International Human Rights Law

Question 4.

Kazi is an East African State. In September 2023, its Parliament enacted the Education Privatization Act, a law requiring all education institutions to be privatized and managed by private agencies. This legislation was driven by the fact that the country has defaulted in repaying its public international debt. The Minster of Finance confirmed in June 2023 that the Government was "broke" and, hence, "could not raise funds to manage educational institutions." Prior to the new legislation, education at all levels was free. Pendo and her family live in a poor and remote rural region of the country. Her parents are peasant farmers with no formal income. The entire household survives on food provided by Food For All, an regional relief organization. Pendo is unable to join Grade 1, as any other child of 5 years, because of her parents' meagre resources.

Mwokozi, Pendo's father, is troubled by the new law. If allowed to operate, children like Pendo, will be denied many of their basic rights. He, therefore, decides to seek legal recourse. He approaches Justice Initiatives, a local NGO in which you are undertaking an internship. After a number of meetings, your supervisor requests you to prepare a brief for discussion with the client on various avenues that Mwokozi can take to obtain justice. While focusing on three initiatives, prepare a solid legal brief. (20 Marks)

Question 5

Salim and Sabuni were arrested on 1st January 2024 in a bar in Kilifi as they were ordering drinks on suspicion of engaging in gay activities as well as for allegedly distributing pornographic material. According to Shida, the investigating officer, about 10 compact discs allegedly containing pornographic material were also retrieved from Sabuni's house. These were handed over to agents of the Kenya Films and Classification Board who took possession and 'confiscated' them. An attempt by the police to have the accused persons medically examined at a dispensary was thwarted when they declined to take part in this process. However, there is suspicion by the police that some of the disks contain the accused persons taking part in homosexual activities.

Following the arrest, the accused persons were arraigned on 10th January 2024 before the Chief Magistrates' Court to face several charges. An order compelling the appellants to undergo necessary medical tests was also sought by prosecution. In response, Mr. Mautu, their advocate, argued:

We do not oppose the prosecution's application. However, we hereby present medical records in our possession showing that 1st accused Sabuni is undergoing psychiatric treatment for a mild psycho-social disorder and that the 2nd accused Salim has just turned 18 years today. In fact, the charges herein should be dismissed, and the accused persons set free immediately... . Furthermore we intend to seek and obtain information and access to the alleged films and relevant health records from the Kilifi County Public Hospital.

a) Ms. Mautu has recently hired you in her Law Firm. After discussion, you agree that in order to protect your clients' interest, you must obtain the 10 compact discs, which are alleged to contain pornographic material. Draft a legal letter seeking these records from the Board. (10 Marks)

b) You are a Lawyer and CEO to the Board. Your secretary delivers to you the letter from Matu and Associates LLP. Your discuss it with your legal internal team. They advise you that there are many concerns about complying with the request. According to counsel, there is inadequate legal basis for this request. "Ms. Mautu can take further steps, if she so wishes", they conclude. Against this background, draft an appropriate letter responding to Ms. Mautu's request. (10 Marks)