Keep up with the ever-changing position of law with our summary of recent legislation
As a student reading law, with all the usual obligations we have (such as seminar preparation, coursework and exam revision), many forget to pay attention to the ever-changing position of the law. Although not the most interesting of things to do, updating your legal awareness is paramount to pursuing a career in law. Here, we have summarised a few of the recent laws to have been enacted and legal principles that have been confirmed by the courts.

Kenya adopts new constitution

Nearly three months ago, on the 27th August 2010, the government of the Republic of Kenya excitedly promulgated a groundbreaking document, nearly twenty years in the making – its new constitution. The event was so significant that tens of thousands of Kenyans flooded the streets to witness the ushering in of what many regard as a new era in the country’s sovereignty and nationhood. Also in attendance was internationally controversial Sudanese President Omar al-Bashir, whose presence is seen by some as demonstrating an appreciation for impending innovations upholding the rule of law on the entire continent and a “peace” between the neighbouring countries – as enunciated by Kenyan President Mwai Kibaki.

The document is hoped to provide more transparency within the countries political system and promote a greater sense of democracy through the decentralisation of the President’s powers by creating a second parliamentary body, the Senate. In addition to this the new constitution establishes a system of local county assemblies, abolishing the old system of provincial government, which is hoped to eradicate corruption.

Kenya’s new constitution declares that the country’s national values and principles of governance include “human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.” It is envisaged that these values will be both promoted and protected by a newly-formed National Human Rights and Equality Commission, which is given the authority to “to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct,” among other things. These principles are important in a modern democracy, especially one that has experienced decades of discrimination, tribal conflict and corruption.

It also seeks to ‘right the wrongs’ of the past and protect the transparency of land dealings by establishing a Land Commission that is to “manage public land on behalf of the national and county governments.”
Although very timely in its conclusion, the new Kenyan constitution provides a comprehensive legal framework for the emerging developing nation, enabling the protection of those that are most vulnerable and the abolishment of widespread corruption and discord. It is now only to be seen the outcome of its full implementation. The first hurdle has now been overcome and places Kenya well on the road to democratic progression and sovereign growth.

The UK validates prenups

Prenuptial agreements are contracts entered into before marriage or civil union which speak to the terms on which the separation is to take place. Often one partner encourages the other to sign this contract on the rationale that their marriage is founded solely on love and not an interest in the finances of the more affluent of the two. This was very important to Katrin Radmacher when she signed a prenuptial agreement with Nicolas Granatino in Germany before marrying him in the United Kingdom in 1998. In 2006, Granatino and the heiress to a paper firm empire separated and applied for divorce with Granatino challenging the legality of the pre nuptial agreement.

Unlike the United States and a cross- section of Europe, pre nuptial agreements carry no legal weight/force in England with the family courts preferring to rely on the dictum of an equal division of the marital assets between both partners.

Radmacher’s counsel argued that in keeping with the fairness principles often espoused by the courts that it can be argued that once the pre nuptial agreements are conscionable; they should be binding as couples make crucial decisions in the best of times and should be able to do the same in the worst of times.

Commentary on this subject has been rife in recent times with one line of criticism of pre nuptial agreements being that they facilitate one partner being severely disadvantaged financially with this partner usually being the wife.

In this case however, the wife won the right to rely on her pre nuptial agreement with a majority decision with ironically the only woman on the bench, Lady Hale dissenting. It is her position that a pre nuptial agreement is only one of a number of factors that need to be taken into consideration in divorce proceedings.

This decision is set to open the floodgates of reliance on pre nuptial agreements and it is reasonably foreseeable that they would be given more legal force in times to come.

California Proposition 8

The ongoing debate on the definition and the scope of marriage especially pertaining to same-sex unions has recently taken an interesting turn. On the 4th August 2010, a United States district judge ruled that the ban on same-sex marriages imposed by the Proposition 8 referendum in 2008 was a breach of the constitutional right to equal protection.

Attempts by California legislators to restrict and contain the definition of marriage to a union solely between a man and a woman have been ruled against by the court as being unconstitutional despite receiving the support of 52% of California voters in the recent state elections. It facilitated the inclusion of a provision to the California Constitution that “only marriage between a man and a woman is valid and recognised in California”.

This sparked fierce protestation for Lesbian and Gay Rights groups who argued that their constitutional rights had been infringed with religious groups principally Christian groups, community leaders and pro-family organisations crying out for the maintenance of the Proposition 8 amendment in order to defend and restore the definition of marriage, as they understand it.

There is definitely a long road ahead with much room for the development in the law as this case makes its way to the Supreme Court. The eyes of the Lesbian, Gay, Bisexual and Transsexual community are on California.