Land Law in Kenya Essay

An interest in land according to The Registered Land Act Cap 300 is defined as follows: â€Å"interest† in land includes absolute ownership of land. According to Black’s Law Dictionary, interest with regard to land law is defined as a legal share in something; all or part of a legal or equitable claim to or right in property that is, right, title, and interest. Collectively, the word includes any aggregation of rights, privileges, powers, and immunities. Oxford defines interest as interest with regard to land law as a right in or over land. It may comprise equitable ownership of the land such as the interest of the tenant for life under a settlement, where the legal estate is owned by trustees; or the benefit of some other right over the land of another, such as an easement or rent charge. In all these definitions, the characteristics of rights over the land, ownership and title are key features of interests in land. We should therefore examine these three to develop a full understanding of what interests in land really are. Rights over Land Definition A right over land is the exclusive liberty and privilege to enjoy land due to the individuals with legal shares in the land. Land here is perceived as the following definitions: Section 2 of the RTA defines land as including ‘land and benefits to arise out of land or things embedded or rooted in the earth, or attached to what is so embedded for the permanent beneficial enjoyment of that to which it is so attached, or permanently fastened to anything so embedded, rooted or attached, or any estate or interest therein, together with all paths,  passages, ways, waters, watercourses, liberties, privileges, easements, plantations and gardens thereon or there under lying or being, unless specifically excepted’. Section 3 of the RLA defines land to include land covered with water, all things growing on land and buildings and other things permanently affixed to land. Section 260 of the Constitution of Kenya’s definition of â€Å"land† includes— (a) The surface of the earth and the subsurface rock; (b) Any body of water on or under the surface; (c) Marine waters in the territorial sea and exclusive Economic zone; (d) Natural resources completely contained on or under the Surface; and (e) The air space above the surface; Therefore when regarding rights over land, this is looking-glass through which land is viewed. The definition of a right over land has roots in two Latin maxims. 1. Cuius est solumeius estus que ad coelum et ad inferos: meaning he who owns the land owns everything extending to the very heavens and to the depths of the earth. This maxim was set forth in Wandworth v United Tel. Co. Ltd (1884) 13 B.D. 904 2. Quid quid plantatour solo, solo cedit: meaning whatever is attached to the ground becomes a part of it. The rule also implies that objects attached to the building in question become annexed to the realty with the result that they are regarded as â€Å"fixtures.† The Land Registration Act Cap 300 Section 30 represents an evolution and stratification of these rights and goes on to describe these rights as follows: 30. Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register – (a) Rights of way, rights of water and profits subsisting at the time of first registration under this Act; (b) Natural rights of light, air, water and support; (c) Rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law; (d) Leases or agreements for leases for a term not exceeding two years, periodic tenancies and indeterminate  tenancies within the meaning of section 46; (e) Charges for unpaid rates and other moneys which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land; (f) Rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription; (g) The rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed; (h) Electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or lay in pursuance or by virtue of any power conferred by any written law: These rights are acquired by the proprietor of the land. A proprietor, according to the Registered Land Act Cap 300 is (a) In relation to land or a lease, the person named in the register as the proprietor thereof; and (b) in relation to a charge of land or a lease, the person named in the register of the land or lease as the person in whose favour the charge is made; These rights are enshrined in the Laws of Kenya and as such they are a fundamental aspect of the Kenyan legal position. The importance of the rights over land are as important as the issue of land itself for the rights over land are the reason and rationale to own, occupy and sell land. After all, what is the point of owning land if one has no rights over it? The Rationale Behind Rights over Land The importance of these rights is engrained as much in their history as much as their practicality. The history of rights over land in Kenya can be traced back to the pre-colonial era. In pre-colonial Kenya, the land was owned by the community at large. Rights over land were granted to all members of the community. All members of the community could derive all benefits he or she so wished. (It is important to note that the pre-requisite to enjoy these benefits was membership to the community not proprietorship as is the case today.) However, the land being owned by the community and by virtue of the entire community being able to use the land as they wished was by all means and purposes owned by the community at large not by individuals. Therefore the appropriation of such land was not under the purview of individuals. By its very nature, appropriation is based on capitalist concept. The principle behind appropriation is the exclusive  enjoyment of certain property and all rights pursuant to it. The African view towards land was inherently communist. The shift from the communist view towards the rights over land to the capitalist view was a result of the British invasion and colonisation of Kenya. Colonialism brought with it a free enterprise economy. A characteristic feature of that mode of production is that it is individualistic. That is to say, at the core of it, the individual has the greatest motivation if he knows that whatever he applies, whatever he produces through his own sweat and effort will be entirely his and not available to be shared by others or subjected to being communally owned. One immediate impact of the introduction of the free enterprise system was that land was treated as a commodity which could be individualized, sold, owned, or dealt with as per the wishes of those who had titles to such land. Due to agriculture being the main income generator for colonial settlers and in turn the colonial government, the issue of land ownership and the rights over land were dispensed with expediently. Over the years, land policy in Kenya has undergone a transformation especially as a result of the 2010 Constitution. However, the basic rights over land have remained the same. Land Tenure Definitions 1. The use of land in a manner established by custom or law. 2. The right to hold property; part of an ancient hierarchical system of holding lands Under capitalism the system of land tenure is based on the right of private land ownership (by capitalists or small working peasants) or on a land rental agreement. Various forms of rental relationships are becoming increasingly prevalent in agriculture. Under socialism the system of land tenure is based on public socialist ownership of the means of production and on the socialist economic system. When the new system of landholding was introduced in the eleventh century, the king gave rights over large areas of land to each of his most powerful  supporters, in exchange for an oath of loyalty and the performance of services (which very often involved ï ¬ ghting for the king when necessary). In turn, each lord would grant to his followers similar rights over parts of the land he had received, again in exchange for loyalty and services. The relationship between the grantor (the king or lord who granted the rights) and the grantee (the tenant who received them) is called ‘tenure’ (from the Latin word ‘tenere’ which means ‘to hold’), and various forms of tenure developed, according to the nature of the services to be performed by the tenant. These forms of tenure came to be described as ‘freehold tenures’, because rights in land could be held in this way only by free men (i.e., not by the unfree serfs or villeins, who were obliged to remain in the area in which they had been born and to work for the local lord). Over the centuries, changes in society meant that the services due from the tenant were no longer performed and the link between lord and tenant was forgotten. However, the underlying theory that land is held from the Crown remained, and although most forms of tenure have been abolished a ‘landowner’ is still said to hold his land from the Crown by the one remaining form of tenure (‘free and common socage’). Nevertheless, for all practical purposes the doctrine of tenure has little modern signiï ¬ cance, and it is very likely that the owner of a house is completely unaware of his tenurial relationship with the Crown. Under feudalism there were four principal forms of land tenure. Land tenure by the feudal lord, based on various forms of hierarchical feudal land ownership and on the dependent position of the workers themselves, the serfs or feudally bound peasants. Tenure of allotted land by serfs who were attached to land not belonging to them and who therefore bore various obligations to the feudal lord for its use; this form secured the economic basis of the class rule of the feudal lords (gentry’s landowners) and, within certain limits, created conditions for the development of small-scale peasant farming. The third form was land tenure by peasants who enjoyed personal freedom but had to pay a quitrent (monetary or in kind) to the feudal lords or fulfil  personal obligations. The fourth was land tenure by free peasants, based on their free, alodial ownership. Such a free peasant, however, was a rare phenomenon under feudalism. Doctrine of Tenures is a doctrine followed in old English law whereby it is presumed that all land is held of the Crown, either directly or indirectly, on some type of tenure. Legal Effect of Doctrine The crown is the owner of all the land. No one has absolute ownership. Rather, landowners hold the land ‘of’ the Crown as tenants (therefore tenure). They may then alienate their land further, creating subtenants (subinfuedation). The relationship between a lord and his tenant is one of mutual duties. In return for tenure, a tenant provides the lord with services and a right to incidents. Elements of Doctrine According to the doctrine, all of the land ultimately belongs to the Crown, who gives it (via ‘grants’) to people. This means that no one has absolute ownership (no ‘allodial’ land). The people are said to hold the land ‘of’ the Crown. They are ‘tenants’ of the crown, therefore, they are granted ‘tenure’. The doctrine creates the system of lord and tenant – the lord alienating land to a tenant (who can then alienate the land to someone else, creating a new lord and tenant relationship). There is a mutual exchange or duties and obligations between the lord and tenant: Services – the tenant has to provide a variety of services for the lord in return for his tenure. In return, the lord provides the land, a court (manorial courts) and protection. Incidents – the lord also had rights to incidents – . Roots of Doctrine The doctrine originated in the Norman Conquest, when William the Conqueror made the Crown the absolute owner of all land. His supporters were made ‘tenants in chief’ pursuant to a ‘grant’. The old landlords who did not rebel were entitled to keep their land. To deal with this, William created the legal fiction of the Crown having ‘granted’ this land to the landlords. Land ownership had a pyramidal structure with complex ties between Kings and tenants in chief. The King was at the tip, and sub-tenants were at the bottom. In the middle were tenants who made grants. These tenants who made grants became Lords, for they possessed and held their land. The sub-tenants merely had a right to occupation. There was fragmentation in a spatial dimension (i.e. There were overlapping sets of rights over a particular area of land). This allowed more than 1 person to have an interest in the same land. Development of Doctrine The modern absolute definition of ‘ownership’ simply did not fit the feudal system of land ownership as no one person had absolute title. A freehold was not really ownership. Only the Crown had what came close to being considered absolute rights. The doctrine of tenure allows overlapping rights over one piece of land because of the subinfuedation. The process eventually became too cumbersome, and a statute was created to reduce the difficulties that arose including: 1. It permitted every free man to alienate his interest in the whole or part of his land without his lord’s consent; 2. It prevented further subinfeudation to occur (Substitution still remained). If A held land as a tenant-in-chief (a landlord) from the King, and gave land to B, B would become the tenant-in-chief for that parcel. Earlier, A remained tenant-in-chief, while B was in an awkward quasi-tenured position. Summation There are two building blocks of English land law: 1) Doctrine of tenure 2) Doctrine of estates The doctrine of tenure is now irrelevant, but shaped the doctrine of estates. THE CONCEPT OF LAND TENURE The term land tenure is derived from the Latin word tenure which means â€Å"to hold.† Tenure defines the social relations between people in respect of the object of the tenure, in this case land. Tenure also defines the methods by which individuals or groups acquire hold transfer or transmit property rights in land (Ogolla, Mugabe 1996). Property rights may include a variety of different rights for example to build, to use, to transfer, to mine etc. the rights may be transferred or transmitted either together or individually at the discretion of the holder with or without limitations depending on the tenure system. Formal rules of tenure therefore define the nature and content of property rights in land or other resources and the conditions under which those rights are to be held and enjoyed. LAND TENURE SYSTEMS IN KENYA Interests in land broadly fall into two groups. Rights and that are held through traditional African systems, and rights that derive from the English system introduced and maintained through laws enacted by colonial and then the national parliament. The former is loosely known as customary tenure bound through traditional rules (customary law). The latter body of law is referred to as statutory tenure, secured and expressed through national law, in various Act of parliament e.g. Government Land Act (cap 280), Registered Land Act(cap 300), Registration of Titles Act (cap 281), Trust Land Act (cap 288) of the Laws of Kenya. a) Customary Land Tenure This refers to unwritten land ownership practices by certain communities under customary law. Kenya being a diverse country in terms of its ethnic composition has multiple customary tenure systems, which vary mainly due to different agricultural practices, climatic conditions and cultural practices. However most customary tenure systems exhibit a number of similar characteristics as follows: First, individuals or groups by virtue of their membership in some social unit of production or political community have guaranteed rights of access to land and other natural resources (Ogendo 1979). Individuals or families thus claim property rights by virtue of their  affiliation to the group. Secondly, rights of control are rested in the political authority of the unit or community. This control is derived from sovereignty over the area in which the relevant resources are located. Control is for the purpose of guaranteeing access to the resources and is redistributive both spartially and intergenerationally. Its administrative component entails the power to allocate land and other resources within the group, regulate their use and defend them against outsiders (Ogola, Mugabe 1996). Thirdly, rights analogous to private property accrue to individuals out of their investment of labour in harnessing, utilizing and maintaining the resource. Thus the present cultivator of some piece of land has the greatest rights to it. These rights transcend mere usufruct and encompass transmission and in some communities transfer (Elias 1956). Lastly, resources that do not require extensive investment of labour or which by their nature had to be shared, for example, common pasturage are controlled and managed by the relevant political authority. Every individual member of the political community has guaranteed equal rights of access thereto. The regulatory mechanisms imposed by the political units such as exclusion of outsiders, seasonal variations in land use and social pressure ensured sustainable resource utilization. This mode of ownership in Kenya is currently governed by the Trust Land Act by which all land in the rural areas which is neither government land nor individually owned is vested in the county council in trust for the residents living there. b) Statutory Tenures i) Freehold Tenure This tenure confers the greatest interest in land called absolute right of ownership or possession of land for an indefinite period of time, or in perpetuity. Freehold land is governed by the Registered Land Act (RLA) Cap 300 of the Laws of Kenya. The Act provides that the registration of a person as the proprietor of the land vests in that person the absolute ownership of that land together with all rights, privileges relating thereto. A freehold title generally has no restriction as to the use and occupation but in practice there are conditional freeholds, which restrict the use for say  agricultural or ranching purposes only. ii) Leasehold Tenure Leasehold is an interest in land for a definite term of years and may be granted by a freeholder usually subject to the payment of a fee or rent and is subject also to certain conditions which must be observed. e.g. relating to developments and usage. Leases are also granted by the government for government land, the local authorities for trust land and by individuals or organisations owning freehold land. The maximum term of government leases granted in Kenya is 999 years for agricultural land and 99 years for urban plots. There are few cases of 33 years leases granted by government in respect of urban trust lands. The local authorities have granted leases for 50 and 30 years as appropriate (GOK 1996). c) Public Tenure This is where land owned by the Government for her own purpose and which includes unutilised or unalienated government land reserved for future use by the Government itself or may be available to the general public for various uses. The land is administered under the Government lands Act Cap 280.These lands are vested in the president and who has, normally through the Commissioner of Lands, powers to allocate or make grants of any estates, interests or rights in or over unalienated government land. Categories of government land include forest reserves, other government reserves, alienated and unalienated government land, national parks, townships and other urban centres and open water bodies(GOK 1996). The Government Lands Act does not contain any notion of trusteeship by government of the land to her people. Indeed the government at times acts as a private owner and allocates parcels to those in its favour. d) Other Interests These include: – Reservations of other government or trust land to government ministries, departments or parastatals for their use. – Minor interest such as easements, wayleaves or temporary occupation licences. – Non formalised defacto tenure by which people, individually or in groups invade and occupy other people or government land particularly in major urban centres of Nairobi, Mombasa and Kisumu. OWNERSHIP Land has been described as ‘those parts of the earth that are capable in law of being owned and are within court jurisdiction. Generally , ownership of land includes the airspace above it and the sub soil below it (a coelo usque ad centrum; from the heaven to the centre of the earth).Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to â€Å"hold† the land Ownership is the exclusive right to use, possess, and dispose of property, subject only to the rights of persons having a superior interest and to any restrictions on the owner’s rights imposed by agreement with or by act of the third parties or by operation of law. Ownership may be; Corporeal- of material thing which may itself be a movable or an immovable Incorporeal- of something tangible e.g. copyright  Ownership involves enjoyment of a number of rights of the property. The owner can alienate some of those rights while still retaining others; e.g. an owner of land may grant a right of way or a patent owner may grant a license to manufacture the patented goods. Ownership may be held by different persons for different interests e.g. when a freehold owner grants a lease or when land is held on a trust of land for persons with interest in succession to one another. More than person can own property at the same time they maybe either joint owners with a single title to the property or owners in common each having a distinct title in the property that he can dispose of independently. A person may be either the legal and beneficial owner, or the legal ownership of property maybe separate from the beneficial ownership, which is the right to enjoy the property as when a trustee owns the legal estate in land for the benefit of another. A legally valid transaction may confer specific rights to use, posses, or deal with property without conferring ownership of it e.g. a contract may appoint a person as the owner’s agent for the sale of specified land. BRIEF HISTORY OF LAND TENURE Historically in the system of feudalism, the lords who received land directly  from the Crown were called tenants-in-chief. They doled out portions of their land to lesser tenants in exchange for services, who in turn divided it among even lesser tenants. This process—that of granting subordinate tenancies—is known as subinfeudation. In this way, all individuals except the monarch were said to hold the land â€Å"of† someone else. Historically, it was usual for there to be reciprocal duties between lord and tenant. There were different kinds of tenure to fit various kinds of duties that a tenant might owe to a lord. For instance, a military tenure might be by knight-service, requiring the tenant to supply the lord with a number of armed horsemen. The concept of tenure has since evolved into other forms, such as leases and estates. MODES OF OWNERSHIP AND TENURE Here are a great variety of modes of land ownership and tenure: Traditional land tenure. For example, most of the indigenous nations or tribes of North America had no formal notion of land ownership. When Europeans first came to North America, they sometimes simply disregarded traditional land tenure and simply seized land; more often, they accommodated traditional land tenure by recognizing it as aboriginal title. This theory formed the basis for (often unequal and often abused) treaties with indigenous peoples. Ownership of land by swearing to make productive use of it. In several developing countries as Egypt, Senegal, this method is still presently in use. In Senegal, it is mentioned as â€Å"mise en valeur des zones du terroir†and in Egypt, it is called Wadaa al-yad. Allodial title, a system in which real property is owned absolutely free and clear of any superior landlord or sovereign. True Allodial title is rare, with most property ownership in the common law world (Australia, Canada, Ireland, New Zealand, Kingdom, United) being in fee simple. Allodial title is inalienable, in that it may be conveyed, devised, gifted, or mortgaged by the owner, but it may not be distressed and restrained for collection of taxes or private debts, or condemned by the government. Feudal land tenure, a system of mutual obligations under which a royal or noble personage granted a fiefdom ,some degree of interest in the use or revenues of a given parcel of land, in exchange for a claim on services such as military service or simply maintenance of the land in which the lord continued to have an interest. This pattern obtained from the level of high nobility as vassals of a monarch down to lesser nobility whose only vassals were their serfs. Fee simple ; under common law, this is the most complete ownership interest one can have in real property, other than the rareAllodial title. The holder can typically freely sell or otherwise transfer that interest or use it to secure a mortgage loan. This picture of â€Å"complete ownership† is, of course, complicated by the obligation in most places to pay a property tax and by the fact that if the land is mortgaged, there will be a claim on it in the form of a lien. In modern societies, this is the most common form of land ownership. Land can also be owned by more than one party and there are various concurrent estate rules. Native title ; in Australia, native title is a common law concept that recognizes that some indigenous people have certain land rights that derive from their traditional laws and customs. Native title can co-exist with non-indigenous proprietary rights and in some cases different indigenous groups can exercise their native title over the same land. Life estate ; under common law, this is an interest in real property that ends at death. The holder has the use of the land for life, but typically no ability to transfer that interest or to use it to secure a mortgage loan. Fee tail ; under common law, this is hereditary, non-transferable ownership of real property. A similar concept, the legitime, exists in civil and Roman law; the legitime limits the extent to which one may disinherit an heir. Leasehold or rental ; Under both common law and civil law, land may be leased or rented by its owner to another party; a wide range of arrangements are possible, ranging from very short terms to the 99-year leases common in the United Kingdom, and allowing various degrees of freedom in the use of the property. Rights to use a common, which may include such rights as the use of a road or the right to graze one’s animals on commonly owned land. Sharecropping, under which one has use of agricultural land owned by another person in exchange for a share of the resulting crop or livestock. Easements, which allow one to make certain specific uses of land that is owned by someone else. The most classic easement is right-of-way, but it could also include (e.g. the right to run an electrical power line across someone else’s land. TITLE Definition of title a) The coincidence of all the elements that constitute the fullest legal right to control and dispose of property or a claim. b) The aggregate evidence that gives rise to a legal right of possession or control. c) The instrument, such as a deed, that constitutes this evidence. d) Something that provides a basis for or justifies a claim e) Legal right to possession of legal property Title is the set of facts upon which claim to a legal right or interest is founded, title can exist even when there is no pre-existing legal interest or right vested in a person who claims he has title. Professor Ray Goode distinguishes title and interest in this manner: A persons’ interest in an asset denotes a quantum of rights over which he/ she enjoys against others’, his title measures the strength of the interest which he enjoys in relation to others. Title to a proprietary interest can be either relative or absolute. An absolute title is one that is indefeasible in the sense that there is no-one else who can point to a better title in respect of the same object. The essence is basically that there isn’t anyone with a better title. Instances of proving absolute title: i. Simplest is through creation of something out of nothing for example an author of a book has absolute title over the said book because he wrote it and hence created something from nothing. ii. Manufacturing of something in the absence of other evidence of manufacture of the said thing being manufactured but any one other then he claiming he manufactured it for example coca-cola have absolute products over coca-cola for no one other then they have the correct formula of creating the fizzy drink. iii. Registration of such said title, gives you absolute title. This means that if one is to buy a piece of land and it is properly registered in the proper procedure then he has absolute title to the land A relative title is one that can be defeated by a person showing that he or  she has a better title to the thing It follows from the definitions’ of title that two or more persons may have independent legal interests in the same thing. For example, both a true owner of an asset and a person with mere possession with the intention to control can have absolute legal interests in the asset. This legal interest is enforceable against third parties by both the true owner and a possessor. Whilst they both have identical legal interests, they have titles that are different in nature. The true owner has a much stronger title than a mere possessor of the chattel. A true owner has an indefeasible title whereas the possessor has a mere relative title. The strength of the true owner’s title is greater because it cannot be defeated by anyone so long as the true owner has an intention to control the asset. The title of the possessor is liable to be defeated by the true owner, and thus, whilst he has a legal interest, his title is a relative one. There are different ways that one can take up a title, this are the ways: Sole Owner Taking title as sole owner means that only one person holds title. He or she is the sole owner of the property and no one else needs to be considered. Tenants In Common â€Å"Tenants in Common† means that the only thing the owners have in common is tenancy in the property. The property may have 2 or more owners and they may be related or unrelated. What is essential to note is that the percentage of each owner may be sold or willed without the permission of the other owners. For instance, if both John and Bob own a piece of property and John dies, the percentage of ownership of John goes to John’s heirs, not to Bob. Tenants in Entirety â€Å"Tenants in Entirety† is reserved for married couples only. This means that you own the property as one. If something happens to either one of you, the other person automatically keeps title to the property. Joint Tenancy â€Å"Joint Tenancy† means that each of you owns the property jointly. When you take title as Joint Tenants, you’ve agreed to the right of survivorship to the title of the property. This means that if one of you passes away, the other gets the property. It also means that one owner cannot sell or will the property without the other owner’s consent. For instance, if owner John wants to sell the property, then co-owner Bob will have to agree to that. Trust A popular trend is taking title as a trust. This means that the trust, not you, owns the property. This may protect your asset in the event of litigation Registration of title is made out by the fact that it offers cheap and expeditious insecure methods in property dealings which are in sharp contrast to the position in the unregistered system which was thought to be costly, disorganized insecure and complicated. Its principle objective is to replace the traditional and registered title method with a single established register which is state maintained and therefore conclusive and authoritative as to the details or particulars set out therein. It is precisely because of that that it is credited in eliminating wasteful burden placed on potential purchasers under the unregistered system which requires them to separately investigate titles to assure themselves that it is a good title that can pass and which is free from any hidden claims which may be adverse to their interests. Since it is state maintained and operated, the title registration system enjoys all the advantages that are unavailable under the registration of the deed system which is not very different from the unregistered system. Unlike the registration of the deed system the registration of title system has the capability of investing secure titles in all persons in whose favour such registration may be effected. It is further regarded as final authority on the correct position regarding any registered land. It is also cheap and expeditious in terms of facilitating various transactions regarding registered land. State indemnity is available for any losses that may be incurred and so it makes conveyance very simple. DOCTRINE OF ESTATES Definition What is an Estate? Black’s Law Dictionary defines an Estate as â€Å"The amount, degree, nature, and quality of a person’s interest in land or other property; esp., a real-estate interest that may become possessory, the ownership being measured in terms of duration.† These are interests projected on the plane of time so as to be able to be capable of quantification in terms of duration. An estate must be distinguished from Tenure, which is concerned with the quantity of estate. Tenure as it is basically refers to a set of conditions upon which an estate interest in land may be held. Hence, the relevant question is how much and not for how long, the latter being applicable to the estate. What is the Doctrine of Estates This is an old English rule that a person cannot own land, but can merely own an estate in it, authorizing the person to hold it for some period of time. The Doctrine Of Estates And The Rise Of The Fee Simple There are two elements to the doctrine of estates, corresponding to two ways in which estates may be classified: (1) Duration: An estate in the land is a time in the land or the land for a time so land can be split into slices of time. Illustration Simpson imagines a cake – the whole cake is the fee simple (time in land without end) but slices of cake can be taken out and passed to another; e.g. an estate for life, then get the cake back. This is a present right to present enjoyment. Case Law Walsingham Case1 (2) Time of enjoyment: Not only may the right to seisin be cut up into slices of time, but there may also be a present (alienable) right to a future enjoyment, when the person with the life estate has died. This is a present right to future enjoyment (but that right can still be transferred now to another); to get the cake back in the future. History It was formally known as the doctrine of tenure that concentrated on the quality of interests in land. It has its origin in the medieval theory in English law. After the Norman Invasion of 1066, the king acquired an ultimate ‘radical’ title to all the land in England (the government has similar title in Kenya). It followed that all subjects occupied their land on terms of grant acquired ultimately from the charity of the crown. The King determined who got the best prince for land depending on your benefit to him. (Benefits included service as Knights in his army, produce from the land, service to the Crown as well as other shows of fealty.) In such an arrangement it wasn’t clear what a tenant could say he ‘owned’ but answer was eventually found in the doctrine of estates. This doctrine gave expression to the idea that each landholder owned not land but a slice of time. Each estate comprised of time related segments- a temporal slice- of the rights and powers exercisable over the land. Types of Estates Estates are divided into two: (a) Free-hold Estates (b) Less than free-hold Estates (Lease-hold) Free-Hold Estates Definition Black defines Free-Hold Estates as â€Å"An estate in land held in fee simple, in fee tail, or for term of life; any real-property interest that is or may become possessory.† Bouvier defines free-hold estates as â€Å"An estate of freehold is an estate in lands or other real property, held by a free tenure, for the life of the tenant or that of some other person; or for some uncertain period. It is called liberum tenementum, frank tenement or freehold; it was formerly described to be such an estate as could only be created by livery of seisin, a ceremony similar to the investiture of the feudal law. But since the introduction of certain modern conveyances, by which an estate of freehold may be created without livery of seisin, this description is not sufficient.† (The term livery of seisin means simply  Ã¢â‚¬Å"transfer of possession†: livery means â€Å"delivery† and is from the Old French livrer, and seisin means â€Å"possession† and is from the Old French saisir or seisir. The concept behind livery of seisin, therefore, was the symbolic transfer of the possession of land. ) Summarily, this is an interest in land that a particular person holds and it is usually for an unlimited period of time and is passed on to his/her heirs according to the type of free-hold estate the owner had contracted into. TYPES OF FREE-HOLD ESTATES There are three types of Free-Hold Estates: (a) Fee-Simple Estate (b) Fee-Tail Estates (c) Life Estates A. Fee-Simple Estate Definition â€Å"Fee† refers to estates of inheritance while the word simple connotes possession by the heirs generally. Originally this was an estate which endured for as long as the original tenant or any of his heirs survived. ‘Heirs’ comprised any blood relations, although originally ancestors were excluded; not until the Inheritance Act 1833 could a person be the heir of one of his descendants. Thus at first a fee simple would terminate if the original tenant died without leaving any descendants or collateral blood relations (e.g. brothers or cousins), even if before his death the land had been conveyed to another tenant who was still alive. However, by 1306 it was settled that where a tenant in fee simple alienated the land, the fee simple would continue as long as there were heirs of the new tenant and so on, irrespective of any failure of the original tenant’s heirs, Thenceforward a fee simple was Virtually eternal.† 2 The estate in fee simple is the largest estate known to the law, ownership of such an estate being the nearest approach to ownership of the land itself which is consonant with the feudal principle of tenure, It is ‘the most comprehensive estate in land which the law recognises’; it is the ‘most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law’, Traditionally, the fee simple has two distinguishing features: first, the owner (‘tenant’ in fee simple) has the power to dispose of the fee simple,  either inter vivos or by Will; second, on intestacy the fee simple descends, in the absence of lineal heirs, to collateral heirs to a brother, for example, if there is no issue,†3 All fee simple estates in Kenya whether by initial grant or by conversion of long leases can be traces ultimately to the Crown Lands Ordinances of 1902, 1915 and the Government Lands Act4. Accordingly, their radical titles remain vested in the State. Accordingly, to H.W.O Okoth Ogendo5, the only practical implication of such conclusion is that where the fee simple cannot pass due to failure of issue, the estate will escheat to the State as the ultimate heir of all property rights in land. This is the effect of Section 8(A) (I) of the G.L.A6, which expressly preserves the doctrine. Types of Fee Simple Estates There are three types of fee simple estates: a) Fee Simple Absolute Definition Interests of rights are limited as against others but not as against the State. This means that ownership is exclusively enjoyed by the owner and is indefeasible by anyone other than the State b) Determinable Fee Simple Definition The Estates terminates automatically upon the occurrence of a specified event. Some of the terminologies used are â€Å"so long as†, â€Å"until† â€Å"during† â€Å"while† and others that denote duration. c) Conditional Fee Simple This has a stipulation attached to it by which the Estate may be cut short upon the occurrence of the said event. Some of the terminologies used are â€Å"but† â€Å"if† â€Å"on condition that† â€Å"provided that†. In Free-hold Estates is known as the â€Å"grantor† while the person being given the estate is known as the â€Å"grantee†. With Fee Simple Estates, there are certain terms used by the partakers of a Fee Simple Agreement such as: The person in possession, in remainder, in reversion: â€Å"In possession†: This denotes the person enjoying the property at that point in time â€Å"In Remainder† :This denotes the person waiting for his/her turn to enjoy the estate(s) â€Å"In Reversion†: This denotes the grantor who is waiting for the land to revert to him/her. B. FEE TAIL Fee here refers to a person’s hers/inheritors while â€Å"Tail† connotes that the land passes on to specific heirs based on gender, trait or other parameter as may be specified by the grantor. It is essentially an estate that is heritable only by specified descendants of the original grantee, and that endures until its current holder dies without issue. C. Life Estates pur autre vie (For the life of another) Here the estate is determined by a particular life,it could be that of the grantee or that of another individual for example the spouse. life estate (1888) A life estate for which the measuring lite – the life whose duration determines the duration of the estate – is someone’s other than the possessor’s. This is an estate, which subsists for the life of another and not of whom the property rights are/were vested. Thus if property is vested in A for the life of B, the estate will last for as long as B lives. But if B dies before A, the property reverts to B, the settler.7 The Kenyan position The foregoing classification of rights and interests in property has been imported/ into or inherited by Kenya, albeit with a few qualifications i.e. the fee tail estate is not relevant in Kenya. Accordingly we only have the fee simple estate. The fee tail estate disappeared in 1942 when the colonial government enacted the Trust of Land Act. This enactment was with one object – to abolish settlement. A settlement was a devise used in England to tie up Land within the family and accordingly, to control property. After the life estate, there is a remainder, which reverts back to the donor i.e. the fee simple. For continuity, the donor can transfer the property to another and another and eventually a tail, which however, will still have a reminder, which will revert to the donor. This situation was abolished by the Trust of Land Act8. This act defined a settlement as an attempt to create a settlement without exploiting the full estate i.e. The Fee Simple. Under the act, if a person attempts to do so, whatsoever is done will be converted  into a trust for sale. A settlement will be converted by Cap 290 into a trust. An equitable interest is an interest that lies behind a trust since it creates a settlement. A trustee can always dispose of the settlement subject to the rules of the trust. The Kenyan position is further made advent of the Absolute estate. This is purely a creature of the R.L.A9. Accordingly, the absolute estate under the R.L.A supersedes the fee simple estate existent under the ITPA. However its worth noting that under the ITPA, the fee simple estate remains to be the largest estate. We still have in Kenya, the customary estate i.e. an estate in land defined by customary law

A Debate on Political Philosophy: Hamilton Versus Jefferson Essay

In the late 1700s to the early 1800s, the United States was in need of a political philosophy that interpreted the Constitution loosely, avoided possibly catastrophic wars, and built up the economy in the easiest and most efficient way possible, all which were found best in Alexander Hamilton. Hamilton believed that the time called for a loose interpretation, or construction, of the Constitution. He and his Federalist followers invoked the idea of â€Å"elastic clause†, a way in which the people could bend exactly what the Founding Fathers were saying to help make it apply to the problems of the time. See more: Foot Binding In China essay The nation and her Constitution were still young and growing, and the ability to form the government as the country progressed was essential to having any national growth at all. Jefferson, on the other hand, believed in a strict construction of the Constitution and the rights of individual states, not federal unity like Hamilton did. Unfortunately, it was clear to many that the rights of individual states, similar to the states’ rights that they had experienced under the Articles of Confederation, were not making the nation stronger, but instead getting each state into more trouble, politically and economically. Foreign affairs also impacted why Hamilton’s Federalist philosophy worked for the time. As the United States was just coming out of a war, we were weak: militarily, economically, and politically. The last thing that we needed was to enter into the French Revolutionary War that held enormous stakes. The Jeffersonians, however, favored honoring the 1778 French-American Alliance that we had made, in order to repay them for helping us win our freedom, even though the French had never officially called on America to honor the alliance. George Washington, sensing that war would be too much for such a fragile nation, issued the 1793 Neutrality Proclamation warning Americans not to be partial to either side, so America would be better protected. Hamilton’s economic policies and financial system was also the most effective way to build the new economy up. Hamilton’s policies were shaped to favor the wealthy, but in such a way that the wealthy would lend the government money and give it political support, which would then cause the federal regime to strive, higher classes to fatten and grow with new wealth, and prosperity to trickle to the masses. Hamilton believed in forming a national credit out of all the states debts, as well as creating a Bank of the United States to have the government support itself in stock. Jefferson believed, contrary to Hamilton’s more â€Å"urban† views of economic progress, that rural and private farming would be the fairest way to build up the economy – from the bottom classes up. However, this would have been a very time consuming process and was therefore not suited for the infant America, who needed to grow quickly to find its place in the rest of the world. Jefferson also thought a Bank of the United States was unconstitutional and forbidden by the Founding Fathers instructions in the Constitution. However, Hamilton proved that the Constitution permitted it by showing how the Constitution stipulates that Congress may pass any laws â€Å"necessary and proper† to carry out the powers vested in the various government agencies, including the powers to collect taxes and regulate trade, therefore making a communal bank for the nation ideal and very beneficial to building and supporting an economy. In today’s American, however, Jefferson’s philosophy would be much better suited. Today, it seems as though we have almost lost track of what the Founding Fathers wanted for this country, so going back to a stricter construction of the Constitution would stop many of the questionable laws passed thanks to an overly bendable elastic clause. Also, since the United States has been caught up in meddling in so many other nations’ political affairs as of late, we need to be reminded of honoring our alliances and keeping an open mind when dealing with other countries that are in a current struggle. Now that we are an experienced nation in how to achieve and maintain independence, we are strong enough to help other countries do the same, although we would not have been in 1789 for the French Revolution. Finally, today’s America has a very strong and stubborn upper class that, much of the time, promises to allow profit to trickle through to the extremely large middle class but does not follow through with those plans. Since it is too hard to work with the upper class to give prosperity to the lower classes, using Jefferson’s philosophy of building up from the bottom, though it make take a while, will eventually work and make the American more equal. Overall, Hamilton’s ideas of a more loose construction of the Constitution, caution when it came to foreign affairs, and working through the wealthy to give prosperity to all Americans were well suited to the late 1700s and early 1800s. However, now that times are different, Jefferson’s ideas are more applicable to our country’s needs of a more regulated government, more positive foreign affairs and well thought out foreign policies, and an equal economy that starts with helping the lower and middle classes to expand and grow in their own way.

Essay on Congress

AP Essay- Congress The framers of the Constitution created a bicameral legislation where there were two chambers of congress made. There was the Senate and the House of Representatives and these two chambers split the necessary duties that congress needed to fulfill. The framers of the Constitution chose a bicameral legislature because they did not want all powers of the government concentrated in a single government institution as they would have been if a unicameral legislature was used. They feared it would lead to rule by oppressive or impassioned majority. They believed that a bicameral legislature would balance powers in congress so that neither chamber would ever gain tyrannical power. When making congress, the framers also knew that the states were jealous of their independence and would not consent to a national constitution if it did not protect their interests and strike a reasonable balance between large and small states. There were many disputes between small and large states on how representation in congress should be gained by delegates at the Constitutional Convention. This was the reason a bicameral legislature was created, and this was known as â€Å"The Great Compromise†. This gave small states equal representation in the Senate and large states their proportional representation in the House. The House of Representatives is the lower house and it contains 435 members. Members are chosen by districts based on population. Some of the House of Representative’s powers are to impeach the president and initiate taxing and spending bills. One unique power the House of Representatives holds is that it gets to select the president for the country if no candidate wins the electoral vote. This was almost the case during the 2000 election between Bush and Gore, the winner was in question after the votes in Florida went uncounted. The framers of the Constitution gave the House of Representatives this power because this chamber is closer to the people than the Senate and is more informed on what the people want. The Senate is the upper house and it contains 100 members. Election time is on a rotating basis and 1/3 of the senate runs every 2 years. Some of the Senate’s powers are to accept or reject treaties and tries the president after the House of Representatives impeaches them (HIST). One unique power the Senate holds is that it can approve presidential appointments such as cabinet positions, Supreme Court judges, federal judges, and heads of agencies. The Senate approved Clarence Thomas as a Supreme Court judge. The framers gave the Senate this power because in order to carry out checks and balances, they wanted the congress to make sure that the President was not holding too much power. By approving or disapproving presidential appointments, the president’s power is weakened and the executive branch does not contain more power than the legislative branch.

Case study Case Study 6 Essay Example | Topics and Well Written Essays - 750 words

Case study Case Study 6 - Essay Example The trial period of the 59 participants, who at least managed to decide on attempt at quitting, serves to realize ‘quality life’ objective in the sense that this might leave a chance to induce the smoker to consider the application in the future. Quality long life, by all means, appeals to the attention especially of those whose unbreakable chain habit is up to seek serious and thorough remedy. Program experience in its efficiency allows choices to be contemplated upon with enough duration so that each participant’s response to objective through behavior is monitored. There is then a way of determining whether the working objective or goal set is attainable and up to which degree, to enable assessment of the evaluation procedure itself. Reduced insurance cost is rather indirectly pertained to as one of the main targets but while this projected benefit earns returns on savings for the company, it would be able to sustain other areas that facilitate improvement of its services to all employees. Because smoking cessation program promotes health restoration and long life, this affects an individual’s well-being and soundness at work and with any other physical activities outside. Thus, the acquired goal effect once the smoker, on quitting, does not yield to withdrawals until the evaluation is completed, would have him develop consistent patterns of increased productivity and lowered absenteeism. The goal to render smoking workers to establish reversed habit and cure any existing ailments caused by the old vice, in the process, has made the hospital become capable of adjusting with campaign cost given that the expected savings from each participant is a function of age according to published research (Posavac). Gradually thus, the implementation of the program across-the-board realizes unforeseen investments for the company besides the sole aim to lead hazardous frequencies of corporate smoking to cessation and other healthy occasions

Trategic Marketing Plan Essay Example | Topics and Well Written Essays - 3500 words

Trategic Marketing Plan - Essay Example Today, thi form of global marketing i referred to a the hybrid trategic approach, or "glocalization." The trategic intent i to ue a centralized trategic "footprint" to build global brand identity, while allowing country-pecific flexibility in the executional or tactical and communication mix deciion. When determining what the trategic implication are for global interactive advertiing under thi form of marketing, one find that the concept of global marketing and global interactive advertiing are no longer utilizing an ethnocentric perpective. Intead, global marketing hould be conidered polycentric or geocentric (outward looking). Global marketing acknowledge and ue trategic intent to coordinate the combination of centralized corporate or brand directive with more localized adaptation in interactive advertiing placement and executional deciion-making. Thu, global marketing doe ugget that reaching global conumer i a trategically intended outcome of a hybrid trategic approach. In more de tail, four main factor included in the above-mentioned approach are product, price, place, and promotion. In other word, when marketing their product, whether locally or globally, firm need to create a ucceful mix of: A product i defined a: "Anything that i capable of atifying cutomer need". Then the product i the central point on which marketing energy mut focu. Finding out how to make the product, etting up the production line, providing the finance and manufacturing the product are not the reponibility of the only marketing function. However, it i alo concerned with what the product mean to the cutomer. Marketing therefore play a key role in determining uch apect a: * the appearance of the product - in line with the requirement of the market * the function of the product - product mut addre the need of cutomer a identified through market reearch. Buinee need to regularly develop new product and market for future growth. A ueful way of looking at growth opportunitie i the Anoff Growth Matrix which ugget that there are four main way in which growth can be achieved through a product trategy: (1) Market penetration - Increae ale of an exiting product in an exiting market (2) Product development - Improve preent product and/or develop new product for the current market (3) Market development - ell exiting product into new market (e.g. developing export ale) (4) Diverification - Develop new product for new market Analyi and Interpretation One thing hould be pointed out i how a product appear in relation to other product in the market, or how importance the brand of a product i. Brand i a mixture of tangible and intangible attribute ymbolized in a trademark, which, if properly managed, permit a buine to differentiate it product and ervice from thoe of it competitor, add extra value for conumer who value the brand and improve profitability. Profeor David Jober identifie even main factor in building ucceful brand: Quality Quality i a vital ingredient of a good brand. Remember the "core benefit" - the thing conumer expect. Thee mut be delivered well, conitently, etc... Reearch confirm that, tatitically, higher quality brand achieve a higher market hare and higher profitability than their inferior competitor. Poitioning Poitioning i about the poition a brand occupie in a

The Great Gatsby, Animal Farm or When I Whistle Essay

The Great Gatsby, Animal Farm or When I Whistle - Essay Example In Animal Farm, Napoleon is supposedly successful in the management of his farm, but fails to create the utopian society he envisioned because of his own fatal flaw, the desire for material comforts. Through these characters, both Fitzgerald and Wells are able to illustrate how a fatal flaw in the individual can contribute to their own downfall even while they make a more sweeping comment regarding the societies in which they were living. Both Jay Gatsby and Napoleon are seen as tremendous successes at some point in their life after building themselves up from dirt level. Gatsby has re-created himself from the son of a poor country man to a millionaire in New York through a long series of practiced moves designed to win him the girl of his dreams, Daisy. Napoleon has worked himself up literally from the dirt of his pigpen to the leader of a successful farm through a series of practiced moves designed to attain the equality of species he envisions. There is a moment in each story when each character seems to attain everything they have dreamed of. Gatsby hears Daisy tell him she loves him and envisions the two of them beginning a new life together. Napoleon wins the respect and admiration of the surrounding farmers as his farm proves to be more successful than any of the others around. Their use of skillful rhetoric to support their actions and desires is performed so well that it takes a long time before the truth is seen by readers and by other characters and even then, it’s only revealed slowly through the narration between the characters and the actions they undertake. This is illustrated most clearly in Nick’s summary of Gatsby’s last evening, â€Å"He had come a long way to this blue lawn, and his dream must have seemed so close that he could hardly fail to grasp it. He did not know that it was already behind him, somewhere back in that vast obscurity

Gas turbine engine basics Coursework Example | Topics and Well Written Essays - 2000 words - 2

Gas turbine engine basics - Coursework Example This means that if the exit velocity is maintained at a higher value than free stream velocity, and simultaneously, the engine flow rate (m dot) is kept as high as possible, the high engine flow will produce a high thrust in a turboprop engine. Even though a large amount of air is ingested, the change in velocity is very minimal between the intake and the exit so that the exit velocity is at a low value (Low exit velocity). Due to the large value of m dot, a high thrust is developed. If we denote the free stream conditions by â€Å"0†, the propeller exit conditions by â€Å"1†, core exit conditions by â€Å"e† and core entrance conditions by â€Å"c†, then from the basic thrust equation we get: In Turboprop engine, the mass flow rate through the propeller is much greater than that of core engine(High mass flow ). The mass flow rate entering the core is almost equal to the mass flow rate exiting the core. The exit velocity from the core is almost the same as inlet velocity into the core(Low exit velocity). Hence the thrust equation can be rounded off to get: Components and Purpose: The intake also called the inlet serves three purposes, namely (1) recovering as much of the total pressure of the free air stream required for combustion, from free-stream conditions to the conditions and deliver this pressure to the entrance of fan or compressor, (2) delivering air to the compressor under all flight conditions with minimum turbulence and (3) to have minimum drag. The inlet is generally not defined by any particular part, but is formed by structural support parts which are located in front of compressor. The design of subsonic inlet differs from that of supersonic inlet. In subsonic inlets of engines fitted in nacelles air enters in different streamline patterns at different speeds of operation as shown in Fig-1 (Mattingly,p759). Supersonic inlets are

Business environment Assignment Example | Topics and Well Written Essays - 2500 words

Business environment - Assignment Example The region has long been established as the leading European zone for attracting private investment. In fact, at present it is UK's most successful region for attracting foreign direct investment, and is among the top five in Europe. The West Midlands is the address of nearly 2,000 overseas companies from 34 different nations, employing roughly 9% of the region's workforce - nearly a quarter of a million people. Birmingham itself can boast of almost 300 overseas companies, which employ over 36,000 people. International and famous companies based in the West Midlands include Peugeot, Ford, BMW, Fujitsu, Oracle, Gap, Denso, IBM, NEC and Johnson Controls. A little over the last ten years, the West Midlands experienced real economic growth with GDP increasing by around 29%, an additional 240,000 people in employment, a fall in unemployment rates from 12.1% to below 8% (2000), economic activity rate at par with the rest of the country, an employment rate of around 74% (1998-1999 to 2003), higher than the national rate at the start of the three year period (1998-99) and a higher percentage of employees in high technology sectors than the national average in 2000 (Mitra, 2001). Despite noticeable indicators of development and progress, the West Midlands maintains its status of an under-achieving region. It has under-performed in almost all major areas judging by the economic indicators, if overall performance in the UK is used as a standard. Gross Domestic Product (GDP) per head in 1999 was 6% below the national average in spite of an increase of nearly 2% from 1998. On the Index of Local Deprivation, the West Midlands has two districts in the top 10 and 6 in the top 50 most deprived areas. In 1997, likewise, the West Midlands had the second lowest manufacturing productivity levels. Gross Value Added per GDP per head has stayed around 6% below the national average throughout the 1990s. Since 1990, unemployment rates have remained above the national average. Finally, the number of VAT- registered businesses has fallen faster than the national average. Compared to EU regions similar to the West Midlands (using the GVA metric), the latter is at par with most other regions and slightly below Bourgogne (France). SMEs in the West Midlands Economy With statistical trends elsewhere, small and medium sized enterprises (SMEs) constitute the largest share of all enterprises in the West Midlands. The region is composed of small firms, which would imply that small business activity is characteristic of the region's business and economic scenario. The sectoral spread of the firms portray the profile of the region with its mix of traditional industrial ands agricultural activities, combined with business and financial services. Reflecting overall national patterns, and indeed that of the West Midlands region, no one sub-region has more than two sectors with greater than 20% of the business sites in those sectors. Potential Sources of Support Across the region, Advantage West Midlands is setting up a variety of strategies and business support programmes aimed at motivating and promoting wealth creation and the diversification of the region's economy. Working in alliance with other organisations, the objective is to provide the business support required

African american music and acculturation Essay Example | Topics and Well Written Essays - 1250 words

African american music and acculturation - Essay Example Despite the fact that West African music differed from one region to the other, all cultures within this region shared sufficient features that enabled them to constitute a heritage that was identifiable as African when they were trans-located to the New World (Jackson 25). From the accounts given by early traders and explorers, it has been deduced that music was a lifestyle of these West Africans. It was used to enhance rituals, worship, provide recreation, and as a means of communication. These cultures shared a characteristic feature in integrating music with dramatic elements and dance. When they were enslaved and stripped of their community and families, their rich stories, customs, traditions, and music remained with them and were passed the new generation. On arrival in the new world, they were designated as heathens and the clergymen of the time were compelled to convert the Africans to Christianity. This religious conversion acted as the first instance in which the Africans were exposed to European music with the singing of hymns and psalms (Jackson 25). They often gathered, on Sundays, to make music, sing, and dance. The first all the black worship churches were established in the 18th century with Reverend Allen Richard realizing the importance that music held for the people, publishing a hymnal for use by the Africans. These black churches provided the people with opportunities earlier denied to them, for instance the experimentation with religious music from set pieces to formal anthems and lowly spirituals (Jackson 27). The 18th century also saw the establishment of the camp meeting that was an interracial revival with all black meets being sponsored by the black churches afterwards. Camp members took to adding their own choruses or verses to traditional European hymns with the first documentation of the ring shout, an African religious dance ceremony with European infected lyrics, happening here. A number of white American writers described this ring shout in the late 19th and early 20th centuries, such as Paul Marshall, in his description of a dance with European melodies accompanied by movement of feet that glided forward without leaving the ground (Jackson 28). To the accompaniment of European hymnals with added verses and choruses, the dancers would do a flat-footed glide that was punctuated by stamping, an African dance style. The influx of free blacks and slaves from Santa Domingo in 1804 during the Haitian Revolution carried with it the Voodoo practices. However, it is believed that these were in existence much earlier in Louisiana as an institutionalized ritual worship cult movement since there had been importation of slaves as early as the 16th century from the West Indies. These ceremonies were centered upon the worship of Damballa the snake god, also called Da, via dancing, singing, and spirit possession. One myth held by the Dahomeans held that Papa Legba was the chief of all the Voodoo gods; he became the first god to master the skill of music and that all human musicians took after him and were considered his offspring. The connections between papa legba and blues and jazz musicians have been found to be far reaching and complex (Jackson 36). In fact, there is very little doubt that Papa Legba has morphed into Pa Pa La Bas when

Why Are Esl Students Left Behind Essay Example for Free

Why Are Esl Students Left Behind Essay Andrew Duffy and Grace Chen explore why immigrant students who speak English as a second language face long odds in becoming high school graduates in North America in the following articles: â€Å"Why are ESL students left behind? † and â€Å"Inclusion or Exclusion? The ESL Education Debate. † According to a University of Calgary professor, Hetty Roessigh(1994), ninety-three percent of the ESL students who arrived as beginners in English were likely to drop out from high school. (para. ) Additionally, they face many obstacles such as dealing with the difficult language that they encounter in textbooks and cannot translate their academic ability into decent marks on written tests. (Roessigh, 1994, para. 11) In the article â€Å"Why are ESL students left behind? † written by journalist Andrew Duffy in 2004, he examines the cause and effects of English as a second language in education. By having different perspectives of the professional researchers of ESL studies as evidence, the author discusses the disadvantages that students faced. â€Å"For every one of the ESL kids who makes it, there are hundreds who don’t. (Roessigh, 2004, para. 4) However, in the article â€Å"Inclusion or Exclusion? The ESL Education Debate† written by Grace Chen in April 7th, 2009 for the Public School Review website, discusses how to enhance ESL students learning and at the same time the public schools are coping with reduced funding due to the economic recession. The 2001 national mandate, No Child Left Behind, required that all public schools help ESL students become proficient in English, as both native speaker and ESL students are mandated to meet State and National achievement standards. The Multicultural Education Journal) Nevertheless, when fifty percent of school-age children will have non-English speaking backgrounds by 2020, how do such programs improve ESL students’ English? While analyzing the article â€Å"Why are ESL students left behind? † I question the reliability because it is a secondary source that interprets and reviews the previous findings from the professional researchers. Supporting by Andrew Duffy’s proofs, it is serious that immigrant students who dissatisfy in school would not be able to please in the society. (2004). As a country, we cannot afford continuation of current practices, at the risk of under-preparing a large segment of our workforce for the 21st century. †(Wayne Thomas and Virginia Collier, of George Mason University, para. 48) Simultaneously, the second piece of the article â€Å"Inclusion or Exclusion? The ESL Education Debate† is also a secondary source. Grace Chen (2004) determines the effect of the â€Å"full inclusion system† in California, where students are forced to engage in fluent English classes, even if they have never been exposed to the language before. Secondly, making connection with immigrants’ socio-economic status from the first article and the required additional funding mentioned from the second article, both of the authors have closely the same thoughts which are that the immigrants students need more additional supports. Andrew Duffy provides a strong correlation between the socio-economic status and grades discover by Professor Gunderson which shows that refugees are mainly the people that needs the funding supports. Nevertheless, Grace Chen only discusses the funding that is needed for the ESL students yet the use is unknown. However, neither of the authors expressed their viewpoints in the articles. While Andrew Duffy found evidences supported by different sides of university-level professors, Grace Chen did not give a concrete answer for the debate. Nobody is sure how the inclusion will work out yet they have already reduced funding for the ESL students. â€Å"What is the best approach on behave of all the difficulties facing by the ESL students? †(Grace Chen, 2009, para. 12) As a conclusion, regarding how to defend the needs of all students, I would say â€Å"Why are ESL students left behind? † is more correct than â€Å"Inclusion or Exclusion? The ESL Education Debate. †.

Causes and Effects of Tuberculosis

Causes and Effects of Tuberculosis Tuberculosis is a chronic, infectious and deadly disease caused by Mycobacterium Tuberculosis. Tuberculosis often attacks lungs but it is also known for attacking other parts of the body (extrapulmonary tuberculosis). The infection site of extrapulmonary tuberculosis includes the central nervous system, the lymphatic system particularly in the neck, genitourinary system and bones and joints. People with active tuberculosis often show some of these symptoms: Mycobacteria are found abundantly in habitats such as pond and soil. However, a few are intracellular pathogens to animals and humans. Tuberculosis is transmitted through aerosol route but the transmission can also occur via gastrointestinal route. Coughing, sneezing and spitting by people with active tuberculosis releases droplet nuclei containing the germ which is known as bacilli into the air. The droplet nuclei can remain suspended in the air for up to several hours. Infection only occurs when someone inhales the droplet nuclei. A person needs only to inhale a  treated with existing drugs and medications. To make the condition even worse, new tuberculosis germ (XDR-TB) that is extremely resistant to drugs has been found in US. Now, the governments are focusing more on the preventive measure and at the same time, searching for a possible drug or vaccine that could eliminate the problem once and for all. So, to address this issue, I have focused my research on this question What are current available treatments for tuberculosis? Current Possible Solution With the advancement of technology, mankind had the power in combating with deadly diseases. Tuberculosis, which had killed millions of people in the nineteenth century, was brought under control by using vaccines and drugs. Drug treatments are used extensively in treating people with active tuberculosis. Latent tuberculosis, however, does not require intensive care but merely prescribed medication for several months. Vaccines, on the contrary, are used as preventive measures in areas of higher tuberculosis risk. Apart from that, vaccines are used by healthcare workers, newborns, and travelers who are at constant risk of getting infected by the disease. One of the most commonly used vaccine in prevention of tuberculosis, the BCG vaccine, is discussed below. But, first, I will discuss about the drug treatments. Tuberculosis treated with drugs has a mortality rate of less than 5%. This shows that the current available drugs for tuberculosis are quite effective in treating the disease. Among the common drugs used in tuberculosis treatment are isoniazid, rifampicin, pyrazinamide, and ethambutol. These drugs aim at inhibiting the bacterial activity thus improving the patients conditions. Anti-tuberculosis drugs are classified into three major categories. They are the first line drugs, the second line drugs and the third line drugs. These drugs are classified according to their effectiveness in treating the disease and their availability. The first line drugs are as follows: Ethambutol-EMB or E, Isoniazid-INH or H, Pyrazinamide-PZA or Z, Rifampicin-RMP or R, Streptomycin-STM or S (802 words) There are six classes of second line drugs. These drugs are classified second class because they may be less effective than first line drugs (p-aminosalicylic acid), they may have harmful side-effects (cycloserine) or they may not be available in the developing countries (fluoroquinolones). aminoglycosides: e.g.-amikacin(AMK), kanamycin(KM); polypeptides: e.g.-capreomycin, viomycin, enviomycin; fluoroquinolones: e.g.-ciprofloxacin(CIP), levofloxacin, moxifloxacin(MXF); thioamides: e.g.-ethionamide, prothionamide; cycloserine(the only antibiotic in its class); p-aminosalicylic acid(PAS or P). Other drugs (third line drugs) that may be useful, but are not on the WHO list: rifabutin macrolides: e.g.-clarithromycin(CLR); linezolid(LZD); thioacetazone(T); thioridazine; arginine; vitamin D; R207910. Tuberculosis treatments are often done as combination therapies (except for latent tuberculosis where only one type of drug is prescribed to the patient) because single drug therapy would result in rapid development of resistance which would lead to the failure of the treatment. Besides that, there are other reasons to support the combination therapy. Different drugs have different form of action. For example, PZA is a weak bactericidal but is very effective against bacteria located in acidic conditions. On the other hand, INH is very effective against replicating bacteria. RMP is a good bactericidal and at the same time, has sterilizing effects. This proves that, using combination therapy is effective to counter the disease and at the same time, it would prevent the mutation of the bacteria into drug resistant. Upon infection, tuberculosis bacteria are taken up by the alveolar macrophages and are carried to the lymph nodes where it may be spread to other parts of the body (this is the basis of extrapulmonary tuberculosis). Two to eight weeks after infection, hypersensitivity and cell-mediated immunity develops and suppression of the infection will result in people with good, healthy immune system. People, who are immunocompromised, will develop inflammatory immune response which eventually leads to lung damage. These drugs functions by confining the bacteria and at the same time, since it has antibiotic effects, it will kill the bacteria, thus, improving the patients condition. It would usually take about six months or more for full (1153 words) recovery with 2-3% of relapse rate. Continuation of medication would be recommended by the physician to avoid the problem form reappearing. Isoniazid is one particular type of the drug which is commonly used due to its effectiveness in treating tuberculosis. This medication is best taken on an empty stomach 1 hour before or 2 hours after meals. But it may be taken with food or milk if stomach upset occurs. Take as directed. Do not stop taking this medication without your doctors approval. Stopping therapy early may result in ineffective treatment and the infection could recur. Vitamin B6 (pyridoxine) supplements may be prescribed in addition to this medication to prevent numbness and tingling. Extracted from MedicineNet.com- Isoniazid ORAL (Niazid) side effects, medical uses and drug interaction. Figure 1 Fgure4- Effect of aspirin or ibuprofen administered in combination with isoniazid on lung(a) and spleen(b) log10 CFU in murine tuberculosis. ASP only, aspirin(20 mg/kg of body weight); IBU only, ibuprofen(20 mg/kg); INH only, isoniazid(25 mg/kg); ASP+INH, aspirin and isoniazid(20 and 25 mg/kg, respectively); IBU+INH, ibuprofen and isoniazid(20 and 25 mg/kg, respectively). There is reliable and concrete evidence that isoniazid is effective in curbing the disease. The graph shows clearly that when isoniazid is administered to a patient with murine tuberculosis, it effectively inhibits the progress of the disease. This can be seen when there is zero tuberculous bacterium count when INH is administered. The drug acts in the same way in both liver and spleen. Other drugs, such as ibuprofen and aspirin are used to compare the relative effectiveness of each individual drug. Ibuprofen seems not to interfere with the INH mechanism while aspirin reduces the effectiveness of INH. So, aspirin should be avoided when using drug regime containing INH to prevent it from interfering with INH mechanism. (1447 words) Benefits and Risks of Drug Treatment As with all forms of medications, tuberculosis drugs also pose some side-effects which may cause uneasiness to the patient. The benefits of tuberculosis drug treatments are well known. It effectively reduces symptoms of the disease upon the administration of the medication and in most cases; the drug cures the disease with 2-3% of relapse rate. Drug treatment also decreases the mortality rate significantly; reducing it to less than 5%. This means number of people dying from tuberculosis or tuberculosis related diseases is falling every year. On the other hand, the risks of drug treatments are severe but only in remote cases. This is usually due to the aggravation of the side-effects by the risk factors such as alcohol abuse, history of hepatitis, diabetes mellitus and HIV infection. Increasing age is also a risk factor for the noncompliance to the treatment. The severe forms of side-effects are drug-induced hepatitis, arthralgia, central nervous system toxicity and exanthema. The drug treatments also pose some rather common adverse-effects. These include nausea, abdominal pain, fever, diarrhea and fluid (saliva, tears and urine) discolouration. Table1-Number of side-effects due to isoniazid, rifampin or pyrazinamide followed by final termination of  one of the drugs (n=519) Side-effect Isoniazid Rifampin Pyrazinamide Total Hepatotoxicity 19(4) 8(1.5) 28(5) 55(11) Arthralgia 1(0.2) 12(2) 13(2) Exanthema 6(1.2) 27(5) 33(6) CNS toxicity* 8(1.5) 8(1.5) Nausea 5(0.9) 5(0.9) Others# 7(1.4) 7(1.4) Total 34(7) 8(1.5) 79(15) 121(23) Values are present as absolute number, and percentage in  parenthesis. *:including peripheral neuropathy(n=6) and  seizure(n=2); #:including leucopenia(n=1), fever(n=3) and  severe hyperuricaemia(n=3). CNS: central nervous system. After evaluating both pros and cons of the drug treatment, I feel that the benefits of drug treatment outweigh the risks. Therefore, the risks should not discourage the patient from continuing the medication. The completion of the medication is vital for the full recovery from the disease. Social and Economic Implications of the Disease Tuberculosis is the worlds largest endemic with one third of world population being infected with the disease. And tuberculosis remains the greatest terror in developing nations. This is because the disease causes unbearable social and economic implications to the one infected with the disease. The substantial non-treatment costs of TB are borne by the patients and their  families. These are often greater than the costs of treatment to the health sector.   The largest indirect cost of TB for a patient is income lost by being too sick to work. Studies suggest that on average three to four months of work time are lost, resulting  in average lost potential earnings of 20% to 30% of annual household income. For the families of those that die from the disease, there is the further loss of about  15 years of income because of the premature death of the TB sufferer. Extracted from the Stop Tb Initiative by WHO It is very clear that tuberculosis, left untreated, would result in loss in terms of financial support. Therefore, it is vital for the authority to provide necessary treatment to the patients and, at the same time, they should also work on preventive measures such as awareness campaigns and vaccinations to prevent the spread of the disease. The World Health Organization (WHO) have cited TB treatment as one of the most cost-effective health interventions accessible at a cost of only $10 for every year of life gained. Effectively treating TB will not solve the worldwide AIDS crisis, but it will significantly reduce its burden Dr Piot, Executive Director, Joint United Nations Program on HIV/AIDS On the other hand, a person with tuberculosis would have to live as an outcast. This is very true in the poorer nations of the world where the people do not have enough knowledge about the disease thus exiling the patient from their community. This would result in the patient losing moral support and faith which may ultimately lead to suicide. (2093 words) Alternative Solution Ayurvedic treatment Ayurveda, traditional Indian medication, is also proven to be effective in combating against tuberculosis. Current tuberculosis drug treatments induce unfavourable side-effects such as decreased appetite and liver inflammation. On the long run, it could lead to permanent liver damage. Therefore, combined with ayuvedic medication such as Kutki (Picrorrhiza kurroa), Guduchi (Tinospora cordifolia), Sharapunkha (Tephrosia purpurea) and Kalmegh (Andrographis paniculata) would prevent any damage to the liver and would result in increased efficiency in treating the disease. Tuberculosis of the lymph glands also could cause serious problems. Ayurvedic medicines like Kancnnaar (Bauhinia variegata), Kanchnaar Guggulu and Triphala Guggulu can increase the bodys immune response towards the disease. These ayurvedic medicines when combined with correct drug regimes would effectively fight off the disease and prevent it from relapsing. Ayurvedic medicines are known to increase immune response signi ficantly, thus, making the body to be able to fight the infection. Prevention Methods Vaccination Besides drug treatments, there is another practical approach to eradicate the endemic worldwide. This solution aims at preventing the disease. Vaccination is the best, available solution for most of the contagious disease. For tuberculosis, Bacillus Calmette Guerin (BCG) is the current available vaccine. This vaccine is actually an attenuated strain of live mycobacterium bovis which has lost its virulence after being carefully cultured artificially for many years. This vaccine works by providing natural passive immunity in which the infection with bovine tuberculosis would protect against infection with human tuberculosis. This is the result of memory cells in our body being able to recognize the same type of infection and providing instant protection against the disease. BCG is found to be very effective in giving protection primarily in children aged 3 and below and teenagers aged 14-20. Efficiency of BCG also differs according to geography. The first large scale trial evaluating the efficacy of BCG was conducted from 1956 to 1963 and involved almost 60,000 school children who received BCG at the age of 14 or 15; this study showed an efficacy of 84% up to 6 years after immunization. However, a US Public Health Service trial of BCG in Georgia and Alabama published in 1966 showed an efficacy of only 14%, and did much to convince the US that it did not want to implement mass immunization with BCG. A further trial conducted in South India and published in 1979 (the Chingleput trial), showed no protective effect. Extracted from Bacillus_Calmette-Guerin_Wikipedia-the_free_encyclopedia. Reducing exposure Tuberculosis is directly dependent on the degree of exposure. The more a person comes into contact with the disease, the higher is the chance to suffer from active tuberculosis. Generally, inhalation of minute amount of the bacilli would result in the immune response which immediately inactivates the disease thus preventing it from progressing. However, a direct exposure to a relatively high amount of the bacilli would result in the immune system to be unable to wall off the disease fast enough. This would result in the person developing active tuberculosis although he may not have the history of the disease before. Therefore, visit to places with a high incidence of tuberculosis should be avoided. Furthermore, we should also avoid close contact with people infected by the disease. Apart from that, personal hygiene, and the practice of wearing mask should be cultured in the society to prevent the spread of the disease. On top of that, self-quarantine should be practiced by individual s if they are suspected to carry the infection. Evaluation For the research on this issue, I have used a number of sources ranging from websites to newspaper articles and books. The World Health Organisation official webpage; http://www.who.int/en/ is one of the sources that I have used in my research. I find that this website provides loads of information regarding tuberculosis. This source is definitely trustable as it is the official webpage of a world-recognized organization which is committed to the welfare of the people. The facts and information obtained from this website is valid and reliable under any circumstances because they are up to date. Moreover, WHO have also organized research on this issue and the findings have been reviewed by experts from all over the world. One such research is the Economic Impacts of Tuberculosis. On top of that, I found that a lot of other websites such as http://en.wikipedia.org/wiki/Tuberculosis, http://www.plospathogens.org/article/info:doi%2F10.1371%2Fjournal.ppat.1000600 and http://www.wrongdiagn osis.com/t/tuberculosis/stats.htm have cited WHO in their websites. This proves that WHO is a reliable source of information for this issue. Furthermore, I have evaluated another source http://www.mayoclinic.com/health/tuberculosis/DS00372/DSECTION=treatments-and-drugs and found that there are similarities in terms of facts presented in the website with other renowned websites such as http://en.wikipedia.org/wiki/Tuberculosis_treatment, http://familydoctor.org/online/famdocen/home/common/infections/common/bacterial/120.html, and http://www.nlm.nih.gov/medlineplus/tuberculosis.html. Similar information was also found in the journal Risk factors for side-effects of isoniazid, rifampin and pyrazinamide in patients hospitalized for pulmonary tuberculosis from the European Respiratory Journal. This source, therefore, is trustable because it has a lot of correspondence with other sources.

Analysis of the Bosman Case

Analysis of the Bosman Case The decision of the ECJ in the Bosman case[1] had an extremely significant impact on professional sports within the European Union. As has been pointed out by a number of commentators the decision in Bosman led to an overhaul of the existing transfer rules of club football within Europe. It also had a wider impact on professional sports as a whole as the post-Bosman period witnessed a significant influx of migration of professional athletes within the EU.[2] Within the EU, sport has assumed a special status and forms an integral part of European identity and its culture. The European parliament has coined the term specifity of sports to address the interaction of Community law in the sporting arena and the extent of such an interaction.[3] This interface between sports and community law was first addressed in Welgrave and Koch v Union Cycliste Internationale[4] followed closely by another decision in the case of Dond v Motero.[5] Almost twenty years down the line came the decision in Bosman which clearly elucidated the role of Community law within the sporting arena and in the process reaffirmed and elaborated upon some of the principles discussed in the two above mentioned decisions. The controversy around the Bosman decision stems from the fact that it put an end to the existing transfer process in European football by abolishing player transfer fee system and creating free agency for European footballers. It also brought an end to the existing UEFA Non-National rules. Both the above regulations followed by European clubs were tested against the Community provisions aimed at protection of labour rights and were found wanting. The transfer rules as well as the nationality rule was found to be violative of Article 48 of the Community treaty safeguarding against free movement of labour as well as anti-discriminatory treatment of workers. The significance of the Bosman judgment lies in the fact that it managed to make a significant contribution to the corpus of labour law by emphatically reinstating that sportspersons rights were protected within Community law and also laid down the framework for subsequent judgments which further established the labour rights of pr ofessional sportspersons. The paper will first explain in brief the background in which the Bosman judgment arose. Then paper will delve into the intricacies of the judgment along with some of the most persuasive arguments raised by the parties to the dispute. Then judgment of the court along with the reasoning behind the judgment will be explored. At the outset it has to be mentioned that the paper will only address the issues of transfer rules and nationalily rules which were evaluated on the anvil of Article 48. The ancillary issue of related to Article 85 and Article 86 of the Community treaty would not be addressed. In the next section the paper will explore the extent to which the judgment in Bosmans case contributed in settling the law related to free movement and non discrimination of sportspersons within the EU. In this section of the paper subsequent judgments would also be briefly looked into to describe the establishment and development of the principle of applicability of non discriminatory princ iple within the arena of sports in the EU. Finally the paper will briefly look back at the arguments raised in the Bosman case related to the need for keeping sports outside the ambit of the provisons of Community treaty. In this section existing regulations in England as well as the United States will be looked into to evaluate whether the guidelines laid down in Bosman is in sharp contrast to the sporting regulations existing in those states. Literature Review A Closer Look at the Judgment of Bosman Background and Facts Within the European Union football is played either as an amateur or a professional sport. The structure of professional football comprises of clubs which belong to national associations or federations. The national associations including Belgiums ASBL Union Royale Belge des Societes de Football Association (URBSFA) are members of the Fà ©dà ©ration Internationale de Football Association (FIFA). FIFA is again divided into confederations, UEFA being the confederation which governs football in Europe. As per the rules framed by the URBSFA prior to Bosman case, every player whose contract is expiring must be offered a new Contract by April 26, failing which he is given amateur. The player has the option of accepting or rejecting the contract offer. If the player rejects the contract, he is placed on the compulsory transfer list for a month from 1st may onwards. In this period any club can buy the player from his existing club even without the permission of the existing club by paying certain compensation fee for training which is called transfer fees. On 1st June the period of free transfers begins and in this period a player can be transferred by the mutual agreement of both clubs after the payment of the requisite transfer fees. If the transfer does not take place the clubs are required by URBSFA to offer a contract to the player which is not less than the initial contract of April 26. If this contract is rejected by the player, he is classified as an amateur and has two wait two years to obtain a transfer without the clubs consent. Jean Marc Bosman, player for Belgian club RC Liege, was offered a contract before the expiry of his existing contract which entailed a substantial reduction in his wages, of almost 75%. As a result Bosman refused this new offer and as a consequence was put on the transfer list. During the period of free transfer the French second division club US Dunkerque became interested in employing Bosman. However as per rules for international transfers, the Belgian football association had to pass a transfer certificate to the French football association within a specific time. However in spite of RC Liege and US Dunkerque agreeing upon the amount of transfer fee for a seasons, RC Leige refused to give permission to the Belgian league to pass on the certificate to the French association as they were unsure about the financial solvency of Dunkurque. Thus Bosman was preveted from joining RC liege leading to the initition of a suit in the Court of First Instance in Leige which finally culminated in the landmark decision of ECJ in 1995. Transfer Rules and Article 48 The Courts assuming jurisdiction under Article 177, restated the principle of applicability of Article 48 of the EU Charter to sporting activity as long as there is an the existence of, or the intention to create, an employment relationship. ECJ decided in favour of Bosman and against the respondents namely RC Liege, URBSFA and UEFA. The court ruled on two main issues. Firstly the Court overhauled the existing transfer system by holding that transfer fees for out-of-contract players were illegal and in violation of Article 48 of the EU treaty when the players were moving from one E.U. nation to another. Secondly the court also found nationality clause to be inconsistent with Article 48 and as a result struck it down. Firstly in spite of the arguments raised by the respondents the ECJ found that the right to movement of workers as enshrined under Article 48, which is one of the four fundamental rights guaranteed by the EU charter, was being violated by the existing transfer rules of URBSFA.The Court rejected the contention that transfer rules governs relationship between culbs and does not affect the players. The Court pointed out that transfer fees is a burden which the clubs has to bear and the failure to pay such fees ultimately affects the employment rights of the players.The Court then pointed out that in spite of being contrary to Article 48 the transfer rules could be saved if they could be justified on the grounds of pressing public interest and the principle of proportionality between the means exercised for the objectives sought. However in Court went on to reject the different justifications forwarded by the respondents. The Court found merits in UEFAs goal of maintaining financial and competitive balance but rejected the claim that the transfer rules furthered this object because the existing rules had failed to preserve the level of financial and competitive balance as the rules failed to prevent the richest clubs from securing the best players. The merit of the second justification advanced by respondents regarding UEFAs goall of encouraging the recruitment and training of young talent was also accepted by the Court. However the Court failed to establish the nexus between the transfer system and the achievement of that goal. The Court found no relationship to exist because the amount of a transfer fee is unrelated to the actual cost of training and recruitment, and because receipt of such fees for any particular player is speculative. Finally the argument that transfer fees are acceptable on the grounds that such transfer fees are necessary for clubs to buy players was rejected because the Court o bserved that obstacles to freedom of movement cannot be justified simply on the grounds tat such obstacle was in existence in the past. Finally the Court reaffirmed the opinion of the Advocate general that as alternatives which does not tantamount to an obstacle to freedom of work can be used to achieve the ends sought by the transfer rules and hence the transfer rules has to be struck down. Nationality Principle The ECJ also rules that the 3+2 rule which restricts the employment of footballers of a different EU state is in direct violation of Article 48(2) of the EU treaty which expressly seeks to abolish any discrimination based on nationality between workers of the member states of the EU in relation to employment, remuneration and conditions of work and employment.[6] In this regard the Court further refers to Regulation 1612/68 of the Council which seeks to enforce the provion under Article 48. Finally the court extends this principle of non discrimination to the existing transfer rules by referring to the principle propounded in the Dona case where regulations of sporting bodies were held to fall under this principle of non discrimination. In light of the conflict between the nationality provision of the ransfer rules and Article 48 the Court examines a few possible justifications which can save the nationality rule followed by UEFA. It was argued by the respondents that the nationality rule can be justified on non-economic grounds including maintaining a natural link between the club and the country, the maintenance of a pool of national players and to maintain the competitive equilibrium between the clubs. However the Court referring to the Dona case observed that though non economic objectives may justify the exclusions of certain players in certain fixtures but that principle is not relevant in this case because the 3+2 rule of UEFA applies to all clubs and all matches. Similarly the Court also observed that the nationality rule is not adequate enough to prevent rich clubs from acquiring the richest players. Further the argument regarding the nexus between club and country was also rejected along with the point regarding the maintenance of a pool of national players. Another important point which was argued and rejected by the Court was that the 3+2 rule was developed in cooperation with the Commission and hence should not be struck down. In this case the Court observed that Finally, as regards the argument based on the Commissions participation in the drafting of the 3+2 rule, it must be pointed out that, except where such powers are expressly conferred upon it, the Commission may not give guarantees concerning the compatibility of specific practices with the Treaty Hence if the rule in violation of Article 48 then the fact tht it was made in cooperation with the European Commission will not validate it. Community Law and Principle of Non Discrimination of Foreign Nationals In order to understand the interface between nationality restrictions and its conflict with the EU treaty it is imperative to briefly look into the framework of the EC treaty. Sports per se has not found a place in the present EC treaty, but as has been discussed before, it falls within the competence of EC law when it concerns an economic activity.[7] Article 12 of the EC treaty prohibits discrimination on the grounds of nationality. More specifically discrimination on the basis of nationality of workers is dealt with in Articles 39[8] to 42 of the EC Treaty. However it has to be remembered in this context that the compatibility of a sporting rule with a particular article of the Treaty does not release the rule from the requirement to comply with other Articles of the Treaty.[9] However, the general protection against nationality discrimination can only be invoked in the absence of any specific provision within the treaty. This principle was elucidated in the case of Lehtonen and C astors Canada Dry Namur-Braine v. Federation Royale Belge des Societes de Basketball (FRBSB),[10] where it was observed that Article 39 of the treaty dealing with nationality discrimination of workers will be applicable in the instant case. The Court further observed that Article 12 will only be applicable independently in case of the absence of any specific provision.[11] In light of the above framework of Community law the Lehtonen judgment can be briefly evaluated to determine whether it has also followed the Bosman line and determined whether a sporting rule can be discriminatory within the EC treaty in the absence of objective justification. In Lehtonen different periods of transfers were applicable in the Belgian basketball league of players from Belgian clubs and European clubs. This vires of the transfer rule was challenged to be in violation of the non discriminatory rule enshrined under Article 48. The ECJ observed that Article 48 precludes the application of rules laid down in a Member State by sporting associations which prohibit a basketball club from fielding players from other Member States in matches in the national championship, where they have been transferred after a specified date, if that date is earlier than the date which applies to transfers of players from certain non-member countries, unless objective reasons concerning only sport as such or relating to differences between the position of players from a federation in the European zone and that of players from a federation not in that zone justify such different treatment.[12] In other words the Court followed the line of Bosman and held that Article 48 can act as a threshold which specific sporting regulations have to abide by. However a divergence from the non-discriminatory principle is allowed if they can fulfill the test of objective satisfaction. One more interesting aspect of the non-nationality principle, which has come to the limelight in subsequent cases, is the status of individuals belonging to non-member states who have entered into Cooperative agreements with the EU containing non discriminatory terms in relation to nationality of the members of those states as well as the members of third party states. In the Malaja[13] ruling a Polish basketball player Malaja, challenged the restriction of the French Basketball Federation on the number of foreign players in a club. She based her claim on the basis of an agreement entered by Poland with the EU which ensured non discrimination of Polish workers within the EU. The Council the Etat held that the non-discriminatory principle enshrined in the EU treaty will also be applicable to eastern European states along with Poland who had entered into cooperation treaties with the EU. Another landmark decision in this respect is Kolpak case. Kolpak who was a Slovak national, signed consecutive fixed-term contracts in 1997 and 2000 as a goalkeeper for a second division handball team. However the German Handball Associations imposed a cap on the number of non-EU players who could play in one team. This precluded Kolpak from performing his duties under the employment contract. Kolpak held a valid residence permit in Germany. He took the dispute to the German courts arguing that the agreement between Slovakia and the EU would prevent the Handball association from treating him differentially from other non-EU or German players. The dispute was referred to the ECJ. The Court observed that the agreement with Slovakia did not contain any specific provision safeguarding against anti-discrimination. However the Court compared the agreement with Article 48 of Treaty of Rome and came to the conclusion that the agreement embodied the same principles which have been enshrined u nder Article 48. Hence even in the absence of any specific provision preventing discrimination, the Court held that the principles of non-discrimination established in Bosman can be extended to the present case. However the Court restricted the scope of the non-discriminatory principle by holding that the non-discriminatory principle construed from the agreement will be limited to Slovakian workers already employed in the member states of the EU. The final judgment that has to be mentioned in this regard is the Simutenkov case in which the Courts closely analyzed the Bosman and the Kolpak decisions. The decision of the Court in the Simutenkov mirrored the judgment in Kolpak and extended the principle of non-discrimination to Russian workers employed within the EU. The decision followed Kolpak to the extent that the scope of the non-discrimination principle was restricted to existing workers. In other words it did not bestow a general right on all EU members to circulate freely within the EU. A Closer Look at the Sporting Exception In Bosman, UEFA had argued that sports was always respected within the European Union and owing to the difficulty in extrapolating the economic aspect from football Article 48 should be interpreted in a flexible manner. German Government further emphasized on sports being an expression of European culture and hence should be protected under Article 128 of the Treaty of Rome which seeks to safeguard the national regional diversity of culture. However as has been discussed previously the Court relied on previous ECJ decisions in Walgrave and Dona to determine the extent to which Article 48 of the treaty of Rome can regulate sporting activities. Again as recently as 2006, The ECJ in its decision in Meca-Medina v. Commission[14], reaffirmed the principle of Bosman when they observed that having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 However the approach of the Court in this respect has been severely criticized in certain quarters. Commentators have alleged that the Court has in their zeal to extend economic regulations have failed to recognize the specific nature of sports.[15] However a brief look at sporting regulations and the legal restrictions imposed on such sporting rules in US and UK points to the shortcomings of bestowing unfettered power in respect of sporting activities. The transfer system in British football can be traced as far back as the last decade of the 19th century when football clubs started to purchase and sale football players. The concept of transfer fees was in existence even in that period. Even though these rules flagrantly violated the contractual and labour rights of the players, these rules remained in existence throughout the majority of the twentieth century and were justified on the grounds of regulating player mobility and competitive equilibrium. The landmark case of Eastham[16] the retention and transfer system[17] was challenged by George Eastham who wanted to move from Newcastle to Arsenal. However Newcastle simply retained him despite his repeated request for transfers. As a result a writ was filed in the High Court against Newcastle for restraint of trade. Five issues was considered by Judge Wilberforce out of which the one of relevance where whether there was actual restraint of trade and whether such restrain was necessary for the maintenance of the nature of the league or its members. The Court found that Newcastle had indulged in activities which tantamount to restraint of trade. More importantly the Court found that the transfer and retention system was also an unreasonable restraint on trade on the ground that it acted as a barrier to the movement of players even when their contracts have expired unless a transfer fee was paid.[18] As a consequence of the Eastham rulin the retention and transfer system was overhauled and a new system was introduced where a player was free to move from his existing club unless the club offered a contract which atleast equaled the terms of the previous contract between the club and the player. In 1978 further changes were brough about which gave players the right to reject contracts and move to a different club. Further it was provided that in case of a dispute between the new and the former club regarding transfer fee a four member panel will be constituted to determine the amount of transfer fees. Finally the regulations existing in the baseball league in US [MLB] and its interface with different fields of law can be briefly explored. The major contentious issue in American Baseball league was surrounding the reserve list and reserve clause: which raised significant questions regarding players right to movement and free agency. However in the early years of the twentieth century the US legal system was averse to the idea of collective bargaining rights and hence there was a lacuna in the law related to labour rights. Further the Sherman Act, which sought to prevent restraint of trade also provided an exception to the MLB and as a result the employment rights of the players suffered. However the gradual development of collective bargaining culminated into the creation of baseball players association[MLBA] which entered into a collective bargaining agreement with the club owners. The significance of this collective bargaining agreement was that it contained an arbitrational clau se for addressing players grievances. On the basis of this collective bargaining agreement, arbitration proceedings were initiated inNational American League Professional Baseball Clubs v. MLBPA[19] where baseballs reserve system was challenged. The arbitrator found in favour of the players. However the true significance of the judgment lies in the fact that the arbitrator held that though it was possible to negotiate a reserve system which contained the option of continuous renewal, however the option clause was not implied into the contract and had to be bargained for. In other words the arbitrator laid down that the though the reserve system cannot be overhauled, however the incorporation of such a clause in player contract cannot be implied. The presence or absence of such a provision will be decided on the basis of collective bargaining between the parties. This was also affirmed by the [1] Union Royale Beige des Societes de Football Assn ASBL v.Bosman, 1995 E.C.R. 1-4921, 1 C.M.L.R. 645 (1995 [2] [3] [4] [1974] ECR 1405 [5] [1976] 2 C.M.L.R. at 587 [6] [7] [8] [9] [10] [11] [12] [13] [14] Meca Medina v. Commission, 2006 E.C.R. I-6991 [15] It has been argued that players have been treated as mere factors of production and the link of sports with the culture and identity of the Community have been overlooked. Further it has been suggested that one of the primary shortcomings of Article 6 dealing with discrimination in general and Section 48 dealing with discrimination against workers is that these two article fail to recognize this important characteristic of sports. [16] Eastham v. Newcastle United Football Club, Ltd., 1964 Ch. 413, 419. [17] Prior to the Eastham case this system existed in England where a club could virtually retain control over a player even after the expiry of a contract by withholding his player registration. A player could not move until the registration documents were released by the club which was usually done on the payment of a transfer fees. [18] [19] 66 Lab. Arb. Rep. (BNA) 101 (1975) (Seitz, Arb.).