of Conflict Management and Sustainable Development, Vol. 7 Issue 2

In this issue of the Journal, Dr. Kariuki Muigua has managed to serve a variegated offering of the most recent and outstanding research by leading scholars, practitioners and students in conflict management, dispute resolution and sustainable development.

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The Journal of Conflict Management and Sustainable Development, one of the most consistent and enduring peer-reviewed scholarly journals in East Africa, has published its second issue of the seventh (Vol. 7, Issue 2). Edited by Dr. Kariuki Muigua, one of Africa’s foremost experts in dispute resolution and environmental law scholars and a prolific writer and researcher in the areas, the Journal of Conflict Management and Sustainable Development plays host to research and academic writing that explores the linkages between conflict management, natural resources conflicts and management, environmental conservation and management, environmental justice and dispute resolution and sustainable development.

The Journal is now widely accepted as one of the most authoritative and credible publications on Conflict Management and Sustainable Development and valuable resource for scholars, authors, readers, students, policy makers and public in general across Africa and beyond. This Issue of the Journal offers readers unparalleled opportunity to interact with pertinent and emerging themes on Conflict Management and Sustainable Development and other related issues. Some of the themes explored include the nexus between conflict management and environment, indigenous knowledge and sustainable development, place of ADR in intergovernmental dispute resolution, environmental rights as human rights, non-international armed conflicts (NIACs) and professional ethics.

In the opening article “Exploring Conflict Management and the Environment: The Kenyan Journey” by Dr. Kariuki Muigua argues that conflict management and environmental matters are not linear subjects and should be treated as such as they impact on every sphere of the human life. The article traces the jurisprudential development of these themes within the Kenyan framework to show how far Kenya has come as a country in guaranteeing environmental rights.  It calls on stakeholders in the justice sector and environmental management to reflect on the successes, challenges and the future prospects in ensuring that every Kenyan will access justice and a right to clean and healthy environment.

In the article, “Professional Ethics: An Advocate’s Relationship with other Advocates”, Prof. Tom Ojienda, SC, one of Kenya’s foremost litigation advocates and Former President of Law Society Kenya, addresses the duties an advocate owes other advocates in the context of their professional relationship. He dissects the legal framework on the relationship between advocates as embodied in provisions of the law that pertain to the relations between advocates, particularly the Advocates Act, and relevant subsidiary legislation made thereunder, the Law Society of Kenya Act, 2014 (LSK Act, 2014), and the relevant subsidiary legislation made thereunder, and the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct (2017).

Berita Mutinda Musau, a Doctoral Fellow in the School of Humanities and Social Sciences, Strathmore University, in “Implementing International Humanitarian Law and the Responsibility to Protect in Non-International Armed Conflicts (NIACs) – A Delicate Balance: The Case of the Tigray Crisis in Ethiopia,” examines the link between International Humanitarian Law (IHL) and the principle of the Responsibility to Protect. It looks at the interplay between the two in the context of the ability of the Ethiopian government to respect and implement IHL while executing its responsibility to protect its citizens in the Tigray region. She demonstrates that the Ethiopian government has violated IHL and absconded its responsibility to protect its citizens in Tigray.

In the article, “Revisiting the Place of Indigenous Knowledge in the Sustainable Development Agenda in Kenya,” Dr. Kariuki Muigua, who has sop far authored one of the vast array of articles and books on environmental law, conflict management, dispute resolution and sustainable development, delves into the place of indigenous knowledge not only the management of environmental and natural resources but also in realization of the sustainable development agenda. He argues this approach is necessary ensure active and meaningful participation of communities through enhanced access to information and public participation instead of the command and control approach where only state organs have the lead role in the management of the environment and natural resources overlooking indigenous knowledge.

Oseko Louis Denzel Obure & Kihiko Rosemary Wambui, both undergraduate students at the University of Nairobi School of Law, in “Intergovernmental Dispute Resolution: Analysing the Application and Future of ADR,” make the case for ADR as the appropriate mechanism for resolving intergovernmental disputes as it protects the relationship existing between these codependent levels of government which must work through consultation and cooperation. Through an analysis of the place of ADR in the resolution of intergovernmental disputes, the paper also highlights the gaps that must be filled to improve the efficiency of ADR in intergovernmental dispute resolution (IGDR).

In “Enhancing Recognition of Environmental Rights as Human Rights for Sustainable Development,” LL.M student Doreen Olembo explores the trend of the recognition of environmental human rights under the ambit of environmental justice. She argues that the recognition environmental rights as human rights is core to the safeguarding of sanctity of life in its natural and bio-diverse forms since man coexists with other living and non-living organisms which form part of the environment. According to her, since clean and healthy environment impacts the quality of right to life, environmental rights are part and parcel of the major categories of human rights as they impact their enjoyment.

Leah Aoko, an LL.M Student at University of Nairobi, Advocate and UNITAR Scholar, in “Burden-sharing as a Tool to alleviate the Global Plight of Refugees,” examines the plight of refugees in the absence of a workable implementation mechanism on burden sharing as an easement tool for developing countries. She argues that this core concept is conspicuously missing in many key legal frameworks on refugees and should be thus included for proper implementation. She analyses the International and Regional Framework on Burden sharing and distills recommendations on how burden sharing can be implemented in order to alleviate economically burdened states.

Dr. Kariuki Muigua has managed to serve a variegated offering of the most recent and outstanding research by leading scholars, practitioners and students in conflict management, dispute resolution and sustainable development. By featuring established scholars and practitioners including himself and Prof. Tom Ojienda, Doctoral fellow and social scientist Berita Mutinda Musau and Masters Students Doreen Alembo and Leah Aoko as well as undergraduate students Oseko Louis Denzel Obure and Kihiko Rosemary Wambui, he ensures the Journal lives up to its reputation of giving young and emerging scholars the rare opportunity of publishing alongside leading scholars while maintaining the highest quality of scholarship through peer review and rigorous editorial scrutiny overseen by Dr. Kariuki Muigua himself and his team of Editors and Editorial Board.

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Opinion

HakiJamii and NYU’s CHRGJ Study Finds Healthcare Privatization is Undermining Access to Care in Kenya

The 49-page report, “Wrong Prescription: The Impact of Privatizing Healthcare in Kenya,” authored by Hakijamii and the Center for Human Rights and Global Justice at New York University (CHRGJ) finds that privatization is costly for individuals and the government, has shut people out of access to healthcare, and is undermining the right to health in Kenya

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Dr Nicholas Orago, HakiJamii Executive Director, Co-Author of the Report and Lecturer at the University of Nairobi

Government-backed expansion of the private healthcare sector in Kenya is leading to exclusion and setting back the goal of universal health coverage, said two rights groups in a report released today. National policies intended to increase private sector participation in healthcare, alongside chronic underinvestment in the public system, have contributed to an explosion of for-profit private actors who often provide poor value for money, neglect public health priorities, and push Kenyans into poverty and crushing debt.

The 49-page report, “Wrong Prescription: The Impact of Privatizing Healthcare in Kenya,” is authored by Hakijamii and the Center for Human Rights and Global Justice at New York University (CHRGJ). It finds that privatization has proven costly for individuals and the government, has shut people out of access to healthcare, and is undermining the right to health. The government’s signature policy for achieving universal health coverage—the planned expansion of private-sector friendly social insurance through the National Hospital Insurance Fund (NHIF)—risks exacerbating these problems.

“Privatization is the wrong prescription for achieving universal health coverage,” said Philip Alston, former United Nations Special Rapporteur and co-author of the report. “Proponents of private healthcare make all sorts of promises about how it will lower costs and improve access, but our research finds private actors have really failed to deliver.”

“Promoters of private care have gravely misdiagnosed the situation,” added Nicholas Orago, Executive Director of Hakijamii and co-author of the report. “While many associate private care with high-quality facilities, the ‘haves’ and ‘have nots’ experience entirely different private sectors. Private healthcare has been disastrous for poor and vulnerable communities, who are left with low-quality, low-cost providers pedaling services that are too often unsafe or even illegal.”

Privatizing care has proven costly for both individuals and the government. The private health sector relies heavily on government funding, including tens of billions of shillings each year to contract with private facilities, subsidize access to private care, and pay for secretive public-private partnerships. Individuals face excessively high fees at private facilities, where treatment can cost in excess of twelve times more than the public sector.

“Healthcare is a big business, with global corporations and private equity firms lining up to profit off the sector in Kenya,” said Rebecca Riddell, Co-director of the Human Rights and Privatization Project at CHRGJ and co-author of the report. “These companies expect returns on their investments, leading to overwhelmingly higher prices in the private sector while scarce public resources prop up private profits.”

The report draws from more than 180 interviews with healthcare users and providers, government officials, and experts. Researchers spoke with community members from informal settlements in Mombasa and Nairobi as well as rural areas in Isiolo. Many described being excluded from private care or facing hardships to afford treatment, such as selling important assets like land or forgoing educational and livelihood opportunities. Others described tragic consequences of low-quality care at private providers, including unnecessary deaths and disabilities. The impact has been particularly severe for people who are poor or low income, women, people with disabilities, and those in rural areas.

Researchers also found that the private sector in Kenya is concentrated in more profitable forms of care, and has neglected less commercially viable areas, patients, and services. Private sector healthcare workers described having to meet patient “targets” as well as working in conditions significantly inferior to those in the public sector.

“The disconnect between profits and public health goals should cause policymakers to rethink their reliance on the private sector,” said Bassam Khawaja, Co-director of the Human Rights and Privatization Project and report co-author. “Many essential health services are incredibly valuable or even lifesaving but may not be profitable as one-off transactions.”

The anticipated nationwide rollout of mandatory NHIF coverage will divert more public money to private actors without preventing exclusion and high costs. Though the NHIF is a public insurer, it contracts extensively with private facilities, offers private providers higher reimbursement rates, and sends most of its claims money to private actors. “Expanding coverage through the NHIF instead of investing in a strong public health system is a major step backwards,” Orago said.

Much of the pressure to privatize has come from external actors in the global North. Key development actors have urged Kenya to increase the private sector’s role in health, including international financial institutions, private foundations, and wealthy countries looking for new markets.

“An ideological commitment to the private sector has trumped the rights of the Kenyan people, as development actors promote private care and financing without accountability,” Alston said. “The extreme secrecy around many arrangements with the private health sector opens the door to corruption and self-dealing.”

The report concludes that the government should rethink its support for the private sector and prioritize the public healthcare system, which still delivers the majority of inpatient and outpatient care in Kenya despite being starved of resources.

“While the government should address serious shortcomings in the public system, popular recent investments illustrate an enduring appetite for public care,” said Alston. “With sufficient political will and resources, the public healthcare system is best positioned to provide all Kenyans with the accessible, affordable, and quality healthcare that they have a right to,” said Orago.

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Opinion

Why Kapseret MP Hon Oscar Sudi is the De Facto North Rift Spokesman

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Firebrand Kapseret MP Hon Oscar Sudi addresses Wananchi at a past event, he is recognized as De Facto North Rift Spokesman

While others like National Assembly Speaker Justin Muturi are struggling to be recognized as their Region’s spokesmen, Kapseret MP Hon Oscar Sudi is the de facto North Rift Region Spokesman. It owes partly to his courage in speaking truth to power and part to his ability to connect with the region’s population and especially the youth for his forthright and prolific take on National issues. Today, even National Media is always on standby to broadcast Hon Oscar Sudi’s take on issues of the day.

Indeed, many analysts acknowledge that in future it will be a subject of advanced study how Hon Oscar Sudi has managed to turn Social Media into a powerful tool of communication especially given that most of his audience are rural-based folk. Remarkable is how Hon Oscar Sudi manages to capture his audience’s attention through controversial yet heart felt takes on issues of national importance in ways that have won him hundreds of thousands of fans across the country.

But even beyond Social Media, Hon OScar Sudi has become the envoy of choice for Deputy President and in many instances he is seen taking on hard assignments to further his agenda. Most leaders from across the Country who visit North Rift region do not feel like they have arrived until they have met with Hon Oscar Sudi who is always a ready host for delegations at his home. Recent, Hon Oscar Sudi scored a hat trick when he secured the defection of Kabarnet Ward MCA Hon Ernest Kibet who defected from KANU to join MCA.

But this is just one of many covert missions Hon Oscar Sudi has executed behind the scenes in support of Deputy President’s Presidential bid for 2022. A man of his words who is known for his consistency and charitable deeds, Hon Oscar Sudi enjoys the reputation of “Mr. Fix It” like Hon Mark Too within the Hustler Nation fraternity. Interestingly, he prefers to avoid limelight unlike other leaders from North Rift region preferring to give Deputy President space to enjoy the company of leaders from other regions.

At his Kapseret Constituency, many constituents are full of praises of Hon Oscar Sudi’s performance in the management of the NG-CDF funds and the magnitude of the projects he has managed to undertake and commission in the area. It is rare for an MP to have near universal positive rating but Hon Oscar Sudi can boast of that and more. There is no question whatever post Hon. Oscar Sudi decides to go for going into 2022, he shall not even need to campaign for it as he is more than guaranteed a landslide win at the ballot if he doesn’t manage to run unopposed for the seat.

Kapseret MP Hon Oscar Sudi confers with Deputy President William Samoei Ruto during a past event

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Opinion

Lawyer Mbaluka: Why I Will Sell Machakos White House if Elected Governor

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By Joel Kyatha Mbaluka, Advocate, Machakos County Gubernatorial Aspirant for 2022

I am of the considered view that the so-called Machakos White House should not exist and the money that was wasted on it should have been put to better use. While Machakos Residents are suffering in dire need for basic services and unable to meet the most basic of needs, it is an abomination to live in such an ivory tower.  I shudder with revulsion of every getting associated with “Machakos White House” tag, have never mentioned anywhere in my various addresses to Machakos residents whether in strategy meetings, any public gatherings or on any social media post from any of my handles.

I do not wish to be in any way associated with “Machakos White House” and if elected as the Manager in charge of Machakos County resources {Governor} I will not use it, I will sell that useless structure of no benefit to Machakos Residents to investors to put up a factory there and employ our jobless youths. Machakos White House is the epitome of Corruption in our Machakos County Government and Machakos lost over 600M in it with over 400m going as kickbacks to the man from Makueni County and the Woman from Githunguri collecting and sharing with their master who is now constantly postponing prosecution to account. Ignore the presentation to the auditors that it only cost 350m.

The Machakos White House which Lawyer Joel Kyatha Mbaluka has pledged to sell off if elected Machakos Governor

Those in the know should remember and not forget that when our Machakos business people manage to painstakingly part with kickback to those 2 who have been running our County affairs and secure a tender, they most likely don’t get paid. We have a record of several families in our midst who have lost breadwinners through stress related complications after their businesses collapsed or they were auctioned and devastated upon failure to get paid. However, contractors from Makueni and Kiambu County get paid their inflated invoices within days of presentation as families of Machakos business people gnash their teeth and shed tears for their loved ones.

This is one of the serious messes afflicting our Machakos County Government which I need to address in my first 90 days in office to ensure there is transparency in our County Government’s Procurement Processes and recruitment processes and guarantee the county residents get value for our hard-earned tax money. We do not need the so-called Machakos White House, it is of no benefit to struggling majority of Machakos residents who have more pressing needs and better priorities. It was made to impress Delilah, let it follow Delilah we have better priorities and plans for Machakos residents.

With my team we shall work from humble offices within Machakos County Government Office precincts where we can manage and oversee operations of the County instead of operating in isolation. To be sure, if elected Governor, I shall put up for sell that useless magnificent structure and invest the money in our bad roads, to stock our hospitals with drugs, improve access to clean water and stock our schools and TVET Colleges. A Governor does not need a big office to deliver on his job, rather s/he should move from one sub-county to the next inspecting county projects and ensuring the people are getting value for their money.

I do not wish my name to be in anyway associated with Machakos White House. I am not running for this seat because I want to sit in any White House, I want to work for Machakos People. I will not find any time to sit and idle in a big office where contractors and county workers can call to be told where I am and relax. I believe a Good Governor who wants to help Machakos Residents has to move around inspecting county facilities and projects to Machakos Resources are put to good use for the benefit of all Machakos residents. It is time we save our County resources from these cartels and thugs from the other counties.

 

JOEL KYATHA MBALUKA, LLM, LLB, CPS, DIL, ADVOCATE

Gubernatorial Aspirant 2022,

The Machakos People Project (MPP),

MACHAKOS COUNTY

24th August, 2021.

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