From Avoidance to Constitutionalization of Private Law: The Puzzle of Horizontality

19 Pages Posted: 17 Sep 2024

See all articles by Ronald Bwana

Ronald Bwana

Mount Kenya University - Mount Kenya University, Parklands Law Campus, Students

Date Written: August 01, 2024

Abstract

Fundamental rights and freedoms enshrined in the Bill of Rights were previously understood as spelling the obligations that the State and its organs owe individual citizens i.e., in a vertical relationship rather than a horizontal relationship. This was premised on the inequality of power between the State and the individual in that the State is far more powerful than the individual and has a monopoly of violence within its territory thus it is necessary to provide the individual with a defensive mechanism against abuse of the State’s power. In recent times, fundamental rights have evolved to include an obligation on individuals and private entities to uphold fundamental rights in appreciation of the fact that rights abuses can also be instigated by private actors i.e., horizontal relationship. For instance, Article 20 (1) of the Constitution of Kenya recognizes that the Bill of Rights applies to all law and binds all State organs and all persons. Article 20(1) thus establishes both a vertical and horizontal application of the Bill of Rights. In that regard, this paper interrogates the application of the avoidance doctrine in Kenya. It argues that the Constitution of Kenya permeates all law hence restricting the application of the avoidance doctrine to Kenya.

Suggested Citation

Bwana, Ronald, From Avoidance to Constitutionalization of Private Law: The Puzzle of Horizontality (August 01, 2024). Available at SSRN: https://ssrn.com/abstract=4926650 or http://dx.doi.org/10.2139/ssrn.4926650

Ronald Bwana (Contact Author)

Mount Kenya University - Mount Kenya University, Parklands Law Campus, Students ( email )

Kenya
00100 (Fax)

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