East African Journal of Law and Ethics

Pre-emptive Use of Force in Self-Defence Under International Law

2025-01-03T13:58:21+02:00

Pre-emptive use of force in self-defence is one of the most controversial areas under International Law. States attack each other even if the attack appears more distant. The Right of self-defence can only be invoked against an armed attack. Pre-emptive use of force allows states to use coercive measures against perceived future threats. This type of self-defence is used by the states prior to an armed attack which is contrary to the UN Charter. The defending states do not follow the requirement of necessity and proportionality when using force. The Research Questions were to what extent Pre-emptive use of force under International Law is legal and to what extent Pre-emptive use of force in self-defence is stipulated under the United Nations Charter. The objectives were to examine if Pre-emptive use of force under International Law is Legal and to examine if Pre-emptive Use of force in self-defence is stipulated under the United Charter. The study findings based on Primary Data have shown that Pre-emptive use of force in self-defence is not legal under the UN Charter 1945. Also, it was found that Pre-emptive use of force in self-defence under international Law is not stipulated anywhere in the United National Charter of 1945. Also, it was found that the UN Charter does not allow states to defend themselves in pre-emption of an armed attack where there is no actual armed attack or imminent threat. The study recommends that Pre-emptive use of force in self-defence could now be appropriate due to advanced technology, like Artificial Intelligence and cyber attacks. Also threats of terrorism and non-state Actors. The UN Charter should be amended to copy modernized warfare

The Application of ICT in Safeguarding the Rights of Suspects during the Police Interview in Tanzania; Law and Practice

2025-01-10T22:29:51+02:00

This paper examines on law and practice of the application of ICT in protecting the rights of suspects during the police interview. The study is conducted with the assumption that the legal framework in Tanzania does not effectively accommodate the application of ICT during police interviews with suspects and thus the police officers do not apply ICT in conducting interviews with suspects. This study makes an in-depth analysis of the role of ICT devices during the police interview in protecting the rights of suspects. The study makes a critical analysis of the existing legal framework, identifies gaps or shortcomings in the said laws and analyses how the same contribute to the problem. The researcher applied doctrinal research methodology and the same was complemented by an empirical research methodology. The researcher collected primary data through a review of various laws, the same was complemented by interviews from sampled respondents. Secondary data were also collected through documentary reviews of books, articles, journal papers, and reports from both physical and online sources

Control and Regulation of Human Trafficking in Nigeria: A Legal Framework Analysis

2025-01-13T16:09:47+02:00

Human trafficking is a pervasive and complex issue affecting millions worldwide. Despite international efforts to combat trafficking, the scourge persists, necessitating a critical examination of the existing legal framework as it relates to Nigeria. This article undertakes a study of Nigeria's legal framework and the various measures adopted by the Nigerian government to curb the menace of human trafficking, with a view to identifying best practices and areas for improvement. This article employs the analytical approach to Nigeria's Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015. The article examines the definition of trafficking, the prosecution and punishment of offenders, the protection of victims, and prevention strategies employed by the Nigerian government. The findings reveal that while Nigeria has made significant strides in combating human trafficking, there are still gaps to be filled with respect to penalties for offenders. Nigeria's legislation, although well-intentioned, is often criticized for its limited scope and inadequate enforcement mechanisms. This article contributes to the existing literature on human trafficking by providing a nuanced understanding of the control measures employed in Nigeria. The article highlights the need for a more coordinated and effective approach to combating human trafficking, emphasizing the importance of international cooperation, capacity building, and community engagement. Ultimately, this article aims to inform policy and legislative reforms, promoting a more robust response to the scourge of human trafficking

Sustainable Development and Sovereign Debt: A Legal Perspective on Debt Sustainability for Africa

2025-02-03T17:14:10+02:00

The World Bank’s 2023 Debt Sustainability Analysis (DSA) puts twelve low-income countries (LICs) in Africa at a high risk of debt distress while six are in debt distress. The recurring unsustainable debt in Sub-Saharan Africa has had a long-standing effect on the pace of development, as measures taken to accommodate debt resolution have often had a counter-effect on economic performance, as investment in development priorities and the social welfare of citizens have often taken a back seat to debt servicing. The United Nations 2030 Sustainable Development Agenda and its implementation Action plans address unsustainable debt as a major obstacle to achieving sustainable development and therefore highlight the importance of supporting poverty eradication by filling the financial gap and encouraging coordinated assistance in developing countries to attain long-term debt sustainability through relief, restructuring, and financing. However, there is a need to clarify the norms underlying sustainability principles and ground them in law to create stronger frameworks for certainty, legitimacy, and effectiveness in their application to Africa’s sovereign debt problems. This research analyses the arguments for a sustainable development approach to improving debt sustainability in Africa, by relating the state responsibilities and obligations within the sustainable development norms in international law and those responsibilities accruing to creditors and sovereign debtors. It analyses these aspects with three emergent norms of international law, sustainable development, shared responsibility, and debt sustainability, and provides a correlation with the socio-economic, environmental, and governance dimensions of sustainable development. The research finds that neglecting the coherence of these aspects in African debt strategies not only increases vulnerability for debt crisis but also prolongs recovery, thereby slowing the progress towards sustainable development.

Effect of Judicial Decisions on Child Rights Protection in Mityana Municipality

2025-03-13T12:17:49+02:00

This study investigates the effect of judicial decisions on child rights protection in Mityana Municipality, Uganda, amidst evolving legal frameworks and persistent systemic challenges. Utilizing a mixed-methods approach, including quantitative surveys and qualitative interviews with key stakeholders, the research examines how judicial outcomes influence the safeguarding of children's rights. Data analysis reveals a strong positive correlation (Pearson correlation coefficient of 0.742) between judicial decisions and the effectiveness of child rights protection. Furthermore, linear regression analysis indicates that approximately 55.1% of the variance in child rights protection can be explained by judicial decisions, with a significant predictor coefficient of 0.637 (p < 0.001). Despite the robust legal framework provided by the Constitution and the Children Act, the study identifies critical gaps in implementation, exacerbated by inadequate training for judicial officers and socio-economic barriers. The findings underscore the necessity for reforms, including the establishment of specialized child rights courts and enhanced stakeholder engagement. This research contributes to the discourse on child rights protection in Uganda, offering actionable insights for policymakers aimed at strengthening judicial processes and fostering an environment where children's rights are prioritized.

Effect of Refugee Influx on the Right to Health of Refugees in Nakivale Settlement Camp in Uganda

2025-03-21T15:41:11+02:00

This study investigates the effect of refugee influx on the right to health of refugees in the Nakivale settlement camp in Uganda. Utilizing a cross-sectional case study design, the research surveyed a sample of 158 refugees from a target population of 260. Data was collected through questionnaires, interviews, focus group discussions, and document reviews. The results indicate that while the refugee influx has positively impacted certain aspects of the healthcare system—such as the construction of new health facilities and the provision of hospital beds—significant challenges remain. Specifically, maternal health and access to essential medicines have suffered, highlighting a negative impact on the overall right to health. The correlation analysis revealed a strong relationship (r = 0.76, p < 0.05) between refugee influx and health outcomes, affirming the hypothesis that refugee influx significantly affects health rights. Furthermore, regression analysis showed that factors related to refugee influx account for 63.5% of the variance in health service delivery. The study underscores the necessity for improved coordination, policy formulation, and resource allocation to enhance refugee health services. Recommendations include integrating health services for refugees and local populations, improving health financing, and promoting continuity of care, particularly for vulnerable groups. Addressing these issues is crucial for ensuring equitable access to health services in the context of growing refugee populations.

Overview of the African Human Rights and Justice System

2025-04-02T19:37:31+02:00

This thesis examines the African Human Rights and Justice System, focusing on the mechanisms established to promote and protect human rights on the continent. It provides a comprehensive overview of the African Charter on Human and Peoples’ Rights (ACHPR), which represents the foundational legal framework for human rights in Africa. The research details the roles of the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights, exploring their functions, challenges, and the impact of their actions on human rights protections. The research methodology was a qualitative analysis of legal documents, case studies, and reports from human rights organizations, this study identifies significant gaps in enforcement mechanisms and the implementation of human rights laws. Moreover, the thesis highlights the historical context of human rights in Africa, emphasizing the effects of colonialism and the need for a concerted effort to eradicate its remnants for genuine human rights realization. The findings suggest that while substantial frameworks exist, effective operationalization remains hindered by political, social, and economic factors. The study concludes with recommendations for strengthening the African Human Rights and Justice System, including enhancing the capacity of the existing institutions, fostering greater accountability, and encouraging civil society participation. This research contributes to the ongoing discourse on human rights in Africa and aims to provide a foundation for future reforms in the regional justice system

A Comparative Study of China’s Bilateral Investment Treaties (BITs) with Selected Eastern African Countries: Gaps, Outdated Frameworks, and Modern Developments

2025-04-09T12:04:22+02:00

It has been a while since Chinese investors established their dominant presence in Africa. Despite this, most Sino-African BITs are often criticised for failing to strike a balance between promoting Chinese investments and protecting public interests. Thus, this research examines the sufficiency of the existing international legal protections available to Chinese investors in Eritrea, Ethiopia and Tanzania. In doing so, it employs a qualitative research method that is primarily dependent on a comparative legal analysis and thus analyses the China-Tanzania and China-Ethiopia BITs by comparing them with each other and with other more recent BITs. At the same time, it makes a thematic analysis, using the manner in which these BITs define “investment” and “investor”, the favourable treatments they offer, the “regulatory space” and indirect expropriation regime they establish, the ISDS mechanisms they provide access to, and their commitment to safeguard public interests as guiding parameters. It also examines the potential adverse impacts of the absence of a BIT between Eritrea and China on their investment relations. The findings reveal that the legal protections available to Chinese investors vary significantly between the selected countries- from nothing in Eritrea to weak in Ethiopia and to relatively robust and comprehensive in Tanzania. The Sino-Ethiopian investment relationship is governed by an old BIT that has many limitations, making the available legal protections weak. In contrast, the Sino-Tanzanian investment relationship operates under a modern BIT designed to strike a balance between attracting Chinese investment and safeguarding Tanzania’s broader public interests, resulting in comprehensive and robust legal protections. Hence, this research recommends the conclusion of a BIT between Eritrea and China, a replacement (renegotiation) of the China-Ethiopia BIT, and a revision of the China-Tanzania BIT so that environmental concerns, human rights issues, and social development notions, including corporate social responsibility, are addressed adequately. It, in particular, calls Eritrea and Ethiopia to draw lessons from the China-Tanzania BIT, and thereby create a legal environment conducive to Chinese investors while at the same time ensuring that their domestic investors are not chocked and the natural environment and other public interests are not jeopardised

Profiling Tort Actions as a Tool to Remedy Environmental Harm in Cameroon

2025-05-06T18:14:08+02:00

Environmental degradation is the prevailing topic in modern discourse. As the trend continues to grow and present a palpable threat to humankind and nature, concerted effort is required to prevent and restore environmental damage as well as compensate victims. Tort law has historically been the principal mechanism for remedying environmental harm through theories such as nuisance, negligence and trespass. Even though the primary objective of tort actions was not directly concerned with improving or preventing environmental conditions, in practice, it remained the exclusive mechanism to resolve certain environmental injuries. The challenges presented by modern complex environmental tort actions necessitated the emergence of regulation. The prevailing idea in mainstream environmental law literature is that ex ante safety regulation is preferable to ex post tort law remedies. Using a doctrinal research methodology, this write-up investigates the role of civil liability in environmental protection, through individual and citizen tort actions. The analysis questions the potential application of tort theories to protect the environment and compensate victims of environmental damage. Findings reveal that tort actions are a necessary catalyst and blend well with regulation to protect the environment, albeit shortcomings.

Digital Policing in Kenya: Opportunities and Challenges

2025-05-08T15:31:40+02:00

The advancement of technology has permeated all facets of life, including policing. This is necessary considering that many human activities and interactions today are facilitated by technology. In that respect, criminals have also leveraged technology to pursue their agendas. This makes it naturally logical for policing to advance in the same direction to curtail criminality perpetrated in the digital space. On one hand, technology helps policing efforts achieve their ends more efficiently, compared to the traditional methods that relied on hardcopy footprints to track criminals and criminality. On the other hand, technology is prone to abuse by law enforcement agencies in terms of breaching privacy and misuse of private data to undertake extra-legal investigations. This discourse delves into the adoption of policing by law enforcement agencies in Kenya in light of the opportunities and challenges presented so far. The paper advocates for strengthening the existing data protection laws and enforcing compliance to realise a transparent and accountable digital policing system, which balances security needs with privacy rights. There is also a need for implementing strict regulations and establishing oversight mechanisms to ensure facial recognition and Artificial Intelligent (AI) tools are deployed responsibly, ethically, and in a manner that upholds fundamental rights and freedoms in law enforcement. Besides, the establishment and implementation of training programs will go a long way in ensuring that law enforcement officers have the requisite skills and knowledge to effectively deploy the digital tools at their disposal. This is imperative for ensuring that they observe the legal mechanisms and protocols for collecting digital evidence and therefore, make it admissible in courts during prosecution. This will also empower them to knowledgeably navigate the legal and ethical pitfalls inherent in the deployment of digital policing tools, and therefore, safeguard the constitutional rights of members of the public

South Sudan: Marital Rape Exemption

2025-05-20T09:03:33+02:00

This paper explores marital rape in South Sudan by delving into the complex history of customary law in South Sudan and how it came about, as well as the precarious legal position that victims of marital rape find themselves in. The research maintains that the marital exemption clause in the laws of South Sudan should be abolished and, in its place, a law that penalizes rape within the institution of marriage should be enacted. The paper makes a significant contribution to the literature because the topic explored is relevant to the discussion of marital rape, not only in South Sudan, but also in other countries where similar problems persist. The paper does so by critically engaging with the issue of marital rape in South Sudan, explores its history, and proposes that changes must be made not only to the way in which the crime is defined but also how its punished. In conclusion the paper implores South Sudan’s decision makers to forge ways to criminalize marital rape but stops short of expressing with precision how the new changes should look like or how it should be done. Purposefully, the paper interrogates whether the validity of this archaic law is sustained by cultural imperative. Methodically, it does so by qualitatively analysing South Sudan’s statutory laws, traditional beliefs and cultures. The research findings conclude that while traditional cultures may have contributed to the repugnancy, its sustenance is the result of complex interplay between political and economic interests central to the governing elites. Finally, the paper maintains that times have changed dramatically and these interests, once viewed as necessary to ensure stability and perpetual governance, have long lost that value, and arguably, are detrimental to a democratic, inclusive state

Algorithms as Judges: Constitutional Limits to Automated Decision-Making in Public Administration

2025-05-26T12:14:01+02:00

The increasing use of automated decision-making systems in public administration raises fundamental questions of constitutional law. This paper analyses the legal framework and the constitutional limits of such systems in Germany. The focus is on the provisions of the German Basic Law, in particular Article 20(3) (the administration is bound by law), Article 19(4) (guarantee of legal protection) and the fundamental rights in Articles 1, 2 and 3. Particular attention is paid to Section 35a of the Administrative Procedure Act (VwVfG), which enables fully automated administrative acts. Based on a constitutional dogmatic analysis, taking into account case law, administrative practice and international developments, the study identifies key legal challenges - particularly with regard to transparency, discrimination risks and accountability. The results show that the existing legal framework does not provide sufficient guidelines for the use of complex, learning-based systems, especially where decision-making logic is no longer comprehensible ("black box" problem). Specific reform proposals are being developed to close these regulatory gaps, including binding documentation obligations, human control bodies and a revision of Section 35a VwVfG in line with the planned EU AI Act. The aim is to safeguard the digital transformation in the administration in accordance with the rule of law and to strengthen trust through transparency and legal certainty.

The Principle of Presumption of Innocence: A Human Rights-Based Assessment of the Laws and Practice in Tanzania

2025-07-07T15:38:13+02:00

The presumption of innocence is a cornerstone of criminal justice and a fundamental human right enshrined in Article 13(6)(b) of the Constitution of the United Republic of Tanzania, 1977. It mandates that an accused person shall be deemed innocent until proven guilty by a competent court. This paper provides a human rights-based assessment of the legal framework and practical application of this principle in Tanzania. It argues on the historical and legal foundations of the presumption of innocence, its recognition in both domestic and international instruments, and critically analyses how Tanzanian laws and judicial practices often contradict the principle through denial of bail, prolonged pre-trial detention, and mistreatment of remandees. The study reveals that such practices lead to human rights violations, including loss of liberty, psychological trauma, economic hardship, prison overcrowding, and public mistrust in the justice system. Using key case examples and reports, the paper highlights the socio-economic and legal consequences of undermining this right. It concludes by recommending reforms such as amending bail laws, reducing pre-trial detention periods, and improving prison conditions to ensure compliance with international human rights standards and promote access to justice and fairness in the criminal justice system of Tanzania

The Compellability for Attendance of a Child through the Instrumentality of Subpoena in Civil Trials

2025-07-09T21:53:40+02:00

A trial is one of the mechanisms set in place for the settlement of disputes and the attainment of justice in society. Trials are conducted on the strength of the evidence of the witnesses adduced through their testimonies. Witnesses can attend the trial voluntarily or under compulsion. This work ventures into the compulsory attendance of child witnesses at trial through the mechanism of subpoena. This work briefly considered the types of subpoena known as subpoena ad testificandum, subpoena duces tecum, and subpoena ad testificandum et duces tecum. The problem with this research is that the requirement of a sufficient intelligence test as required by law has been held that it must not be reduced to the record of the court. This makes it difficult to ascertain whether the stipulation of the law has been complied with or not. It is the aim of this paper to proffer pragmatic suggestions for better administration of justice. This work finds that there is a lack of uniformity in age and a lack of recording sufficient intelligence test questions by the court. Doctrinal methodology was adopted in this research work. It is recommended herein on what constitutes the age of a child and the need for uniformity of age; that sufficient intelligent test questions should be recorded and form part of the record of proceedings

Reconsidering the Definition of Genocide: The Case for Including Political Groups in International Criminal Law

2025-07-22T19:18:01+02:00

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) represents a foundational legal instrument in international criminal law. While it identifies national, ethnic, racial, and religious groups as protected categories, it expressly omits political groups. This exclusion has created a significant gap in the legal construction of the prevention of mass killings. This article argues that the omission of political groups is no longer defensible given the evolving nature of identity-based violence. Drawing on comparative legal analysis, historical precedent, and current international jurisprudence, this article explores the implications of the exclusion and presents a legal rationale for reform. It argues that either political group should be explicitly incorporated into the definition of genocide through formal amendment, or that a more expansive interpretation of group-based targeting should be adopted by international courts. In the interim, enhanced reliance on crimes against humanity under the Rome Statute may provide partial redress. The article concludes with a call for international consensus to close this gap and proposes avenues for legal and policy reform

Separation of Child Prisoners from Adult Inmates in Mainland Tanzania Prisons: A Human Rights Perspective

2025-07-23T20:49:51+02:00

The continued practice of detaining children alongside adult inmates in places of detention in Mainland Tanzania presents a grave human rights concern. Despite Tanzania’s ratification of key international instruments such as the Convention on the Rights of the Child (1989) and domestic efforts through legislation like the Law of the Child Act, [CAP 13 R.E 2019], children are frequently held in adult correctional facilities. This paper examines the historical and systemic roots of this practice as well as the legal frameworks that govern the separation of child offenders. It analyses various human rights violations associated with this practice, including physical abuse, deprivation of education, and psychological trauma. It also identifies institutional and legal challenges, such as the lack of juvenile facilities, definitional inconsistencies across various laws, and insufficient training of law enforcement officers. Drawing on reports from the Commission for Human Rights and Good Governance and international standards like the Beijing and Mandela Rules, the study recommends comprehensive reforms, including legal amendments, infrastructure investment, and the promotion of alternative sentencing for juveniles. In conducting this study, both Doctrinal and Non-Doctrinal (Socio-Legal) Research approaches were employed. Under doctrinal research, the study relied on statutes, international treaties and Conventions, while under non-doctrinal research, the author conducted interviews with stakeholders mainly from within the prison authorities and observations on prison infrastructures to explore the challenges facing the separation process. This combination ensures a comprehensive analysis of the legal framework while incorporating real-life experiences and practical challenges facing the total separation of children from adults in Mainland Tanzanian prisons. The paper concludes that the separation of children from adult inmates in prisons, is both a legal imperative and a foundational step toward rehabilitative justice and child rights protection in Tanzania. It finally provides various recommendations to address the issue of separation within prison premises.

The Right to Bail as a Human Right: Analysing Its Protection Under Mainland Tanzanian Laws and Practices

2025-07-31T16:40:43+02:00

This study explores the right to bail in Mainland Tanzania as a fundamental human right embedded in both domestic and international legal frameworks. It examines the constitutional foundation of bail, primarily under Articles 13(6)(b) and 15 of the Constitution of the United Republic of Tanzania, which guarantee the presumption of innocence and personal liberty. The research highlights the statutory provisions of the Criminal Procedure Act [Cap 20 R.E 2023], especially Section 151, which categorises offences into bailable and non-bailable, and identifies restrictive conditions that often conflict with constitutional guarantees. Through analysis of landmark case law and scholarly commentary, the paper critiques the discretionary and often inconsistent application of bail by law enforcement and the judiciary. It reveals that pre-trial detention is frequently overused, leading to prison overcrowding and the infringement of individual rights. The study highlights the need for legal reforms to align bail laws with constitutional mandates and international human rights standards, advocating for a clearer recognition of bail as a right rather than a privilege. It concludes by recommending constitutional and legislative amendments to ensure fair and equitable access to bail for all accused persons in Tanzania

Rights of Civilian Population When Counter-Terrorism during the Armed Conflict on War in Gaza

2025-08-04T20:43:03+02:00

This paper discusses the protection of the civilian population during armed conflict as a cornerstone of International Humanitarian Law, which provides a robust framework within which civilians are protected. The Geneva Convention of August 1949 and its Additional Protocols provide for the protection of the direct environment and property, also known as civilian objects. The nature of the protection accorded to civilians under International Humanitarian Law is seen through two main lenses. Firstly, this paper focuses on the implementation by the State parties to the Geneva Convention of August 1949 and its additional protocols, likewise the enforcement of the same by the State members. Nevertheless, this paper also speaks on whether the ongoing armed conflict between Israel forces and the Hamas military group adhere to the International Humanitarian law specifically the protection of Civilian population and what might be the major problem of not adhering to the Convention. Secondly, the finding of this paper depend on the Doctrinal and non-doctrinal as the method of data collection by analysing the law specifically the Geneva Convention of August 1949 and its additional protocol and statistics from different online sources including reports from websites. Finally, in the conclusion, this paper addresses the solution to the fundamental guarantees. Among other safeguards, everyone in the power of a party to a conflict is entitled to humane treatment without adverse distinction based on such criteria as race, colour, sex, language, religion, national origin or social status

Evaluating the Adversarial System in Tanzania Mainland: A Human Rights and Access to Justice Perspective

2025-08-06T17:41:29+02:00

The adversarial system underpins Tanzania's legal framework, particularly in criminal trials as established under Section 209 (2), 66 (a)(ii), 198 of The Criminal Procedure Act. While designed to ensure fairness through party-driven litigation, it often fails to uphold human rights, especially for indigent and uneducated defendants. This study employs a mixed methodological approach, integrating doctrinal legal research with comparative legal analysis, grounded in Cappelletti and Garth's access to justice theoretical framework. This article critically evaluates the adversarial system's impact on the right to a fair trial, access to justice, and protection against self-incrimination in the Tanzania Mainland. Drawing on Tanzanian statutes, case law, and international human rights standards, through systematic examination of primary legal sources and comparative analysis with Germany's inquisitorial system, it identifies challenges such as limited legal representation, judicial delays, and aggressive cross-examination. Proposing a hybrid system integrating adversarial and inquisitorial elements, the article advocates for reforms to enhance judicial oversight, expand legal aid, and relaxed-evidence rules. A comparative analysis with Germany's hybrid model strengthens the case for reform, ensuring Tanzania's justice system aligns with human rights principles and promotes equitable access to justice