CONCEPTUAL AND THEORETICAL FRAMEWORK
The theoretical framework of this paper is two pronged: the first part addresses theories on soft law and hard law while the second part addresses the need for disaster management legislation altogether.
This study focused on the two contrasting jurisprudential schools of thought to delve into the debate on soft -v-hard law: positive law school and American legal realism. The primary point of debate is whether soft laws are adequate in managing disaster or whether hard law must be promulgated in conjunction with soft laws to achieve the desired end. Mention will also be made to the human rights theory and the natural law school to inform the discussion on the indiscriminate need for laws in disaster management.
The debate on hard law -v- soft law is not new in the academic sphere. Many writers have ventured in this field theorizing both pros and cons of each type of law. Some have come out in support of soft laws as sufficient mechanisms, others hard law and others supporting the use of both.
The positive law school proposes that valid laws are only those that which come from a place of authority, in accordance with certain procedures, that the society enforces. They focused on what the law is and not what it ought to be. Classical positivists such as John Austin only recognized law as that emanating from a sovereign/state, that is, the hard laws.1 He focuses on the coercive nature of laws with the possibility of sanction that impose duties or obligations on individuals. Normative positivists took a slight turn from this rigid position recognizing both primary and secondary rules. H.L.A. Hart, a contemporary legal positivist, proposed the “separation thesis” in response to the natural law school separating morality from the law.2 Hart also separated laws into primary and secondary rules.3 Primary rules are those that impose duties, whereas the secondary rules confer powers which may alter duties or obligations. Although the normative and classical positivists differed on aspects such as the source and nature and classification of the law, they agreed on the fact that the law must be laid down in statute books and must be adhered to by the polity. In modern day application, positivists are in support of legislation rather than policy. To them, non-binding laws cannot be considered as laws altogether and in the event that they are branded as such, they remain inferior to laid down laws. Francesco Sindico, a modern-day positivist, for example, only views soft law as a stopover in the creation of legally binding laws.4
Legal realism informs a contrary argument towards the importance legislation holds vis-a-vis other sources of law in achieving the desired end. The American realist school particularly is a cross breed between analytical positivism and the sociological school.5 They are not focused on hard law posited in law books per se as the positivists; rather it is focused on law on its application post judicial decisions. To them, the law is not sufficient as it is unless it is applied to the facts of life. Realists are concerned about the operationalization of the law and are not fixated by legislation.
Oliver Wendell Holmes, a major proponent of this school, is famous for his remark that “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”.6 This phrase is an example of their approach which places importance on judicial over what is actually in the statute books. The realist thinking is more progressive in the sense that
What then happens in the event that there is no law in place to begin with considering the unpredictable nature of disasters? In my view, the realist practical approach opens-up avenues for the application of laws outside the purview of statute. It is my view, that in Kenya’s case, the Court, in the absence of legislation, will apply constitutionally backed policies as law in the absence of hard law. In Kenya’s case, the Ministry of Devolution is a creature of the law and creation of policy is a lawful endeavor. In addition, the Constitution provides that disaster management is the role of both the National Government and County Government.7 Therefore, the Constitution has laid down the base for disaster management through both soft and hard law. The only hurdle is the absence of legislation to guide the executive on how to exercise its mandate. By recognizing policies as law, the Court will have remained within their mandate as interpreters of the law without overstepping into the role of the legislature.8 By doing so, the Courts will have made a Constitutional based pronouncement that protects the well-being of the citizenry.
Therefore, in line with the realist thinking, policies backed by the Constitution are sufficient in managing disasters in Kenya. The Ministry of Devolution and Special Planning (formerly the Ministry of State for Special Programs) formulated the Draft National Policy for Disaster Management in Kenya (2009) making the option to legislate unnecessary.9
In the conclusion of this paper, I give a recommendation on the necessity to legislate in the area of disaster management based on the positivist school or the American realist school. This will contribute to the overall debate of the effectiveness of hard law v soft law in achieving the desired ends.
The second facet of the study on the overall existence of disaster management legislation in Kenya is informed by the human rights theory. Human rights are rights derived from the inherent dignity of the human person.10 The Magna Carter was the first document to recognize human rights in 1215 after King John of England violated ‘human rights’.11 Human rights were formally recognized in the world over following the conclusion of Treaty of The Peace of Westphalia, concluded in 1648 in Münster (Germany), which ended the cold war. Since then, the jurisprudential school of human rights has continued to grow to date.12 Although the Treaty was the first formal recognition of human rights, natural law scholars had already alluded to human rights in their works. Thomas Hobbes and John Locke are the main scholars who developed the Natural Rights Theory.
Hobbes, in the Leviathan, espouses the theory of Such self-preservation which constituted the indispensable core of human rights. He linked the idea of the necessity of self-preservation to the need of a social contract between the polity and a sovereign ruler. The underlying factor as to why a sovereign ruler must step in is the inclination of individuals to do whatever is necessary to protect their natural rights.13 He therefore recognized the existence of natural rights and the role of the state in safeguarding these rights. The Constitution of Kenya (2010), in the Bill of Rights, recognizes the citizenry’s right to life which can only be limited by law.14 It is the role of the state to protect this right by implementing measures that will mitigate the effects of disasters. It is my assertion that this role can only be effectively exercised if there is legislative framework to guide the state in the event of disaster.
John Locke further developed this, arguing that every human being has a personal right to life, personal liberty and property and that no government authority has the power to deprive individuals of these rights, because they are inherent, meaning they enjoyed them, even before the creation of a civil or political society. 15
Jack Donelly states that human rights are held universally by all human beings. They are the highest moral rights and they regulate the fundamental structures and practices of political life. In ordinary circumstances, they take priority over other moral legal and political claims. These dimensions encompass what he calls moral universality of human rights.16
The Constitution of Kenya 2010 provides for the right to life, the right to property, freedom and security of the person and economic and social rights.17 The economic and social rights provided for include the right to be free from hunger, the right to clean and safe water, the right to social security and the right to the highest social attainable standard of health. Unmanaged disasters deprive the population of these rights, and it is therefore on this, that the study is based. It is the role of the State to protect these rights by setting systems in place to counter disasters as and when they happen.
Closely related to the Human Rights theory is the Natural Law school. Aquinas, the main proponent of the classical natural law theory, defines law as a certain ordinance of reason for the common good, meaning it burdens the community equally and is made by him who has the care of the community with the power to coerce others to obey it and promulgated.18 Further, it is created by a being with reason and must have an end or goal. The law should be for the common good, therefore, it should benefit the society as a whole rather than the private good of individuals. In addition, the law is made by him with the authority to do such. The law should be promulgated. Promulgation of laws basically means that it should be made known to those being ruled by it.
In line with Aquina’s thinking of Law, law should be created within reason, with a particular end or goal. Disaster Management laws must be formulated with reason, it must be well thought out and effective. According to Aquinas, the laws must be made by a person or body with the authority to make the law. The body responsible for the making of law is the legislature. The law has the force of law only when it is promulgated. 19 The disaster management law ought to be made known to the public for it to fulfill the purpose for which it was intended.
1 The Province of Jurisprudence Determined (1832) John Austin
2 The Concept of Law (Oxford: Clarendon Press, 1994) H.L.A. Hart,
4 Francesco Sindico, Soft Law and the Elusive Quest for Sustainable Global Governance, 19 LEIDEN J. INT’L L. 829, 832 (2006)
5 Rigveda Dattatraya Amonkar, Positivism With Reference To American Realism Available at: http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Rigved.pdf Accessed September 29th 2017.
6 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review 460-61 (1897)
7 Constitution of Kenya 2010, Fourt Schedule
8 The standard edition of De l’Esprit des Loix is by J. Brette de la Gressaye, Paris, 1950, 4 vols. Quotations are from the translation by Thomas Nugent, ed. by F. Neumann, New York, 1949.
9 Kenya Law Reforms Commission http://www.klrc.go.ke/index.php/bills/477-development-of-model-laws-on-disaster-management-and-fire-rescue-services on August 30th 2017
10 Preamble, International Covenant on Economic, Social and Cultural Rights , 16 December 1966.
11 Archives.gov. (2015). Featured Document: The Magna Carta. online Available at: http://www.archives.gov/exhibits/featured_documents/magna_carta/ Accessed September 29th 2017.
12 Michael Vaughan After Westphalia, Whither The Nation State, Its People And Its
Governmental Institutions? 2011
13 Hobbes T, Leviathan, Oxford: Oxford University Press, (2012), 72-73.
14 The Constitution of Kenya, Article 26
15 Locke J and Whiston J , Two Treatises of Government, London printed: Reprinted the seventh time by Whiston Strahan W, Rivington F, Rivington J, Davis L, Owen W, Hawes, Clarke and Collins, Johnston W, White B, Caslon T, Crowder S, Longman T, Law B, Rivington C, E. and C. Dilly, Wilkie J, Cadell T, Baker S, Payne T, Davies T, Robinson G, Becket T, and Robson J, (2012), 427.
16Donnely J, The Relative Universality of Human Rights, Human Rights Quarterly 29 (2), (2007), 281-306.
17 Article 26,29, 40, 43, Constitution of Kenya, (2010).
18’Prof. James E. Mabon: The Philosophy of Law’ Available at: http://home.wlu.edu/~mahonj/PhilLawLecture1NatLaw.htm on 26 September 2017.
19 Maritain J, Man and the State, The Catholic University of America Press, (1951), 82.