Research Seminar: The Search for a Resilient Legal State in Kenya - Challenges of Law, Custom, Politics and Violence

CRIC Research Seminar: The Search for a Resilient Legal State in Kenya - Challenges of Law, Custom, Politics and Violence

CRIC has the pleasure of inviting you to a seminar on The Search for a Resilient Legal State in Kenya - Challenges of Law, Custom, Politics and Violence with Fergus Kerrigan, June 27th 2016.

Readings and registration

The readings will be distributed prior to the seminar. If you wish to attend, please respond to this calendar invite or contact


The thesis will examine the operation of three bodies of law in the quest for a resilient and transformative legal and constitutional order in Kenya. The bodies of law examined are Kenyan constitutional and administrative law, Kenyan customary / neo-customary law and international human rights law. These bodies of law and the institutions responsible for administering them are examined in regard to their “adaptive fitness in addressing challenges of corruption and occasionally violent and destabilising ethnicised politics.

A common thread running through the examination is a theoretical framework that situates “rule of law” in postcolonial contexts in general and the Kenyan situation in particular. This anchors rule of law in the institutionalized reduction of arbitrariness, relating this to the struggle against impunity. This framework has distinct commonalities with republican political theory with the understanding of freedom as non-domination. The thesis will examine whether this understanding of freedom provides a framework for addressing some of the key challenges facing the state in developing countries, including:

(a) the challenge of plural normative and legal orders and the ensuing conflicts between different bodies of law and

(b) the challenge posed bv “neopatrimonial” social, economic and political orders and their tendency to perpetuate relations of clientelism behind a façade of rational legality.

Abstract / thesis statement as regards state-building

The thesis is partly based on the examination of an underlying tension between human rights on one hand and the challenges of power and legitimacy in state-building on the other. That international human rights law and doctrine does not directly address these institutional issues is not surprising. Both the traditional view of civil and political rights as negative constraints on state power and what used to be called “second generation” economic and social rights tend to assume the existence of a state that fulfils the Weberian criterion of a monopoly on violence, a Kelsenian assumption of legal centralism, and legitimacy gained through the provision of public goods. These assumptions are further reinforced by the importance accorded to recognition as a criterion of statehood and comity in international relations and public international law of which the international law of human rights is a part.

Human rights law has struggled to respond to contexts in which many of the most important causes of violence and insecurity in developing countries lie outside or in a peripheral grey area around the state. This is reflected in several ways. Initially, human rights law did not include acts committed by non-state actors as human rights violations. Although this has been partly addressed through notions of horizontal liability, substantial grey areas remain. Firstly, the phenomena of informal repression and “deniable” acts committed by groups with shadowy links to state security organs and political power holders is a familiar theme to those working with human rights and humanitarian law, as well as peace workers.

Secondly, the construction of a legal relationship between rights holders and duty bearers that remains primarily founded on a notion of citizenship can obscure the nature of the relationship that exists between the powerful and the subaltern.

Here, the public good of a category of citizenship that is more or less assumed by human rights law may actually be the main object of struggle for activists and reformers.

Thirdly, there is an important challenge in regard to the nature of the state as a responsive, law-based body that provides public goods and the actual genealogy of states in the post-colonial world. One recognizable “governance” feature of the declaration is its exhortation for human rights to be protected by the rule of law in order to avoid the need to rebel against tyranny and oppression. The requirement of the Universal Declaration of Human Rights that human rights be protected by the rule of law may obscure the many problematic dimensions related to the legitimacy of state law in developing countries. A highly formalistic approach to law by state authorities and the weak legitimacy of states and governments that resort to authoritarian tactics to retain power make it difficult to equate respect for a body of law that often has foreign origins with a democratic understanding of the rule of law that is found in international human rights doctrine and thinking.

Some of these issues are apparent in a reading of the preamble of the Universal Declaration of Human Rights, which gives great weight to recognition, dignity and equality, in words that recall natural law understandings, but says rather little about the political structures and institutions that are supposed to protect rights.

About research seminars at CRIC

The research seminar is a forum for academic debate, organized around the paper, and is conducted on the assumption that the paper has been read by participants.