
Dr. Black
1.8K posts




The Asymmetry of Rights: There in no Equality Before the Law for the IMF 1. Section 5 of the Bretton Woods Agreements Act of 1963, as read with the Schedule to the Act, creates an impermissible asymmetry before the law. Fund Agreement Article IX, Section 2 gives the IMF full juridical personality, including the capacity “to contract,” “to acquire and dispose of immovable and movable property,” and “to institute legal proceedings.” 2. However, Article IX, Section 3 then provides that the Fund, its property and assets enjoy “immunity from every form of judicial process,” except where the Fund expressly waives immunity. 3. The result is a one-sided legal relationship: -The IMF can sue Kenyans in Kenyan courts. -Kenyans cannot sue the IMF. -The IMF can contract, own property, and enforce rights in Kenya. -Kenyans cannot enforce rights against the IMF. 4. This asymmetry offends the constitutional principle of equality before the law. Article 27(1) provides that “Every person is equal before the law and has the right to equal protection and equal benefit of the law.” 5. Equality before the law is not satisfied where one legal person may invoke the protection of Kenyan law but is placed, by ordinary legislation, beyond the reach of constitutional scrutiny. 6. A statutory regime that allows an international institution to sue, contract, own property, and enforce rights in Kenya, while denying affected persons and constitutional organs effective access to judicial process, creates a one-sided legal relationship that cannot be justified under the Constitution. #DeniBandia #OdiousDebt













