Law And The Public Interest

Abstract

This volume contains the proceedings of the first of a series of seminars initiated in 1985 by the Faculty of Law. The series focussed on some of the main areas of teaching, research and dissemination of legal thought. The initiative for the series sprung from the ingenuity of some scholars, particularly Dr. C. O. Okidi, Chairman of the Faculty's Research, Library and Legal Publications Committee. In Africa, the law, especially enacted law, has been seen as the main instrument for implementing economic and political policy and for resolving stresses arising from policy decisions. This approach to societal problems prevailed even in colonial times, when the legal process was used to facilitate political and economic management programs. Partial responsibility for the chronic underdevelopment of much of Africa before independence lies with this use of the law. That such a role for the legal process still remains was considered intriguing enough to justify new, development-based studies in the Faculty of Law. Law has a role in stabilizing social institutions, and changes wrought by development initiatives need to be founded on institutional stability. Thus, how law responds to development is an important subject. Of the several seminar proposals prepared by the Faculty, the first to attract the interest of donors and participants was the one on "Law and the Public Interest." The purpose of the seminar was to consider, through specific examples, the role of law in promoting and safeguarding the public interest. Public interest here refers to a whole set of developmental matters set to benefit people socially, economically, culturally and in other related senses. Development in Africa is primarily state-directed. The private sector, even when ostensibly dominant, is regulated by the state through legislated codes or administrative practices. In many third world countries, the state, through its ability to command bureaucratic, financial and technological resources, becomes the main agent in mobilizing development. Public interest then includes those expectations which the citizens entertain in exercising their civil status. The state generally intervenes in the interest of its citizens through the device of law. Thus, clear perspectives need to be developed on the interplay between the law and the public interest in the process of national development. This concern is shown in the character, form and order of these proceedings. We hope that this volume will be useful to scholars and policy makers, as well as providing a basis for more specialized discussions on important topics such as population and resource management, the character of the law and its effectiveness in relation to policy, and resource rent and taxation. Funding for the seminar came from the International Development Research Centre (IDRC), the National Council for Science and Technology (NCST) and the University of Nairobi. We are greatly indebted to these donors for supporting the seminar and for permitting the use of the remainder of the funds to produce this volume. We also appreciate the role played by the participating scholars, from as far afield as Botswana, Cote d'Ivoire, Egypt, Indonesia and the United Kingdom. This kind of participation brought forth the experience of many societies, in both the industrialized and the non-industrialized world. We acknowledge the co-operation of members of the Faculty of Law who performed a number of essential tasks during the seminar, including serving as chairmen of sessions, rapporteurs and discussants. We thank Mr. A. G. Ringera, who served as chairman of the Kisumu Seminar Committee. Finally, we are indebted to the Institute for Development Studies for agreeing to have this work published in its Occasional Paper Series. Apart from the IDS personnel, in particular Dr. I. Riak, the Seminar Co-ordinator, we have also greatly benefited from the assistance of Alison Field-Juma of Initiatives Ltd. for editing and production, and of Dr. Calestous Juma of the African Centre for Technology Studies. Special thanks are due to Dr. John Oucho, of the Population Studies and Research Institute, who helped edit the two papers on population.