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Every business seeks to establish an identity for itself. This has been made possible by intellectual property laws which especially provide for the protection of trademarks. The marks must be distinctive for them to qualify for registration as a trademark. Registration of a trademark distinguishes the goods of one person from those of another and in most cases, a mark is attributed to the quality that is associated with particular goods. Perhaps Kenyans do not have a branding craze especially when it comes to slogans, and they need to be informed that slogans are part of branding their businesses. They just have to consider the following issues when coming up with a slogan; Is it distinctive? Is it memorable? Is it positive? Is it easy to recall?

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A capital market is not a marketplace in the sense of a physical place, such as a trading floor with people waving their arms and trading in securities.  It refers instead to the vast amount of capital available from financial institutions, pension funds, and investment funds (and a few high-net-worth individuals) who want to buy securities either to hold as an investment or to trade. Just like other realms of business, there are various laws that come to play in the securities marketplace. Legal practitioners come in to ensure that the key players adhere to the laws by advising them on what is required of them to ensure compliance.

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13 December 2022 by Dorah Msengeti

We have heard of or witnessed too many incidents where Kenyan citizens have suffered serious losses due to being denied emergency medical treatment, the most recent illustration being the sad story of the little boy who had a fork lodged in his head.

Usually, the denial of such treatment is tied to the victim’s inability to raise the funds required to facilitate the institution to administer the necessary and immediate care. At one point or the other, we have been approached to contribute to a fundraiser following a medical emergency. On other occasions, the patient was unable to receive emergency care and treatment due to the specialists needed not being available, the distance to health centers,

Kenyan Law on Medical Emergency and Emergency Treatment

The Kenyan Health Act defines a medical emergency as an acute situation of injury or illness that poses an immediate risk to the life or health of a person or has the potential for deterioration in the health of a person, or, if not managed timely, would lead to adverse effects in their well-being.

The same Act defines emergency treatment as the necessary immediate healthcare that must be administered to prevent death or the worsening of a medical situation.

Additionally, the Health Act states that every person has the right to emergency medical treatment which includes pre-hospital care, stabilizing the patient’s health status, or arranging for referral for cases where the health provider of the first call does not have the facilities or capabilities to stabilize the health status of the victim. Most importantly, this Act states that any medical institution that fails to provide emergency medical treatment while having the ability to do so commits an offence and is liable upon conviction to a fine not exceeding three million Kenya shillings.

Similarly, all healthcare providers, whether in the public or private sector, shall have the duty to provide medical emergency treatment. However, the healthcare providers are exempted from this duty where such treatment would go against the best interests of the patient, with the same being communicated to the patient’s next of kin or guardian.

The Constitution (Article 43 (1)) states that every person has the right to the highest attainable standard of health, which includes the right to healthcare services, including reproductive healthcare. No person should be denied emergency medical treatment courtesy of Article 43(2) of the Constitution of Kenya. In light of this, any Kenyan citizen faced with a medical emergency is entitled to receive the best emergency medical care and treatment.

(https://twitter.com/nationafrica/status/1573039430939574273?s=46&t=KNZXzQlxar0UW87WAXJrUQ)

Section 15 of the Health Act imposes a duty on the national government to establish an emergency medical treatment fund for emergencies to provide for unforeseen situations calling for supplementary finance as well as to provide policy and training, maintenance of standards and coordination mechanisms for the provision of emergency healthcare.

The national government is also obligated under the Health Act to develop health policies, laws and administrative procedures and programs in consultation with county governments and health sector stakeholders and the public for the progressive realization of the highest attainable standards of health including reproductive healthcare and the right to emergency medical treatment.

In light of this, the Ministry of Health launched the Kenya Emergency Medical Care (EMC) Policy in July 2021, in line with the World Health Organization (WHO) Emergency Care System Framework, to ensure emergency medical care is provided to all who need it thereby minimizing the morbidity and fatality caused by emergencies.

(https://www.emergencymedicinekenya.org/wp-content/uploads/2020/11/KENYA-EMERGENCY-MEDICAL-CARE-POLICY.pdf)

What Hinders Effective Emergency Medical Care & Treatment, and How can Technology help?

The Kenyan Healthcare Sector is riddled with challenges that hinder effective service planning and delivery. At the top of that list, undeniably, is corruption. At the height of the Covid-19 pandemic, the Kenya Medical Supply Authority (KEMSA) 7.8 Billion Kenya Shillings procurement scandal broke out and remains unsolved till date.

We know of numerous health centers across the country that are either understaffed, ill-equipped, or underfunded as a direct result of either corruption, mismanagement or poor monitoring mechanisms.

The modern lifestyle has brought with it a plethora of diseases that are increasingly affecting the population such as diabetes. The Kenya EMC Policy states that there is an increasing number of patients with acute diseases being presented to emergency departments across the country which is due to the already existing large burden of communicable diseases, the rising incidence of non-communicable diseases such as cancer, hypertension and diabetes, mental illness and trauma, and road traffic injuries.

Another challenge is the inadequate number of health centers to cater to the general populace. The cost of upgrading equipment and modernizing health services for increased efficiency is increasingly higher with each financial year.

More specifically, the absence of the national and county-level institutional and legislative framework and policy to guide both levels of Government on how to effectively deliver the necessary EMC services to citizens makes the implementation of measures to streamline this sector an uphill task.

The Kenya EMC Policy advocates for the establishment of an Emergency Medical Treatment Fund to ensure Kenyans can afford such treatment. The National Health Insurance Fund (NHIF) Amendment Act of 2022 contained a provision for such a Fund though the implementation is still pending. The Policy recommends additional funding allocation by National and County Governments to facilitate capacity building and training of EMC practitioners. This could potentially put a financial strain on county government budgets which would struggle to set aside such funds in the current economic climate.

These challenges enlighten us on the numerous improvements we need to make in the Kenyan health sector service planning and delivery which would in turn improve our emergency medical care and treatment systems. The Government has taken steps towards making such improvements as evidenced by the partnership with WHO to have a medical emergency hub in Nairobi which will have a training center and medical emergency responders.

(https://twitter.com/worldnews24u/status/1546485478194614276?s=46&t=KNZXzQlxar0UW87WAXJrUQ)

The Nairobi Governor recently hinted at a partnership with the Kenya Red Cross to enhance the County’s medical emergency response. There is still more to be done to reciprocate such initiatives in other counties as well.

(https://twitter.com/sakajajohnson/status/1587424887785852930?s=46&t=KNZXzQlxar0UW87WAXJrUQ)

The Kenya Council of Emergency Medical Technicians has made efforts to educate the public about how to respond in emergency situations. In addition to ensuring the public is well informed about how to respond to medical emergencies at the community level, incorporating the use of technology could enable us to make great leaps toward providing the best emergency medical care and treatment.

The Kenyan healthcare system is structured to comprise community facilities, health dispensaries and centers, county hospitals, county referral hospitals, and national referral hospitals, cumulatively referred to as healthcare centers. We need to have an integrated decentralized system capable of being updated and accessible by authorized personnel from any of these healthcare centers. This would enable accurate mapping out of emergency medical care services and service providers across the country, such as public ambulances and emergency departments, in order to ensure full geographical coverage as well as facilitate smooth delivery of such services in all parts of the country. Blockchain technology should be considered in making such a system due to its capability to securely keep a record of transactions and data maintained over a decentralized peer-to-peer network, with the specific network being controlled and accessed privately by authorized stakeholders in the EMC health sector.

Digital healthcare technologies can help by turning the patient into the point of care, as opposed to the actual health centers, thereby shortening the response time and increasing their recovery rate.

The Ministry of Health could consider incorporating the use of high-tech camera equipment and software for telemedicine which would enable health centers based in rural areas to access specialists’ services from anywhere in the country. Such arrangements would promote a faster response and treatment time as the patient would not have to organize for transferals to get the care that they need when faced with a medical emergency. Moreover, the software can be used to develop apps that not only help to diagnose patients quickly but also reduce medical errors caused by miscommunication between practitioners.

Artificial intelligence (AI) and tailor-made algorithms can be used to pre-check patients to help them determine whether they actually need to seek emergency medical care and treatment. Some patients may discover that their situations do not warrant a trip to the emergency department of their health center thereby saving them from unnecessary expenses in addition to leaving the emergency departments free to attend to those who direly need their services. The health sector in Hungary uses artificial intelligence to allocate logistics and capacity in the daily operations of their National Ambulance Service. Public and private organizations such as E-Plus Ambulances Kenya should lobby the Government to integrate such technology in the service delivery of emergency care and treatment.

Conclusion

These are just some of the ways technology can be used to improve emergency medical care and treatment in Kenya. Implementation, which would require strategic planning and sufficient funding by the Kenyan Government, would greatly improve our chances of survival when faced with a medical emergency by shortening the response time and bringing the required care and treatment closer to the patient. Furthermore, such improvements would create numerous employment opportunities for the Kenyan youth.

This article was published in the Kenyan Wallstreet on 18 November 2022 and can be accessed here.

13 December 2022 by Dorah Msengeti

I logged into my Instagram account and was prompted to connect my digital wallet to start sharing my Non-Fungible Tokens (NFTs) with followers and fans. That was the sign I needed to finally delve into the NFT world where it became clear that to understand Non-Fungible Tokens, we must first be familiar with blockchain technology.

Blockchain technology is a verified ledger system that shows and keeps a record of transactions and data, maintained over a peer-to-peer network. This tech comes in different forms such as The Ethereum Blockchain, Solana Blockchain, and Polygon Blockchain, The main difference is brought about through the use of different validation mechanisms that allow reactions to be added to each block. Blocks, which are located in data centers (called nodes), are where the data is stored before validation, with such storage being decentralized. Communication moves from one node, where information is stored and shared, to another via a secure network.

What is a Token?

A token is a representation of data on the blockchain. The data can be images, code or videos.

A fungible token can be exchanged for another token that is identical in use and nature. An illustration is the fiat currency we use every day where you can only exchange $1 for another $1 or something else equivalent in value. Cryptocurrency, such as Bitcoin, is also an example of a fungible token.

Non-fungible is a term that refers to something that is unique and cannot be substituted. Non-fungible tokens on the blockchain are singular, one-of-one representations of data or information. They include art pieces, collectibles, game wearables, memories captured (e.g., highlights in sports), photography, tickets and more upcoming items.

Every Kenyan citizen is free to express themselves artistically. Article 33 (1) (b) of the Constitution guarantees all citizens the Freedom of Expression and states that every person has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas, freedom of artistic creativity, and, in the exercise of this right to freedom of expression, every person shall respect the rights and reputation of others.

A Non-Fungible Token is therefore a representation of data, such data being the result of the expression of artistic creativity by an individual or group, on a digital ledger system with unique identifiers embedded in its metadata. This metadata, which can be accessed and viewed on a Blockchain Explorer such as Etherscan, contains details about the original owner (crypto wallet) and any new owners since, transaction number, transaction value and fee, and a timestamp.

Therefore, the metadata embedded in a Non-Fungible Token can be used to authenticate the ownership of the token, such ownership being protected by Article 40 (1) of the Constitution which states that every person has the right, either individually or in association with others, to acquire and own property to any description in any part of Kenya.

Does Kenyan Copyright Law Apply to NFTs?

Whereas ownership is the state of having complete legal control over the status of something, Copyright refers to the legal right to select who may publish, copy, and distribute an author’s work.

The question now becomes whether the metadata used to authenticate the ownership of a Non-Fungible Token suffices as proof of copyright ownership as well.

The Copyright Act describes an “author” as the person who first makes or creates literary, musical, or artistic work, the person responsible for the composition of a photograph, the person who made arrangements for the making of a sound recording, the person who made arrangements for the making of audio-visual works, the first broadcaster of any broadcast, the publisher of any published edition, the person who made arrangements necessary for the creation of a literary, dramatic, musical or artistic work or computer program which is computer generated, and a person who exercised control over the working of a program (computer programmer).

Following this definition, the authenticated owner of a Non-Fungible Token on any Blockchain is not automatically the copyright owner of the art pieces, collectibles, game wearables, memories captured, photography, or tickets as represented by the token.

An individual may take a screen recording of a memorable dunk from a live airing of a basketball game on one of the television channels (broadcaster), upload the same on a Blockchain as his Non-Fungible Token, and make a lot of money from the resale of the same to new owners. This individual may claim and prove ownership of the token on the Blockchain, courtesy of the metadata embedded.

However, the individual would have infringed on the copyright ownership of the broadcaster who had originally aired the game.

The continuous digital advancements create gaps in our existing laws and Kenyan law is still playing catch-up with the NFT world. Non-Fungible Tokens have many applications and use such as gaming applications, utility tokens, loyalty points or rewards, decentralized marketplaces, as well as representation of ownership of carbon credits and digital and physical assets.

Our legislators should consider making haste to effect amendments that cater to these emerging fields to prevent bad actors such as those who currently misuse Non-Fungible Tokens to launder money from having free reign for too long.

This article was published in the Kenyan Wallstreet on 24 October 2022 and can be accessed here.

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The Kenyan Premier League (KPL) prides itself as one of the best run and stable football leagues in the East African region. Despite recent upheavals that were occasioned by the exit of some key sponsors, KPL matches went ahead uninterrupted despite muffled complaints about lack of payments to clubs. As the KPL makes efforts to replace or renew sponsors, football fans always query why there is such apathy by local companies to be involved in local football. If football is the most popular sport in the country (beating even the more successful athletics and sevens rugby)surely a product such as KPL should be a hot commodity to corporates? Yet, in assessing the net worth of our league, one of the key parameters has to be its branding abilities and tied to that the Intellectual Property involved. Unfortunately, most of the teams that play in the Kenyan Premier League have not bothered to curve out a brand that can be hailed as a product when the rights to the leagues matches are being negotiated. Only four out of the eighteen teams in the league have either registered trademarks of their crests or applied for the registration of the same. AFC Leopards, Gor Mahia and Nakumatt FC are the only teams with registered trademarks in the top tier football league in the country whilst Mathare United has applied for registration of its marks. Anciean Limited has also filed applications for Wazito FC that are pending registration. Four other teams that are corporate related teams such asTusker FC, Chemelil Sugar, Nzoia Sugar and Posta Rangers make do with an imitation of their parent companies’ trademarks that are not the same as their official club crests. Curiously, East African Breweries have registered Tusker Sports as a trade mark and left out Tusker FC. Whilst AFC Leopards have one validly subsisting trade mark (in two classes) registered in the year 2008, their previous three trademarks 32489-91 registered in 1984 were all allowed to lapse for non-payment of renewal fees. Incidentally, the Club has not protected its nickname ‘Ingwe’ as a trademark owing to a conflict cited by the Registrar in respect of previous trademarks registered by the club’s supporter’s trust. This points to the need for clubs to always work closely with affiliated groups to ensure there is no danger to its primary marks. Gor Mahia have two validly subsisting trade marks (one in each class) registered in the year2012 though the club has also not protected its nickname ‘Kogalo’ as a trademark. Related groups have however registered trademarks such as Gor Mahia Sacco and Goma Lotto though efforts by one company to register ‘Kogalo Night’ was refused by the Registrar inexplicably citing the ‘Kogelo Marathon Run for Charity’ trademark as being the closely resembling mark. Mathare United’s three trademark applications though made in the year 2011 are still not protected as the club has failed to comply with registration requirements that include paying advertisement fees for the marks to be notified to the general public in the Industrial Property Journal. Nakumatt FC has registered its two trademarks (one word, one word and device) though the same appear in the name of Nakumatt Holdings. The recent announcement that the Club is up for sale may mean that the purchaser acquired the trademarks for the registered proprietor though a new proprietor on weighing the goodwill in the trade mark can choose to change the same to align it to any new name of the club.

 Trade Marks are part of the assets of the clubs and the fact that so many clubs in the league have not even bothered to have their trademarks protected points to very shallow marketing ethos by the clubs and the Kenyan Premier League as a whole. The clubs’ crests together with sponsor logos are used on advertising banners thus where the clubs have not registered their trademarks, they run the risk of other persons imitating their crests. Clubs will also have legal problems taking action against persons who sell merchandise under their crests as trademark infringement is only operational and can only stand where the trademark is registered. The clubs may nonetheless pursue passing off even with unregistered trademarks. For those using their affiliated company logos without any formal application made to the Registrar of Trade Marks for license (or registered user) usage, they run the risk of opening up their mother company trademarks to abuse by others who may then cite acquiescence as the reason for their misuse. Most sponsors require the sporting entity to list its Intellectual property (usually the trademarks) and to warrant that the same shall be kept subsisting during the term of the sponsorship. KPL clubs will therefore have problems meeting this condition unless they register their trademarks. For instance if AFC Leopards cannot guarantee their Ingwe TV show as a trademark it heightens infringement issues. Unlike other leagues such as the National Basketball Association which holds the trademarks on behalf of the clubs and renews the same when due, KPL clubs have no such arrangement. This may be due to the fact that American sports do not have relegation whereas the Kenyan Premier League have comings and goings to the league. KPL as the body mandated to run the league ought to have educated the clubs on the importance of the Intellectual Property protection or if they have done so, they should ensure some form of enforcement of the same to increase commercial credibility of the league.

It is noteworthy that the Kenyan Premier League itself as a body does not have a registered trademark. Indeed, the logo that the league uses bears such a close resemblance to the Lion Air logo that one may conclude that creativity and intellectual property is not a forte of the league. The same could be an easy target for infringers who may cite the potential passing off of the logo if accused by the league. Curiously, the body that KPL is affiliated to being the Football Kenya Federation has also not registered its trademarks in the country. Even worse, nicknames such as Harambee Stars are also not protected under trademark law despite the lesson that many African nations learnt during the dispute by their fellow federation South African Football Association and Stanton Woodrush over the nickname Bafana Bafana. SAFA ended up paying huge sums reputed to be in the region of Kshs. 40 million to be the proprietor of the trade mark Bafana Bafana. Other sports federations should nonetheless also take cue. Whilst the Kenya Rugby Football Union registered its trademark 55732 in 2004 which was due for renewal in 2014, Shujaa, the much celebrated Rugby Sevens team is not registered as a trademark by the same Rugby Union. There are already several companies that own the Shujaa Trade Mark including Foot plus Limited and Shujaa Clothing Company Limited in classes such as clothing which may be of interest to the Rugby Union. With the dearth of trademark protection, is it therefore any wonder that the Kenyan Premier League clubs are largely unrecognizable? How would such clubs attract following within the country and outside Kenyan borders with little branding? How do such clubs protect their merchandising if they cannot even file a simple application to protect their trademark and protect their brands? Other clubs worldwide have recognized merchandising as a revenue stream and protected their brands in a major way. Barcelona FC have 300 filed or registered trademarks whist Manchester United have a count of 271. Even players have also protected their trademarks with Neymar having 47 trademarks to his name (including his logo NJR). Lionel Messi has 33trademarks. In Kenya, Manchester United has equally protected its trademark 63155.Kenyan Premier League clubs should up their game and ensure they have adequate intellectual property protection on this important aspect of their business. Otherwise, the tag of being an organized league will be a hollow one and probably untrue.

Introduction

The rudimentary relationship between human rights law and the phenomenon of terrorism, with particular attention to the interrelation between international human rights law and counter-terrorism responses cannot be gainsaid. The boundaries between human rights law and international humanitarian law (IHL) are not adjoining, but rather overlapping. Responses to terrorism, whether understood as “war” or law enforcement, involve choices that have repercussions for the rule of law, its advancement, and observance.

Terrorism is indefensible, unacceptable, and certainly unjustified and thus needs to be stopped and society protected. There’s however little point in doing so if the results would be loss of the freedoms that define the very society we are in the struggle to protect. These freedoms exist through institutional units and the control imposed on government action, thus our core challenge remains to provide a forceful institutional response to violence while controlling that response. Terrorism is yet another threat to social order that needs to be met in a controlled fashion. Issues of Human Rights violations have been on the rise owing to the enactment of counter-terrorism legislation in several countries that contravenes the spirit of human rights law.

It is worth noting that democracy, rule of law and individual freedom are relatively intertwined such that without individual freedom and the rule of law, real democracy cannot exist and vice versa; and on the other hand, the rule of law and individual freedom are inconceivable with an anti-democratic regime. These values are thus interdependent; in a modern democracy, each is equally advanced. The core remains that human rights are a guarantee and a precondition for individual freedom. However, they will only be respected in a society where the State upholds the rule of law, even under challenging circumstances as brutalterror attacks.

1. Terrorism and its unique aspects

Terrorism and the resulting effect of the war on terror remains a thorn internationally. This war, like any other, requires preparations at all levels of command, weaponry, special tactics and rules of engagement, and a legal framework within which to act. But despite the unanimous denunciation of terrorism by all Nations, it has so far been difficult to meet these requirements. A clear and specific definition of “terrorism” remains the major contention.

Any war is simply a series of actions with specific targets using a sequence of different tactics and successive measures that at all times should be under control until the strategic goal is achieved, which is usually tied to the political or economic interests of the warring countries. In terrorism, what is this target? A person? A nation? A doctrine? An international network? There needs to be a clear way to identify, and therefore label, the supposed “terrorist.”

The second concern is the lack of a uniform legal framework governing the war against terror. The offence of “terrorism” and the actor “terrorist” is undefined in any law and therefor a major challenge to successfully prosecute terror suspects without raising human rights related concerns since treating terrorism just as any other crime seems too lenient considering the gravity of the harm.

In the existing legal framework, terrorism as an offence has been addressed under an amorphous legal framework. This denotes that terrorism is not recognized as an offence legallyper se and therefore is viewed disjointedly. Terrorism is thus prosecuted under different categories of offences as perceived respectively; as an international crime, a crime against humanity, a war crime and as genocide. This is however complicated as such acts of terrorism have to fit within the respective definitions to warrant its prosecution.

 2.Terrorism and the Use of Force

International law proscribes the use of force between states as expressed in Article 2(4) of the Charter of the United Nations (UN Charter). This prohibition has attained the status of jus cogens. However, the charter allows two exceptions for use of force; under Chapter VII the Security Council can allow use of force in extraneous circumstances to restore international peace; and Article 51 allows for use of force in exercise of a State’s inherent right of self-defense as well as backed with the 2004 International Court of Justice’s(ICJ) Wall advisory opinion that clarified the context of the use of force. Invoking the latter justification has however, been marred with controversies since not every instance of the use of force against a state is deemed to be an armed attack under Article 51. Escalating this controversy is the war on terror. International law regulates both jus ad bellum and jus in bello.

There has emerged a new ‘International anti-terrorism law on the use of force’. Its emergence has helped shape the broad-spectrum of law on the use of force by curing old controversies on the concepts of pre-emptive, preventive or anticipatory self-defense. Prior to 9/11 the norm was that an ‘armed attack’ must have occurred before the right on self-defense could be exercised. The Bush doctrine, post 9/11 order by anticipatory self-defense nevertheless triggered the international community, shifting its classical strict approach to a fairly middle-ground of pre-emptive self defense.

• Principle of proportionality and the Use of Force

It is imperative to exemplify the extent and justification of use of force by states in the face of brutal terrorist attacks.The principle of proportionality in the use of force is a necessary, sensible and humane doctrine of international law. For any use of force to be lawful, it must be proportionate. Contemporary understanding of proportionality is informed by Article 51(5)(b) of the 1997 Additional Protocol 1 to the 1949 Geneva Conventions defining an indiscriminate attack. The principle prohibits attacking a military objective if doing so will result to a loss of civilian life, damage to civilian property or damage to the natural environment that outweighs the value of the objective. This principle works in conjunction with other fundamental principles of IHL including the principle of discrimination, necessity and humanity.

Counter-terrorism measures are hence, governed by the principle of proportionality. The measures taken in response must be proportionate to the harm caused by the wrong. Proportionality requires an assessment of the means to accomplish the lawful objective. When states have no right to resort to force or no right to resort to force to the extent they do, the principle of proportionality governing the conduct of force still applies.

 3. CONCLUSION

The global war on terrorism clearly straddles the line between law enforcement and national security. We are clearly at war, but the stated objective of that war is, at least in part, to bring wrongdoers, (terrorists) to justice. It is thus vital that a degree of balance be achieved between civil liberties and security.

There is therefore need to have in place a clear and concise anti-terrorism and counter-terrorism legal framework with precise emphasis on rules of procedure, sentencing as well as definition of the vice and its perpetrators. Every criminal suspect deserves to be affordedthe fundamental principles of criminal law; including non-bis-in-indem, nullum crimen sine lege and nulla poena sine lege principles, presumption of innocence, the right to a fair trial and the right to be convicted only on the basis of individual penal responsibility.

In light of the foregoing, even in the face of the brutal maim and murder of the innocent students in a grizzly manner at the Garissa University in Kenya, upon apprehension, the suspects of the terror attack must be dealt with, though inexorably, but within the confines of fundamental human rights in the context of fair trial.

The use of force by a state, as observed, may be legally permissible but disproportionate. The ICJ made this point in the 1986 Nicaragua Case, where it distinguished minor armed exchanges or “frontier incidences” from attacks that give rise to the right of self-defense. The Al Shabaab attack at Garissa University gives rise to Kenya to use the level of force permitted in self defense. In this regard, should Kenya opt to exercise its right of self-defense, the force used against the Al Shabaab militia must respect the principle of proportionality.