Kituo in Kisumu

KituoKisumuM-Haki Kisumu County (Kisumu, Nyando, Awasi) Market Research, K’odiaga Justice Centre Visit and Volunteer Advocates Training.

Starting on the 22nd to the 26th August, 2016 Kituo Cha Sheria and The Royal Dutch Embassy in Kenya shall be in Kisumu County (Kisumu, Nyando, Awasi) for various activities. The week-long activities include market research and community outreach on M-Haki, visit to the K’odiaga Justice Centre and a volunteer advocates’ training in Kisumu. Also scheduled are radio sessions on Urban Radio 90.7 and Radio Nam Lolwe to augment the legal empowerment message in the region.

Some inmates are behind bars because they cannot afford advocates-, do not know how to represent themselves and are intimidated by the Courts. A fact finding mission conducted by Kituo advocates in 2015 revealed that K’odiaga had more remandees than any other prison.

On the 27th of July –  5th of August , 2015 Kituo cha Sheria, in partnership with ICJ-K, Kenya National Commission on Human Rights Haki Mashinani and LRF  empowered prisoners and prison warders at the Kisumu Main Prison(K’odiaga) on the criminal trial process and self-representation  so that they can in turn offer legal aid services to the wider K’odiaga prison community. Access to justice is a right guaranteed for all in the Constitution.

One year later Kituo makes a follow-up trip to K’odiaga to see the progress made by the prison justice center and see legal empowerment in motion. The prison community got legal empowerment on how to conduct self-representation in court, how to adduce evidence if any, how to cross examine witnesses, how to write their submissions, how to make mitigation statements, how to make interim applications such as those for bond, bail, certificates, how to request for documents and how to lodge a complaint against judicial officers.

The prison officers were educated and capacity built on the Constitution, laws governing prisons and general administration of justice. They were also trained on how to draft pleadings to enable them assist the inmates, those on remand or in custody.

Kituo cha Sheria.

We Care for Justice

Kituo Cha Sheria Launches the Meru G.K. Prison Justice Center

MERU1Kituo Cha Sheria welcomed the Meru Main GK Prison Justice Center to the family of legal empowerment centers on the 10th August, 2016. The Center was launched after a paralegal training on Criminal law and procedures was conducted from the 1st to 9th of August 2016 at the Prison facility.

August 10 is the International Prisoners Justice Day and this year the day was marked under the theme of Access to Justice toward decongestion of prisons. One of the goals of Kituo’s prison paralegal trainings is to decongest correctional facilities by empowering the prisoners and remandees on self-representation in court, how to adduce evidence if any, how to cross examine witnesses, how to write their submissions, how to make mitigation statements, how to make interim applications such as those for bond, bail and making applications for Community Service Order.

The following topics covered were; Basics of Paralegalism, Introduction to Human Rights, Bill of Rights (Chapter 4 of Constitution), Criminal Procedure Code Chapter 75 Laws of Kenya, Powers of Court, Provisions relating to all Criminal investigations, Mode of taking and recording Evidence in Trials, Procedures in Trials before a Subordinate Court and High Court, Sentences and Executions, Appeals, Self representation (Criminal Approach), Power of Mercy Act, The Prisons Act and Community Service Order.

The training was conducted by Kituo lawyers Maureen Thuo and Ashioya Biko together with Kituo Volunteer Advocates within Meru. The training on Community Service Order was an important session as the inmates were taken through the process of applying for a community service as it presents some inmates with the option of serving from outside hence decongesting the prison. The newly acquired knowledge on the Bail and Bond Guidelines was equally important in the process of decongestion. Giving inmates the tools to represent themselves in legal matters will increase access to justice and also empowers inmates to challenge situations of injustice and abuse of certain rights inside the prison.

Bringing prison constables on board was also important in creating awareness on inmate’s rights and their obligations to ensure the rights of the inmates are protected as well as offer oversight in ensuring that prison paralegals work with the officers and raise awareness about the activities of the paralegals in prison.

The eventful ceremony was witnessed by representatives from partner organizations and agencies including the Kenya Prisons Service, Kenya National Commission on Human Rights (KNCHR), CEFA, EU, Legal Resources Foundation (LRF), ICJ-Kenya, Haki Mashinani and Embassy of the Netherlands.

A total of 37 participants were trained, 30 of whom were inmates and 7 prison constables. The inmates comprised of those on long sentences, pre-trial detainees charged with capital offences as well as the condemned. Kituo urges the trained paralegals from Meru to work hard and use skills they have acquired to benefit themselves and fellow inmates.

Kituo Cha Sheria

We Care for Justice

Extra-judicial killings and enforced disappearances in Kenya;knee jerk reactions and their futility.

willie-kimani-protests“It used to be that a man could keep out of trouble if he behaved himself. Now he will only keep out of trouble if he behaves himself, (and) if the police behave themselves . . . . ..” 
― 
Agona ApellThe Success Genome Unravelled: Turning Men from Rot to Roc

It is a pattern often seen many a time before.

Abductions, mysterious disappearances/imprisonment often followed by the death of certain individuals in jaded and grey situations. The public is outraged. The media is attentive to every detail of the latest disappearance/extra-judicial killing. Task forces are formed, the police are indignant in the defense of their integrity. Finally, the matter is laid to rest, the death becoming little more than a statistic.

The latest death that prompted exceptional rage involved the shooting of a city High Court advocate.Willy Kimani was representing Josephat Mwendwa,a motor cycle taxi driver who had filed a complaint that he had been shot and injured by police in April of this year.

Following the complaint, Mwendwa was subject to extreme harassment by the police. Finally, as has happened countless of times in this country to persons critical of the government and the police, he “disappeared” alongside Willy Kimani and a Taxi Driver who had picked them up on 23rd June 2016, after attending a court hearing in Machakos County, on the outskirts of Nairobi.

Witnesses said they saw the lawyer and his client in a basement cell of a local police station shortly after the hearing. They Disappeared.

The audacity of the police in picking up the lawyer and his client right outside the court house in the brazen manner in which they were taken into custody speaks volumes about the situation in our country as far as extra-judicial killings go.

Are there plausible solutions?

  1. The carrot – Stick Approach.

“The British have been funding police reform in Kenya since the early 1990s. They have been pumping money in for that long and had no results and. . . That risk simply strengthening the culture of impunity. You can’t keep on giving carrots. Eventually you need a stick.” Maina Kiai, Human Rights Lawyer.

Perhaps it is time donor countries and groups that financially support the Security Forces in this country develop a firmer system of accountability whereby results are coherent and visible. A good example would be the British Government that has been supporting the Kenya Police to promote Police Reform and strengthen accountability and improve compliance with international human rights standards.

The United Nations has also extensively supported police reform projects in the country. It is not however, an effective method of achieving the same without demanding some sort of visible change. It would seem to the outside eye that things have inadvertently gotten worse. It should be a give and take sort of relationship.

  1. Strong governmental support.

In more mature democracies, Cabinet Secretaries resign voluntarily whenever their leadership comes into public question. One can hardly say the same for most African nations, Kenya included.

The current Cabinet Secretary in charge of security affairs and others before him have constantly derided the need for reform, casually chiding any instance of Police Enforced deaths and Disappearances with the phrase “investigations are on-going”. They seem to go on with no result in sight in every single instance.

Therefore it would almost seem that these extra-judicial killings and sudden disappearances do indeed have the backing or rather the acquiescence of the Executive.

The president also has a role in that under the constitution, the president has the power to dismiss an incompetent Cabinet Secretary. This is after the convening of a select committee of the National Assembly and its finding of sufficient grounds of dismissal. So why isn’t it happening already? That is a question that begs an answer.

The International Criminal Court had remarked, in the recently concluded cases against the President and the Deputy President that the level of government interference was unprecedented.

Witnesses were brutally intimidated and many were forced to recant their statements, others being found dead.

Without the government’s commitment and good will very little can be achieved. .and the status quo shall remain. Worst case scenario, it may get even worse than it already is if that is even possible.

  1. Structural reform.

Reform must be visible, and that means the clinical approach to removal of bad apples within the security forces….starting from the lowest level officer to indeed the inspector General himself.

The grounds for the removal of the Inspector General are clearly set out in the constitution. Most grounds are based on the central theme of misbehavior. However there is one specific ground that reads “any other just cause”. This implies that something as serious as the topic of discussion in this article is a sufficient reason for the removal of the current Inspector General.

With regards to the specific officers involved in such actions, It is not enough for the public to hold trials on social media and the Police Department to perform public relations stunts. There must be tangible action. By tangible I mean trials of the officers involved in such offences. Their dismissal or suspension and if possible, use of their own private funds to compensate the families of the victims involved. All this must be in public as it will act as a deterrement to all rogue officers and that it can no longer be business as usual.

Kenya is not police /military state. The Security Forces are servants of the people and should not be at war with them. There is still hope. However, change must be prompt and swift…with the goodwill of the State.

Samantha Oswago

LAED-Kituo Cha Sheria

UN Human Rights Review Meeting

Adika meetingImage:Stakeholders posing for a group photo after the review meeting.

Stakeholders from the Coast region, drawn from all coastal counties of Mombasa, Kilifi, Kwale, Lamu, Tana River and Taita Taveta held a meeting to review the Universal Periodic Implementation Matrix 2015 – 2019 on June 29th. The Universal Periodic Review is a peer review mechanism of United Nations Human Rights Council that examines the Human Rights Performance of all United Nations member states. Its goal is to improve Human Rights standards in all countries and it is reviewed once every four years.

The meeting was attended by 30 participants, majority of them were employees of the County Governments while the rest were from the Civil Societies and the academia in the region. Discussions were centered around the issue of Human rights with the Kenya National Commission on Human Rights taking centre-stage. Various human rights related issues emerged from the Coast including; extra-judicial killings, disappearances and radicalization, labour issues and matters in the mining industry especially in Taita-Taveta and Kwale Counties.

Giving the opening remarks, Hon. Mary Ndiga, the Deputy Governor, Taita Taveta County called on all players to protect and uphold Human Rights in their working areas. She reiterated the need for all stakeholders to work closely together in ensuring that human rights are respected.

Ms. Maureen Mwadime of the Commission explained that in order to conduct their work effectively, they have ensured implementation of integrated Public Complaint Mechanism. This is a system which enables referral of cases to different organizations. The system allows an organization which receives a matter that they do not deal with but which can be handled with a sister body, to transfer the same to the alternative agency.

Mr. Rono, also from the Commission led the participants in the discussion of the Universal periodic Review Implementation Matrix where key topics were discussed among them: Legal and institutional reforms, Civil and political rights, Economic, social and cultural rights and Group rights.

He further explained that Kenya was reviewed in January 2015 and as a result, some recommendations were made. Based on the recommendations, the Government developed the implementation matrix 2015-2019 for the next four and a half years to ensure their implementation, especially those accepted by the Government.

Zedekiah Adika.

Kituo Cha Sheria-Mombasa.

Mandatory anal examinations in Kenya; Outdated and Horrific

Opinion

A Kenyan Court ruled that the use of anal examinations is legal after two men accused of being homosexuals were subjected to the tests. The two men had brought a case to the High Court in Mombasa on Thursday, 16th June 2016 calling for anal examinations on alleged homosexuals to be declared unconstitutional.

“There was no other way evidence could have been obtained “ruled Mombasa Judge Matthew Emukule.

“I find no violation of human dignity, right to privacy and right to freedom of the petitioners”, said the judge.

In the case before the high court in Mombasa, Kenya, two men identified in the petition as C.O.I. and G.M.N., allege that doctors at Mombasa’s Coast General Provincial Hospital, in collaboration with law enforcement officials, violated their rights by subjecting them to forced anal examinations, HIV tests, and other blood tests in February 2015.

Judge Matthew Emukule at the High Court in Mombasa ruled on 16th June 2016 that there were sufficient grounds in Kenyan law for using the examinations to gather medical evidence of crimes including rape and sodomy, which are illegal in the country.

The petitioners have filed an appeal against the judgment.

The Law and Homosexuality.

In Kenya, where homosexuality is criminalized, men suspected of same-sex conduct are subject to non-consensual anal examinations intended to obtain physical evidence of homosexuality, a practice that is essentially medically and forensically worthless and has been dismissed as such in UN Documentation. Both the Independent Forensic Expert Group (IFEG) and the International Rehabilitation Council for Torture Victims have condemned the practise.

Decreased anal sphincter pressure, which is what such exams are looking for, can be caused by a wide range of conditions from chronic constipation and irritable bowel syndrome to Parkinson’s disease. Therefore this form of examination cannot be used as a basis for proving Homosexual sexual relations.

The law provides in sections 162-165 of the Penal Code, that private, consensual homosexual sex between adults or attempts thereof, is punishable with up to 14 years in jail.

However;

Forced anal exams violate the Convention against Torture, the International Covenant on Civil and Political Rights and the African Convention on Human and Peoples’ Rights, all of which are treaties that Kenya has ratified. Additionally, under international law and Kenya’s Sexual Offenses Act, any form of unwanted penetration during the examinations constitutes sexual assault and possibly rape.

The UN Special Rapporteur on Torture states that these exams amount to “torture or ill treatment ’’and may be considered a form of  sexual assault  and rape.

Furthermore, in April 2015, the High Court ruled that sexual orientation is constitutionally protected from discrimination and ordered the NGO Board to register the National Gay and Human Rights Commission.

Whether this law should be repealed remains a matter of public debate. It is important to note that laws were made by the societies they developed in, and not the other way around. Ours is not to berate the law as it stands, but to condemn the application of forced anal examination. It is horrific that such intrusion of another’s person still takes place under the guise of the law.

The very fact that multiple people were allowed to violate another human being in such a manner is unacceptable. The issue here is much larger than an instance of the “pro-gay agenda “as many have wrongfully labelled it. This was clearly a gross human rights violation.

Retrogressive ,homophobic practise

The fact that the Courts have decided to validate this violent practice is woefully unfortunate. It is retrogressive and is indeed a misguided step in the wrong direction. The violation of human dignity in this unfortunate scenario is not a matter of JUST sexuality .It is a matter of one thing all human beings are entitled to inherently by virtue of being human. Those are human rights.

Still, we have noted that the terror, fear and discrimination continues unabated even against the ruling in April, when the High Court was asked to cure the mischief in our laws, to stop pruning the branches of the poisonous tree and simply uproot it all together. The High Court being responsive ruled that sexual orientation is constitutionally protected from discrimination.

By

Samantha Oswago.

LAED-Kituo Cha Sheria

 

 

 

 

 

 

 

Kituo at the Mathare Legal Aid and Human Rights Advocacy (MLAHRA) Youth Forum

MLAHRA 1On June 30th 2016 Kituo joined the Mathare Legal Aid and Human Rights Advocacy (MLAHRA) and the youth of Mathare drawn from Mashimoni, Huruma and Area 3 from 9am to 12pm at the Undugu Vacational Training Center Polytechnic on Juja road for an awareness forum.

MLAHRA organizes monthly public forums geared towards promoting active citizenship with Gibson Maina, an activist and community organizer working in Mathare slum mobilizing around 40 youth leaders from all over Mathare slum who invited Kituo for the June edition. Kituo’s Advocacy, Governance and Community Partnerships coordinator Aimee Ongeso, Maureen Thuo and Ashioya Biko(Kituo Advocates) conducted the day-long training at the forum.mlahra22

Kituo used the forum to educate the participants about the history of Kituo and the work the organization does as well as update them on the status of the Legal Aid Act including aaccreditation of legal aid providers legal advice and assistance by paralegals and persons who may apply for legal aid. The participants also taken through Kituo’s M-Haki– a mobile legal aid platform through which the public can send in legal questions and get a response within 48 hours.The forum present an opportunity to share Kituo’s work with the youth including how we engage with communities together with a Q&A session for legal questions from the participants.

RCKM

Kituo Cha Sheria

How Safe Are Human Rights Lawyers In Kenya?

FLW

KITUO CHA SHERIA is deeply concerned about the disappearance and the unknown whereabouts of Mr. Kimani Advocate, a Kenyan professional entitled to protection whilst on duty. It remains a mystery that, four days after his disappearance, there has been no sighting of him; there is no information of where he might be or what might have happened to him!

As a legal aid, human rights organization with lawyers representing clients against government authorities, including the police, KITUO is deeply concerned about the welfare of lawyers who toil each day to help their clients, mostly the poor to access justice.

This follows the media reports that whilst travelling from Mavoko Law Courts with his client after a Court appearance on Thursday 23rd June 2016, lawyer Willie Kimani together with his client Eric Mwendwa were picked up by a taxi driver John Muiruri towards International Justice Mission offices in Westlands, but were hijacked near Mlolongo area.

If what is being reported in the media that: Mr Eric Mwendwa had alleged that the charges against him followed his claim that he had been shot at by a Police officer in a dispute of a personal nature and further that; Mr.Mwendwa lodged a complaint with Independent Policing Oversight Authority (IPOA), accusing the officer of attempted murder and of framing charges, Kituo Cha Sheria smells a rat.

KITUO takes the view that; Lawyers who act as officers of the Court; with an overriding obligation to accept any instructions and to represent clients whilst carrying out their Constitutional duty of ensuring access to justice; should be able to do so without fearing for their lives.

Kituo Cha Sheria therefore joins the International Justice Mission, a human rights organization that has excelled in representation of victims worldwide and other organizations in asking the question, just how safe are human rights lawyers in Kenya whilst in the course of duty?

Kituo Cha Sheria remains alert to this disturbing news and reality  and is considering if and when appropriate to seek habeas corpus orders since there are media reports that certain bodies have been sighted, but have not yet been produced.

In the meantime, the family of Kituo Cha Sheria stands in solidarity with the families of Mr. Kimani, Mr. Mwendwa and Mr Muiruri and we keep them constantly in our thoughts and prayers.

28th June, 2016

By

Angote Gertrude

Kituo Cha Sheria

SUCCESS STORY OF GRACE OMUYAKU

mwariri

Grace Omuyaku (Center) receives her cheque from Kituo Advocate John Mwariri as Kituo’s Boniface Muinde looks on.

The story of Grace Omuyaku adds up to the many success stories that Kituo boasts of having successfully assisted its clients get justice.

Kituo cha Sheria (KITUO) is an organization that has for long been in the forefront in pursuing justice for the indigent in society. Since Grace was introduced to Kituo, she has been on a journey with the assistance of Kituo for the last seven years. The persistence on this journey has finally seen a smile back on her long forlorn face; and long may it continue.

What’s the Story…

Grace worked for Telecom Kenya as a personal secretary for over 20 years until 2006 when she and other employees approaching 50 years of age were retrenched. In December the same year, she was paid a lump sum amount of Ksh. 800,000 by the company (Telkom).

After consultation, Grace sought to invest the money in a Nairobi based company called NOSKCID (Africa) Asset Management Limited. Here, she was supposed to be receiving Ksh. 20,000 per month as interest from her investment for six month then she renews the investment upon wish.

“That only worked for a period of the first six month, then the first four month of the renewed investment, though through struggle,” she recalls.

Her encounter with Kituo cha Sheria.

Thereafter, the company went silent, never to deposit any more money to her account or even notify her of anything. It was during this ordeal, in 2009 when a friend of hers (Teresa, former client at Kituo) referred her to Kituo cha Sheria for legal assistance.

She remembers Kituo receiving her warmly and the first step was writing to the company seeking to resolve the matter out of court. These efforts proved futile as the company ignored the letter and the matter proceeded to court.

Since Grace could not afford raising court and related fees, Kituo helped her document a pauper application which succeeded. After going through the long court process the court ruled that Grace be paid a decree of Ksh. 879,852. The company did not honor this ruling either, to their shock, Grace and Kituo found out that the company had transferred all its assets to an unknown location. This meant that even auctioneering the company’s property was not a possibility. In 2015, the high court ordered that the directors of the company be summoned and when they appeared their lawyers claimed that the company had wound up. Instead the directors proposed to be paying Grace Ksh.50, 000 per month, starting May the same year only to do it for only one month and stopped.

March 2016, Kituo filed an application to the magistrate for notice to show cause why the director cannot be committed to civil jail or pay the amount and in June 15th, 2016, the court issued a warrant of arrest for the directors risking commitment to civil jail.

This signaled to the defendant (director) that things were getting worse and so a day later, on 20th June, 2016 he gave out a cheque of Ksh. 100,000 through Kituo lawyer, John Mwariri- defender of the poor-handed over to Grace Omuyaku, in the presence of another Kituo Officer Boniface Muinde at Kituo cha Sheria gardens. The defendant has further proposed with permission of court to be paying in installments until the whole amount now standing at Ksh. 1.6M is cleared.

Now that gives Grace a ray of hope and a smile on her face. She says that she hopes all will be well and gives a big thank you to Kituo cha Sheria for walking with her this long journey to see to it that justice prevails and the rights of those habitually trodden are upheld.

RCKM

Kituo Cha Sheria

 

 

Kituo undertakes M-Haki Market Research and Training in Nairobi

nrbi

Starting on the 8th June 2016 at the Korogocho Community Justice Centre; 10th June 2016 at the Kibera Community Justice Centre and on 15th June 2016 at the Kamukunji Community Justice Centre, Kituo has been carrying out M-Haki market research and training for community members within where our justice centers are based.

M-Haki-‘Haki Mkononi’ is the use of SMS technology to disseminate legal information to clients and Kituo is currently in the first phase of a three phase implementation process where we’re conducting market research primarily to find out what people are willing to pay for the service.

In addition, Kituo is collecting and analysing data and experiences needed to engage Kituo stakeholders including volunteer advocates, paralegals and community members. This phase is ongoing ahead of the launch of the M-Haki platform and the corresponding advocacy activities. The three Market research and training activities involved around 100 participants representing different groups from within the communities. The training and research activities were spear-headed by Kituo legal officers Ashioya Biko and Maureen Thuo assisted by the respective community justice centre coordinators.

M-Haki is an innovative and reliable technology developed by Kituo Cha Sheria intended to lessen the costs of accessing justice. To make use of this technology, Kituo has a dedicated mobile number – 0700777333  where the public can text legal questions at a small fee to be answered by Kituo lawyers and volunteer advocates. Questions are gathered from anyone and anywhere and this will save persons the trouble of using commuter fare to come to Kituo’s offices. In other words legal advice is just a click away… Haki Mkononi.

M-Haki follows the idea of delivering basic justice/legal advice to people even for those who use quite basic mobile phones. The platform also serves as an advocacy tool to be used by Kituo paralegals from the community justice centres to build their personal capacity on legal issues and create awareness among the general public on how to access the service directly.

RCKM

Kituo Cha Sheria.

Must a Father’s Name be on the Birth Certificate of a Child?

The High Court in its ruling dated May 26th 2016 stated that women may now register the names of the fathers of children, born outside marriage without their consent on the birth certificate. Lady Justice Mumbi Ngugi ruled that all birth records may include the father’s name. Further, the court declared Section 12 of the Births and Deaths Registration Act unconstitutional.

Section 12 of the Births and Deaths Registration Act Unconstitutional

Section 12 of the Births and Deaths Registration Act states that no person shall be entered in the register of births as the father of a child “except either at the joint request of the father and mother” or upon proof to the Registrar that the father and mother of the child were married to each other in accordance with the law.

When the Act was enacted there was no DNA test or conclusive method of determining the validity of any unmarried woman’s claim. Further, women generally at the time did not get children out of marriage and their claims would therefore be unsubstantiated. Where a father expressly prohibited the mother from including his name in the Birth Certificate, he was backed by the law. The effect of such a law is the large number of single mothers in our society with little to no financial backing from the fathers of these children. Therefore, an undue burden is placed on the mothers of these children whilst the father is left to go without any parental responsibility.

Whereby there was no father acknowledged, there was the practice of placing the “XXXX” marks on the birth certificates of children born outside marriage. The placing of such marks obliterates the genesis and background of a child and gives incorrect information. Consequently this obliterates a child’s history and background information, inadvertently flying in the face of constitutional provisions on the right to information and health.

This section also presupposes that each child will have both his mother and father alive and available to make a joint application for such child’s birth certificate. In the case where the mother dies at child birth, such a child would not be able to meet the criteria to have his father’s name on the birth certificate.

Furthermore, the effect of section 12 is that if a father of a child born outside marriage is not willing to have his name entered in the register as the biological father, then his name will never be entered in the register. This is because; since the mother and father are not married to each other, there will never be any proof of marriage between them as would satisfy the Registrar.

The section places an arbitrary and unfair distinction between children born in wedlock and those born outside marriage. It also places an unjustified and unwanted distinction between married and unmarried women. These categorizations further perpetuate discrimination that fuels an already patriarchal system. Promises of equality and non-discrimination to children are entrenched in the Constitution. It is not too much to demand that we begin to affect these promises with respect to children born outside marriage.

The spirit of the Ruling

The spirit of the judgement seems to be the desire to transform society, to recognize the inherent dignity and worth of all persons; to protect those who have hitherto been marginalized and to ensure that they enjoy the human rights guaranteed to all on the same basis. Further, that the best interests of the child, whatever its status of birth, must be the primary consideration in every matter concerning the child.

The Constitution and the Law of Succession Act both accord equal treatment to children born in/outside wedlock. The law of succession act provides that all children have the right of inheritance from their parents.  The judgement merely enforces the existing position of the law on equality. Nothing new is being introduced; rather a law is being brought to conformity with our Constitution.

Where the father of a child born outside marriage refuses to contribute to the upbringing of his child, the mother is compelled to seek the Court’s assistance in the form of a maintenance order, which often requires establishing paternity through a DNA test as per the ruling delivered.

However, with legislation that provides for inclusion of the particulars of fathers in the birth certificates of all children, whether born within or outside marriage, the burden imposed on women is lessened, and it is possible for men to take up their responsibilities with respect to children sired outside marriage.

Does this ruling support fraud?

The Attorney General alleged the purpose of section 12 of the Birth and Registration Act  was to  protect   putative men  from the alleged machinations of unscrupulous women (based on an unapologetic but unacceptable patriarchal mindset that wishes to protect men from taking responsibility for their actions, to the detriment of their children.)

In the court’s view, balancing the two interests, that of the men and the rights of children, there was no contest seen. Such a stated purpose, the alleged protection of men from unscrupulous women, is premised on a negative, discriminatory stereotyping of women as dishonest people who will latch onto a man for child support with no basis.

Furthermore it is provided in law that any person who fails to give notice of a birth or death registration and any person who willfully gives any false information or particulars for the purpose of registration, shall be guilty of an offence and be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment.

It appears that should the mother of a child born outside marriage name a person as the father of her child falsely, then she will face the law.

The process of DNA sampling may be used to confirm the putative father, and the issue of costs can be addressed when such circumstances arise. Where a mother of a child born outside marriage alleges that a certain man is the father and he denies paternity, if the DNA process proves that he is indeed the father, he should be condemned to pay the costs of the DNA. However, if the DNA turns out negative, the mother should pay the cost of the test. This is as per the guidance of the court in the just concluded ruling.

Needless to say, there needs to be provision for the time within which such applications are to be made, and for notice to the alleged fathers, as well as provision for DNA testing to be undertaken to establish paternity where it is denied.

It was also argued that if names are allowed to be inserted in the Register at any point, a platform of confusion which will allow unscrupulous persons to enter any person’s name in the Register at any point in their lives for personal reasons will have been opened. Further such a situation will also open a window for unending litigation, and it is not in the best interests of the child that the name is entered in the Register at any stage, is contested, and then is struck out.

However, the court, in its ruling added that what needs to be put in place are clear rules for applying for the name of the putative father to be inserted in the birth register and certificate, for notice to be given to the person concerned so that he can agree or object, and in the event of an objection, for DNA testing to be done.

Rape and Defilement

There are unfortunate instances when children are begotten as a result of rape and sexual violence inflicted upon a woman. Naturally, such women may not particularly be inclined to include the names of the father of the child onto the children’s’ birth certificates.

Unfortunately, the judgement does not explicitly state what should happen to women in sensitive situations such as rape and if the father cannot be identified in such scenarios. It is however implied that should the identity be known through DNA testing, the father should ultimately provide for the child and we assume also appear on the birth certificate. We assume the court will resort to means such as attachment of property of the accused in the event they are paupers.

It is true that many rape victims would hardly want the names of their rapists on their children’s’ birth certificates. It seems that the judgement implies that the placing of fathers’ names is mandatory. Therefore this is a great oversight of the learned judge if that is indeed the position.

The judgement does raise some difficult questions. Especially considering it seems to eliminate the right of choice by women to exclude the names of men they have begotten children with.

By

Samantha Oswago and Wangari Karige

LAED-Kituo Cha Sheria