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Mar 5, 2014

Dr Franceschi's Book Presentation and Farewell to Prof. Christian Roschmann

Strathmore Law School’s momentum since its launch on 28th April 2012 is unrelenting.

 

This year started on an equally high note with the presentation of yet another book published by Cambridge Scholars Publishing. 'The African Human Rights Judicial System' is a book by the Dean of SLS, Dr, Luis Franceschi.

 

The book presentation was done at the farewell Cocktail Reception to Prof. Christian Rosschmann, former director of the Rule of Law Programme at the Konrad Adenauer Stiftung (KAS) in Kenya. KAS has been a true friend to Strathmore Law School and supported the research undertaken in writing the book.

 

The colourful event took place on 7th February at the university's auditorium. It was studded with established legal scholars and practitioners in the country including Justice J.B Ojwang, Judge of the Supreme Court of Kenya, Senator Amos Wako, former Attorney General, Prof. PLO Lumumba who gave a review of the book, Samuel Kimeu-Transparency International Country Director, and more than 200 guests.

 

Prof. PLO Lumumba gave the book’s preview as follows:

 

“My duty is very simple, is to give a cameo preview of what the book says.  I have gone through the book very quickly and I think there is a sense in which if you read the forward by Prof. J B Ojwang he captures the essence of the book.

 

If you turn at the back, I was amazed and said to myself that Prof. Ojwang was possessed as he wrote the forward. He starts by saying that the Dean Franceschi weaves a very sensitive yarn and creates new platforms for international public law and tests them against the constitution and he doesn’t stop there. He says that, he achieves that by looking at the regime of human rights, he looks at issues of foreign affairs and looks at the adjudicatory issues and he says that he does a good job, and I agree!

 

When you take time to read the book you will discover that the book is divided into 5 clear chapters. Commencing as it does with an introduction, which is agenda setting. What Luis does is to identify the essence of what he wants to achieve.

 

Once again Prof. Ojwang is quit brisk in saying that this work must necessarily be focused. What he is trying to achieve is to ask the critical question “what is the status of human rights instruments vis-a-vis the constitution?” and he brings in the question of the status of their relationship in the arena of foreign affairs.

 

In Chapter One, Luis does a very useful thing. He asks himself what is the relationship between the constitution and international human rights. He poses a number of questions and I am happy and know Prof.Ojwang will be happy to know. He looks at Professor Ojwang’s PHD thesis written in 1980’s which is a comparative study between the state of the executive in Kenya and Court D'Ivoire.

 

Prof.Ojwang thesis in that particular work was, that there is an arena of exercise of executive power which sometimes cannot be strictly defined and Luis then poses the question .When u read the work you will see that he refers to the of Niccolò Machiavelli, ‘The Prince’ and he identifies what Niccolò said when he wrote “The Prince”. That the exercise of executive power is the exclusive domain of the executive but he does not stop there, he then says that the person who captures the essence of executive power is John Locke, because it is John Locke who introduces the concept of separation of powers, and correctly identifies the fact that the conduct of foreign affairs cannot be the exclusive domain of the executive because the Legislature does play a part and of course the Judiciary does play a part. I believe in chapter one Luis succeeds in a manner that will be as scintillating as it will be interesting.

 

In Chapter Two, Luis then looks at the constitution vis-a-vis the conduct of foreign affairs. He tries to ask and pose a question, how do we deal with the entire concept of foreign affairs and treaty-making, and two things emerge. He talks about the exercise of executive power, the functions of foreign power in the arena of diplomacy and the arena of treaty-making .He does justice in his work as he looks at the Vienna Treaty on treaty making. He looks at the laws and constitution and he cites a very interesting book which I recommend to law students who are present in this arena; “The Silences of the Constitution”, that the constitution does not always say all things there are some things that the constitution is silent about. Luis says therefore, that if you look at the arena of foreign affairs and look at the conduct of diplomacy you can then see the true interplay of the constitution vis-a-vis international law and that is where he spends quite some intellectual energy. How does he spend that energy? Number one, he poses the question what is the status of the constitution and he introduces the whole idea of sovereignty for sovereignty, because as you know there is the classical idea that we are a sovereign state and therefore have built this impenetrable shield around us. He denounces that theory and says when you enter in the idea of treaty making and enter into the treaty you are announcing to the world that something has happened. And he’s said it here before, that the bar is lowered, that you are therefore saying that going forward international law will of course be treated as if it were domestic law. That is the agenda setting that he does in chapters one and two.

 

In Chapter Three, he begins to examine the institutions of the African Union and he talks about the African Charter of Human and Peoples Rights. This is very instructive because Luis does spend quite some energy on that particular idea. I remember someone posed a question, “do we understand what human right are or is?” And he does because what he identifies is the fact that the African Charter of Human and Peoples Rights is unique in identifying the rounding what were traditionally described as first generation rights and the second generation rights and he introduces what we call today as third generation rights; The right to environment, The right to development and all those other expounded in the third chapter of the book.  

 

In the fourth Chapter, he begins to examine the institutions that have been created over time and he talks about this proliferation of institutions; the Banjul Commission, the Arusha Code of Human and People’s Rights, the Code of Justice which was dead on arrival and, he examines these things in the manner that he did when he was making his presentation and of course demonstrates to us that these institutions have been hamstrung at several levels .Number one, because of what you may allow me to describe as schizophrenia on the part of African governments, on part of judicial officers who are called upon to interrogate these instruments vis-a-vis domestic law. I am happy that Luis cites one of the greatest legal minds in Africa, Justice Dumbutshena of Zimbabwe who served at one time in Namibia and looks at his jurisprudence and the beauty of citing  judge Dumbutshena is in his indentifying the fact that there is no ‘one size fits all’ when dealing with these issues of human rights. Luis therefore deals with these Courts and identifies the fact that indeed at the domestic arena you are examining these instruments it must not be forgotten that in the international law there is a sense in which Human Rights now occupies an higher ground and it cannot be stifled simply because domestic law stands in its way.

 

In Chapter Five, he goes on and looks at the adjudicatory power and he tells us that the court has only decided one case the Kenyan case the Endorois Case, and even that jurisprudence has not been given its pride of place in terms of implementation so in a nutshell, what Luis does after he has examined in chapter one, the constitution vis-a-vis the international instruments, the constitution vice a vie foreign affairs, and looked at the count vice a vie the emergence of institutions,  the constitution vis-a-vis the various African Courts and also mentioned the proliferation of regional bodies as we now know; in ECOWAS he says that they have their own thing going on, in the EAC there own thing going on, in the Central Africa, in SADC, but all these particular institutions in many ways are not functioning for reason he assigns and speaks to in the book.

 

And his conclusion he does a number of things; he identifies the fact that in the domestic arena from a Kelsenian perspective, the constitution is truly the grundnorm, number two he identifies the fact that to exercise foreign affairs, the power to undertake diplomatic engagements and treaty making is a power that is ordinarily exercisable and exercised by the executive. Number three he identifies that when a country has entered into a treaty, that country is by expression stated we are surrendering some of our sovereignty and therefore international law relating to human rights ought to be dealt with as if it were part of domestic law. And he introduces the concept of dualism and monism. He says that even when you talk about monism, there is no self-execution, and therefore we ought to recognise the fact that going forward, we must find a tight balance. This is a synoptic presentation of what the book says and therefore it would be improper on my part to give you the full contents of the book. I rest my case. I think it is a good book that you ought to read!”

 

We congratulate the Dean, Dr. Luis Franceschi and the SLS fraternity! The book will be available for purchase from www.cambridgescholars.com and Amazon in April 2014.

 

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