PETITION TO THE MANAGING DIRECTOR, KENYA FERRY SERVICES ON CONCERNS OF CIVIL SOCIETY ORGANIZATIONS AND THE PUBLIC ON SERVICE DELIVERY AT THE FERRY SERVICES

The Managing Director, Kenya Ferry Services (KFS);

7th November 2019

The Civil Society Reference Group (CSRG) is a broad coalition of CSOs, religious organizations and non-state actors operating in the Coast Region with the core mandate of protecting and upholding Human Rights.  

The import of this Petition is raise with you, a number of issues emanating from our membership and the Community at large about operations of the Kenya Ferry Services in recent times. We thus look forward to you for responses and solutions to the same.

It is our standpoint that the key business of the Service is transporting passengers and their property. The same is expected to be done in a manner that respects Human Rights of commuters, international safety standards and in a manner that manifests professionalism at the Ferry Service:

As such we raise the following concerns:

  1. It is in the public domain courtesy of your pronouncements at a Parliamentary Committee that three ferries Mv Nyayo, Mv Harambee and Kilindini are considered out of international standards. They are considered unseaworthy. It is our position that this is endangering the lives of commuters and those ferries should be replaced forthwith;
  1. In 2018, the Auditor General said he could not confirm the accuracy of claims of the building and supply of two ferries that cost KSh. 2 billion. We have reports that there are several strands of corruption involving staff seeking stipends from the public. Yet, we are yet to see prosecution relating to allegations of this kind. We state that the service should address this matter with the seriousness it deserves to enhance accountability and win public confidence.
  2. What is the fate of the land of the Kenya Ferry Service that has been grabbed and is in the hands of private individuals?
  3. The following reported incidences form part of the account that we consider as looming crisis at the Service:  
  1. On October 26, 2015, eleven people were seriously injured in a stampede at the channel as hundreds of commuters scrambled to access the ferries.
  2. On May 9, 2016, MV Nyayo was pushed by tides off the Likoni channel towards the deep sea with commuters onboard. It was towed to the inland after reinforcement;
  3. On December 15, 2016, GSU officers had to be called in to calm commuters at the Channel following the breakdown of three ferries. For about five hours, only MV Likoni was operating. The other three ferries – MV Kwale, MV Harambee and MV Nyayo – developed mechanical problems and had to be withdrawn.
  4. On 19th March 2018, MV Nyayo was withdrawn from service after a technical hitch. MV Jambo was also withdrawn from the channel under similar circumstances.
  5. On 20th March 2018, MV Jambo stalled in the middle of the Ocean.
  6. On September 2018, there was heavy traffic at the Likoni crossing channel after three ferries developed engine problems and broke down.
  7. In August 2019, a ferry with over 1000 people almost collided with an oil tanker. The KFS admitted the fault three weeks later.
  8. It shouldn’t be lost on us that in 1994, MV Mtongwe ferry, capsized just 40 meters from the port. 272 of the 400 people on board died.
  9. We consider recent public pronouncements, especially on the recently launched strategic plan as falling short in addressing urgent commuter concerns. We hear more about bridges, cable cars, flouting restaurants and by-passes and not basic security and safety concerns that are here on daily basis.

The above trends have negative ramifications on investor confidence and pushes the coastal region to further economic challenges.  

On account of this statement, we state:

  1. The KFS Management should move with speed to restore confidence in Ferry Services, more sustainable than knee jerk reactions being observed;
  2. The findings of investigations into the incident of Amanda and her Mother Mariam be made public and prosecutions follow forthwith;
  3. That any other investigations/proceedings regarding the progress at the ferry include the voice of the public (Commuters) and findings be shared with the public;
  4. The Kenya Ferry Service should overhaul the ferries in place and purchase new ones that uphold respect and dignity of Commuters;
  5. The review of the Strategic Plan to reflect realities on the ground, specifically on safety of ferry users;
  6. Kenya Ferry Services to hire divers and train them to International Standards; this should be considered urgent;
  7. The matter of crowding at the waiting lounge and incidences of sexual harassment, theft, be urgently addressed- compare the SGR and Airport.
  8. The faulty security apparatus should be maintained and standards well maintained;
  9. Key question of the constitutionality of the management of KFS requires rethinking by policy makers. Unfortunately the Supreme Court threw this out on technicality.

We intend to have a review meeting after two months to monitor progress on areas of concern:

Signed:

The Civil Society Reference Group (CSRG)

Mombasa, Kenya

SUCCESS STORY OF EVERLYNE AGUTU NYAGWA

SUCCESS STORY OF EVERLYNE AGUTU NYAGWA

Ms. Everlyne Agutu (in red dress) at Kituo Head Office after the mediation agreement was signed.

The story of Everlyne Agutu reads like that of any other middle-aged domestic work woman living in Nairobi’s informal settlements. She contributes to the country’s economy performing menial jobs to fend for her family of five; doing laundry, landscaping and other household jobs in city estates neighbouring her Kawangware home. This was the routine for the five years Ms. Agutu lived and worked in Nairobi until January 2008 when she entered into an oral contract of service with a gentleman to work in his Lavington residence. Based on the oral contract; the house help salary of Ksh. 4,000 was a major milestone for Ms. Agutu.

She was comfortable with the certainty of monthly income and diligently performed all tasks expected of her with utmost loyalty. Testament to the dedication of most Nairobi domestic workers; working conditions not withstanding; Ms. Agutu went about her work without fuss and her monthly salary was progressively revised upwards, first to Ksh. 7,000 and up to Ksh. 13,000 in 2013. This source of income was regular, predictable and good enough to sustain Ms. Agutu and her family for all these years.

The domestic work sector in the Kenyan economy is not properly regulated yet it plays a key role in economic growth and development, and is a major source of employment in urban and peri-urban areas. Domestic workers perform a range of services and tasks including cooking, cleaning, laundry, child care, elderly care and others as assigned. But despite performing these essential services for the well-being of families and the smooth functioning of the national economy, they have long been ignored in labour legislation and social policy.

Kituo Cha Sheria is dedicated to the welfare of persons like Ms. Agutu and we recognize that the law on domestic staff is clear, and simple! Yet the breaches of it are abundant. After working for over 11 years in one household, Ms. Agutu was unlawfully terminated on 16th June 2019. Sadly, in Kenya this is the fate of a majority of domestic workers especially in Nairobi, Kisumu and Mombasa- employers  quote all manner of reasons for unfair termination- including poor performance, misconduct, petty theft, etc.

Luckily Ms. Agutu was aware of an organization that exists to take care for justice for the poor and marginalized people in society- she approached Kituo Cha Sheria for legal advice and possible instructions in August 2019. Our legal officer Odero Ramdhan took up the matter and computed terminal dues for Ms. Agutu for the 11 years and 7 months she had worked; the employer was served with the demand for the same.

On 7th November, 2019 Everlyne Agutu and her former employer entered into an agreement on the mode of payment of her full terminal dues in monthly installments. This matter was resolved without recourse to the legal system- through negotiation and all parties were satisfied with the outcome. Ms. Agutu is back to working menial jobs but with the satisfaction that her labour rights were not violated thanks to Kituo cha Sheria.

Kituo remains committed to helping the disadvantaged, poor and marginalized people in Kenya access justice. We will continue to empower the poor and the marginalized communities and peoples on their human rights and to create avenues for these individuals to effectively access and enjoy these fundamental entitlements.

By:

RCKM

Kituo Cha Sheria

Occupation Health & Safety as a Disability Right: Is there a Lacuna in the Law?

Occupation and safety health laws refers to collection of constitutional, statutory and customary standards and obligations meant to ensure safety in the work place. This is a traditional and pivotal part of employee welfare program. It is engrained in the principles of labour relations. The idea that for employees to optimally be productive, there is need to make the working environment safe and accessible. Legally, international instruments such as Article 7 of the Convention on Social Culture and Economic Rights provides that employees inter alia are entitled to safe and healthy working conditions. The ILO has also come up with over fifty instrument all dealing with different aspect of safety at work.

These statutes distinctively deal with safety to prevent deaths, accidents and therefore work related disabilities. The Constitution of Kenya 2010 is silent when it comes to occupational safety and health in general. However, the Occupational Health and Safety Act, 2007 breaks down the issues that constitute occupational health and safety law. These include: rights and duties with regards to occupational health and safety, creation of an administration office to implement the Act, health safety, chemical safety, amongst others.

This paper is however concerned with three issues;

  1. Are occupational health and safety laws part of disability rights?
  2. How are occupational health and safety laws fused into disability laws and what’s the jurisprudence thereof
  3. What is the way forward and best practice?

Occupation Health and Safety as a Disability Rights

Disability Rights may be defined as those distinct rights elaborating sufficient standards of protection for civil, cultural, social and economic rights for persons living with disabilities on the basis of inclusion, equality and non-discrimination. These Rights were born out of the realization that persons with disabilities though are a part of the general population and social fabric; face unique challenges and situation that require legislative interventions.

Therefore, are occupational health and safety laws disability laws? The answer to this is in the affirmative. Persons living with disabilities form part of the workforce and therefore need specific needs with regards to occupational safety and health. There is need to make a distinction that while the general laws are meant to prevent and protect against disabilities- occupational   safety and health as a disability is after the welfare and safety for persons with disabilities. It ideally asks the employees to ensure that their places of work are not only disability friendly but safe.

Occupation Health and Safety within Disability Law

Disability laws in the Kenyan context consist of the Constitution of Kenya 2010, Convention on the Rights of Persons with Disabilities and Persons with Disabilities Act No. 14 of 2003. Having established that occupational health and safety is an integral part of disability rights. It is important to interrogate if this is covered in the disability laws.  Disability Rights are given a spotlight in Article 54 of the Constitution of Kenya 2010.  While the supreme law does not directly speak of occupational health and safety, the law requires employment of 5% of persons with disabilities to every appointive and elective position. 

The Constitution of Kenya 2010 also reiterates the obligation to treat persons with disabilities with dignity. This in no uncertain terms means inclusivity and therefore boils down to access and safety at the work place. In addition to this, access and free movement for persons with disability is also a key element of Article 54.

The Convention on the Rights of Persons with disabilities which is part of the laws of Kenya pursuant to article 2 of the Constitution 2010, gives member states an obligation to ensure that persons with disabilities have access in the work place; are appreciated for their skills in the labour market and work in a safe environment. The Parent Act- the Persons with Disabilities Act, just like the Constitution of Kenya; while it touches on related provision on work, access and the standards of public building; it is silent on matters of safety at work with regards to persons with disabilities.

What about Jurisprudence from the Courts? 

A lot of matters regarding disability rights and mainstreaming have been canvased within the legal system since the promulgation of the Constitution of Kenya in 2010. There is however very little jurisprudence on the matter of occupation health and safety for persons with disability. The prevailing attitude is one looking at these provisions as preventive of disability but not rights for persons with disabilities.  Is there a lacuna in the law?   

Which Way Forward?

The Convention on the rights of persons with disability promotes integration and disability mainstreaming. This means having an inclusive look in every aspect of life for a person with disability. While prevention is key, disability laws majorly focus on those with disabilities. Occupational health and safety laws would therefore ensure that these persons are safe at work and are able to be productive in spite of disability.

I therefore propose the following interventions: –

  • There is need to change the attitude on disability. Kenya has to start looking at persons with disabilities as an integral part of the society. I therefore propose an integral and inclusive way of looking at the law and resultant jurisprudence.
  • Legislative interventions- there’s need to amend the parent disability statute to include matters of welfare, health and safety in the workplace for PWDs.
  • There is also need to have awareness in this subject. Create rules and regulation- subsidiary legislation that touches on specific hazards are meant to protect the vulnerable such as PWD’s in case of emergencies at the place of work.

By:

Ouma Kizito Ajuong’

Advocate of the High Court of Kenya

https://www.facebook.com/pennyformythoughtsKZ

https://www.poeticfountain.com/thevoiceofafrica

SUCCESS STORY OF JOHN MUKOMA

Mr. John Mukoma had decided to be generous enough to donate 2 acres of his land to his brothers as part of the inheritance share his late father was to divide among his sons. Mr. Mukoma, who had already acquired some land next to his father’s saw it fair to contribute to the share of land his brothers, who had none, would get. His generosity was however to be abused by his brothers who decided to turn against him and demand for more from their brother after the death of their father.

Things got worse when his brothers turned to violence against Mr. Mukoma and got beaten to near death prompting him to seek legal redress to solve the issue. Mr. Mukoma looked for a city lawyer to help him file a criminal suit in 1998 but would later drop him after he left the country.

Mr. Mukoma would later hear of Kituo Cha Sheria on radio in 2001 and sought the organization’s help. After visiting Kituo and having his case taken up by Kituo, the plaintiff sought orders from the court barring his brothers Michael Kabiti, Josiah Mburu and Patrick Njubu as 1st, 2nd and 3rd defendants from laying claim to the parcel of land and stop the encroachment. He was able to prove to the court that he was the rightful owner of the suit parcel of land No. Gatamaiyu/Kamburu/714. The defendants claimed that Mr. John Mukoma was only holding the land in their trust, a claim that was challenged by the plaintiff.

After a long court case characterized with notable no-shows from the defendants, John Mukoma would later breathe a sigh of relief after the court granted his wishes on 7th April 2003 declaring that the plaintiff had proven that he owns the land and does not hold the suit property in trust. The magistrate also questioned why the defendants would wait for the death of their father to claim.

However, the defendants would later file an appeal seeking to set aside the judgment of April 2003. The application was canvassed before Justice Nambuye J (as she was then) and a ruling was delivered on 24th April 2008 where the initial judgment of 2003 was set aside and the defendants were granted an opportunity to appear in court and present their evidence. However, the matter came up severally in court and the defendants together with their advocates were always absent even after being served with court papers. In view of this, the plaintiff’s evidence was not challenged and the court asked for further supporting documents.

The case was therefore heard in the absence of the defendants and the court upheld that Mr. Mukoma was the rightful owner of the parcel of land while also finding the defendants guilty of trespass and ordered awarded the plaintiff KSH. 500,000 in damages. The judgment was delivered at the Environment and Land Court at Thika by Judge L. Gacheru on 24th May 2019.

Mr. Mukoma expressed his gratitude to Kituo and particularly to Mr. Kivungi, Advocate Mwariri and Boniface Muinde for walking with him throughout the court case period. Indeed, justice is the tolerable accommodation of the conflicting interests of society, and I don’t believe there is any royal road to attain such accommodation concretely- Judge Learned Hand.

By:-

RCKM

Kituo Cha Sheria

KITUO & GIZ-CPS KENYA: Celebrating 10 Years of Partnership

KITUO & GIZ-CPS Kenya: On Friday, 20th September 2019, Kituo Cha Sheria and GIZ-CPS Kenya celebrated a 10-year partnership in promoting access to justice for the most vulnerable people in Kenya. The colourful evening event took place at the Desmond Tutu Conference Centre, Nairobi. The Civil Peace Service (CPS) has been supporting civil society partner organizations in Kenya since 2009 – and in recent years increasingly also governmental partner organizations. KITUO is a long-term partner of GIZ-CPS Kenya; we are honoured to be among the initial partners GIZ-CPS Kenya engaged with in 2009. Together, Kituo has implemented 3 projects- the Peace Justice and Reconciliation Project (PJRP); the Alternative Justice Systems (AJS) Project and the Mental Health and Psycho-Social Support (MHPSS) Project with great successes. Kituo Cha Sheria’s partnership with GIZ began in 2010 with the Peace Justice and Reconciliation Project which was informed by the need to review the structures of governance as they relate to security, human rights, the rule of law and democracy after the 2007/2008 Kenyan post-election crisis. The project was to ensure many Kenyans, participate in the Transitional Justice Mechanisms, by facilitating effective community representation and participation. KITUO and GIZ-CPS have since collaborated in the implementation of Alternative Justice Systems which are mechanisms of solving disputes or/and conflicts between parties without recourse to the courts. The methods used in the AJS processes include mediation, negotiation and where ever possible reconciliation. Through AJS, the conflicting parties are brought together to dialogue and agree on a voluntary basis in order to forge a way forward. Kituo Cha Sheria and GIZ have worked together since 2017 in providing mental health and psychosocial support to refugees in urban areas through the Mental Health and Psycho-Social support Services (MHPSS) which is under the Forced Migration Program. Speaking at the 10th Anniversary celebration; Mr. Justus Maithya Munyithya, Advocate and the Chairman of Kituo’s Board of Directors lauded CPS-Kenya for their support and the focus on peace journalism, alternative dispute settlement and on establishing dialogue structures that encourage people to resolve conflicts without violence. Kituo was also represented at the evening event which started with a market expo by officers Tobias Mwadime, Martha Ogutu, Jane Corazon, Charity Wangui, Roy Kiarie and Shem Alubala.

___________________________________________________________________________

On Friday, 20th September 2019 we celebrated a 10-year partnership in promoting access to justice for the most vulnerable people in our society. KITUO is a long-term partner of GIZ-CPS Kenya; we are honoured to be among the initial partners GIZ-CPS Kenya engaged with in 2009.

Together we have implemented 3 projects- the Peace Justice and Reconciliation Project (PJRP); the Alternative Justice Systems (AJS) Project and the Mental Health and Psycho-Social Support (MHPSS) Project with great successes.

1.0 PEACE JUSTICE AND RECONCILIATION PROJECT (PJRP)

Kituo Cha Sheria’s partnership with GIZ began in 2010 with the Peace Justice and Reconciliation Project which was informed by the need to review the structures of governance as they relate to security, human rights, the rule of law and democracy after the 2007/2008 Kenyan postelection crisis. The project was to ensure many Kenyans, participate in the Transitional Justice Mechanisms, by facilitating effective community representation and participation.

Kituo with the partnership of GIZ-CPS Kenya worked with the Truth Justice and Reconciliation Commission (TJRC) and the International Criminal Court (ICC) to address historical injustices and post-election violence; advocated for an IDP policy and legislative framework. PJRP made a contribution to strengthening human rights and good governance to ensure increased access to justice through legal intervention and advocacy.

KITUO in its mission to offer legal aid, empower and represent poor and marginalized individuals and groups in Kenya decided to support these efforts to deal with the past and to promote Kenyans’ transitional justice agenda. In line with this vision, PJRP aimed at ensuring victims’ participation in the Transitional Justice mechanisms available in the country and the promotion of rights of victims of violence in general.

PJRP particularly targeted Internally Displaced Persons (IDPs) and other post 2007/8 general elections violence victims. The overall goal was to ensure effective and meaningful inclusion of the key target group in the then ongoing truth and justice processes as well as to establish a referral mechanism to improve their devastating situation.

KITUO worked closely with the survivors and relevant stakeholders from the grassroots to the national level in developing policies and promoting Peace, Justice and National Reconciliation. PJRP assisted the TJRC to reach out to victims groups all over the country; the victims gave statements to the TJRC and informed them about the intervention of the International Criminal Court (ICC).

Moreover, PJRP advocated in order addressing historical injustices and post-election violence for domestic accountability as well as for an IDP policy / legislative framework.

PJRP played an active role in ensuring community awareness and victim participation and collaboration among civil society engaged in the process. KITUO pushed for the adoption of the national IDP policy, ratification of the Kampala Convention and enactment of necessary legislation. KITUO was actively involved in the promotion of the IDP Act and cooperated therefore with the Parliamentary Committee for Internal Displacement.

ACHIEVEMENTS

  1. PJRP contributed through advocacy and training to strengthen human rights and good governance, to ensure increased access to justice through legal intervention.
  2. PJRP contributed in drafting of the National IDP policy which provided an avenue for legal protection of IDPs.
  3. PJRP also contributed to empowering victims to participate in the Transitional Justice Mechanisms in Kenya through legal aid, advocacy and community outreach initiatives.
  4. Kituo through the project joined various networks for its intervention on Internal Displacement issues with the then Ministry of Special Programmes, Ministry of Justice, National Cohesion and Constitutional Affairs (MOJNCCA), National IDP-Network Protection Working Group, especially United Nations High Commission for Refugees (UNHCR), IDP self help groups in urban settlements, Nairobi Peoples Settlement Network (NPSN), Kenya National Commission on Human Rights(KNCHR) among other organizations, together with other CBOs in Nyanza, Rift Valley, Western and Nairobi Provinces.
  5. PJRP became a member of the Truth Justice Network Kenya and re-activated KITUO’s  membership in the Kenya for Peace Truth and Justice Network. KITUO initiated the creation of an ICC-sub-working group which meets regularly and effectively coordinates its activities.
  6. Kituo was represented at the NGO roundtable of the International Criminal Court in April 2011
  7.  

‘’A community is democratic only when the humblest and weakest person can enjoy the highest civil, economic, and social rights that the biggest and most powerful possess.” -Philip Randolph

2.0 ALTERNATIVE JUSTICE SYSTEMS PROJECT

Since the 1992 General Elections, there was and remains a possibility of Post Election Violence (PEV) re-occuring. This unfortunate cycle of PEV needs as much as possible to be mitigated so that its recurrence is reduced or stopped altogether. Post Election Violence (PEV) has led to various obstacles like massive loss or destruction of property especially land as well as other serious forms of violence.

Considering the adversarial formal Justice system, the communities deserve a judicial mechanism that fosters forgiveness, peaceful co-existence and justice considering the status quo. This can be achieved through an Alternative Justice System mechanism. Alternative Justice System (AJS) with a participatory approach incorporates dialogue, trust building as well as capacity building in order to address in an appropiate setting, the past, the present and possible future conflicts inorder to establish a mechanism that allows people to reflect on issues involved and herewith establish a system that leads to a more peaceful co-extience.

KITUO and GIZ-CPS have since collaborated in the implementation of Alternative Justice Systems which are mechanisms of solving disputes or/and conflicts between parties without recourse to the courts.

The methods used in the AJS processes include mediation, negotiation and where ever possible reconciliation. Through AJS, the conflicting parties are brought together to dialogue and agree on a voluntary basis in order to forge a way forward. 

The Alternative Justice Systems (AJS) Project mechanism model is made up of Commissioners and Adjudicators.

Commissioners include the victims, offenders, elders, and representatives of organizations in the society. The work of the commissioners is to create AJS awareness or rather outreach in the community.

On the other end, Adjudicators comprise only of respectable and people of high moral standing in the society who are neither IDPs nor Offenders.

Both commissioners and adjudicators are nominated by the community. The work of the adjudicators is to facilitate using various conflict resolution mechanisms like, mediation, negotiation and other techniques, in order for the disputing parties to reach an amicable solution to their dispute.

Alternative Justice Systems derives its authority from Article 159 (2) (c) of the Constitution of Kenya, which states “….alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted subject to clause 3.“

KITUO, through the project has conducted training of Commissioners and Adjudicators as paralegals and were trained on land, property, and succession laws to empower them in promoting reconciliation in the community by settling more PEV related and community disputes in different areas that were greatly affected by the 2007/2008 post-election violence especially in the Rift Valley and former Nyanza Provinces.

Some successes, so far, of the Alternative Justice Systems (AJS) project with Future Perspectives include:-

  1. Establishment of an effective Alternative Justice System mechanism. 
  2. Establishment of a community sensitive approach that promotes sustainable reconciliation initiatives as well as future orientations on peaceful cohabitation for the IDPs and the (host-) communities.
  3. Provision of a safe space for interaction of IDPs, stakeholders and the host communities with a holistic approach, which allows all actors to address issues leading to more peaceful co-existence.
  4. Through the AJS Future Perspective Training, the IDPs have identified their strengths as well as capacity that will help them transform into a stage of self-mobilization in order to break the cycle of re-victimization.
  5. A functional and skilled team of commissioners has been established in accordance to the AJS mechanism.
  6. The IDPs and the (host-) communities are comprehensively familiarized with the methodologies of conflict resolution that the AJS mechanism uses, that is mediation and negotiation.
  7. The IDPs and the (host-) communities have obtained the knowledge of legal structures in place.
  8. KITUO’s AJS Taskforce has also established networking structures for the IDPs and the (host-) communities from the sub-county to the national level in order to initiate collaborations with other official structures and NGOs.

KITUO’s partnership with GIZ-CPS Kenya; has made it possible for the AJS Taskforce to realize acceptance by the Judiciary through presentations made to Magistrate, Court Registrars, Civil Procedure Rules Committees and Court Users Committees.

KITUO through the project has demonstrated that AJS is relevant to the Judiciary’s Transitional Framework as it will reduce the backlog of civil cases at the court by dispensing prompt justice.

The idea of AJS mechanism has been received positively by all the stakeholders involved but most importantly by the communities due to the advantages it has over the formal judicial system in dealing with civil cases. The formal judicial mechanism is largely adversarial, too costly, uncertain (power relations) and takes too much time before arriving at a solution.

It is only Alternative Justice Systems (AJS) that fosters forgiveness, reconciliation, prompt Justice as well as the possibility for the individual and community to reflect on the various levels of violence including structural violence. For instance, there are already requests from other IDP communities like the Go-down and Chepchoina IDPs who would like to be included in the AJS project moving forward.

3.0 MENTAL HEALTH AND PSYCHO-SOCIAL SUPPORT (MHPSS) PROJECT

Kituo Cha Sheria and GIZ have worked together since 2017 in providing mental health and psychosocial support to refugees in urban areas through the Mental Health and Psycho-Social support Services (MHPSS) which is under the Forced Migration Program.

THE (MHPSS) PROJECT

The MHPSS program at Kituo cha Sheria is part of urban refugee MHPSS working group comprising of UNHCR, RCK, HIAS, DRC, CVT, ReFuShe, NCCK, Hesed Africa, AAA, MSF and REFUGE POINT. The program is also an active member of SGBV (sexual gender based violence) and IPPL (integrating psychosocial peace and legal) working groups.

MHPSS’s focus is on refugees and the host community with emphasis on mental health awareness creation, individual counseling, group counseling, community forums, training of key stakeholders like the police, judiciary and other government officials on the mental health concerns among the persons of concern (refugees and host community). In addition, the program offers self care and team training to the Kituo staff and has been of support to the team in terms of debriefing and emotional support.

With refugees prone to psychological trauma due to the challenges they encounter pre-migration, during migration and post migration and psychological trauma and related issues like depression being leading causes of ill health and disability worldwide, KITUO and GIZ found it necessary to create a program which offers mental health support to the KITUO staff and urban refugees in particular with some exceptional cases from the host community.

RCKM

Kituo Cha Sheria

Success Stories-Kodiaga Prison Justice Centre

KODIAGA PRISON JUSTICE CENTER- KISUMU

Article 48 of the Constitution of Kenya specifically advocates for access to justice for all. Kituo Cha Sheria has established Prison Justice Centres that are managed and run by trained prison paralegals to assist them self-represent in court, offer legal advice to the other inmates, educating them on criminal law and guiding them on how to confidently represent themselves in Court and empower the entire prison community. Kituo has played a big role in supervising these centres and providing technical assistance in legal matters that need the attention of an advocate. To date, Kituo has established Prison Justice Centres at Shimo La Tewa Men & Women Prisons, Lang’ata Women’s Prison, Kamiti Maximum Prison, Kodiaga, Nyeri Main (King’ong’o) G.K. Prison, Kakamega GK Prison and Meru GK Prison. As a result, inmates and Prison Officers have been able to offer legal aid services to inmates and from 2010 to date 12,000 + inmates have been released following interventions by trained paralegals. The Prison justice centers have significantly contributed to the decongestion of prisons and at the same time made justice accessible to those who could not afford the services of an advocate.

This a report presented during the Access to Justice Day Celebration at the Kodiaga Prison Justice Centre…

PARALEGALS’ REPORT ON PRISONER’S ACCESS TO JUSTICE DAY  

We feel humbled to have you here today as we celebrate this year’s prisoner’s justice day. Kisumu justice center was established in the year 2015 after a training of 30 paralegals including 5 prison staff courtesy of KITUO CHA SHERIA who partnered with other organizations such as ICJ, HAKI MASHINANI, KNCHR and LEGAL RESOURCES FOUNDATION. We have today become the pillar of justice in prisons within the entire western region. Prisoners enjoy free legal advice as well as case management in terms of erecting sound grounds for their defense cases and drafting their petitions of appeals to the appellate courts and submissions and as a result, many have regained back their freedom.

We therefore wish to register our sincere appreciations to KITUO CHA SHERIA and their partners for having thought it wise to enjoin us in their vision of making justice accessible to all.

Today, Kodiaga Prison Justice Center-Kisumu is glad to report that a positive impact has been realized by prisoners within the entire western region as far as accessibility to justice is concerned. Expeditious determination of trials and appeals are among the reasons why, today, we celebrate this prisoner’s justice day. We attribute the gains that are being enjoyed by the otherwise considered society misfits to the interventions made by organizations such as KITUO CHA SHERIA, ICJ, HAKI MASHINANI, KNCHR and LEGAL RESOURCES FOUNDATION among others.

Our roles as paralegals at the Kodiaga Prison Justice Center-Kisumu include:-

  • Advising and enlightening all prisoners in matters of law.
  • Draft petitions and notices of appeal as well as submissions for convicted prisoners.
  • Managing cases for unrepresented remand prisoners.
  • Sensitizing all prisoners of their fundamental rights as enshrined in the constitution.
  • Offer orientation to newly convicted inmates and bring them up to speed with their obligations as per the prison rules and regulations
  • Draft inquiry letters elating to appeals for prisoners to different court registries.
  • Act as a link between fellow inmates and the prison administration.

As a result of our work, we have managed to register remarkable achievements in the last one year and the same include:-

ACHIEVEMENTS

  1. A total of 154 petitions of appeals have been lodged to various High Courts within the region with some of them already heard and determined while the others are pending.
  2. We have managed to lodge 139 notices of appeal to different High Courts within the region for intending petitioners to the Kenya Court of Appeal at Kisumu.
  3. We have done 101 petitions for re-sentencing to various High Courts within the entire western region with some of them already heard and determined while the others are pending.
  4. 130 submissions have been written to the Court of Appeal, High Courts and to different Magistrate’s Courts within the region.
  5. We have recorded 24 acquittals in different High Courts within the region as a result of the submissions drafted by our members.
  6. We have recorded 15 acquittals in the Court of Appeal at Kisumu as a result of the submission drafted by our members.
  7. We have recorded 21 reductions of sentences from submissions done by our members in various High Courts within the region and the Court of Appeal at Kisumu.
  8. 32 remanded self-represented prisoners whose cases were managed by the paralegals were acquitted either for no-case-to-answer or at the judgment stage.
  9. We have also made several correspondences with various High Courts within the region whereby status of delayed appeals has been reduced.

Kodiaga Prison Justice Center-Kisumu also hosted the President of the Court of Appeal Hon. Mr. Justice William Ouko and we were accorded an opportunity to present our clients’ grievances and have the same addressed with several petitioners being issued with notices to attend court for case management and hearings. The Judiciary in Kisumu also promised to be making regular visits to the prison to address challenges facing prisoner’s cases and expedite matters; this was partly thanks to the good work done by our prison paralegals in presenting quality written submissions to Court.

We however, have faced some challenges in the course of our work and the same are highlighted as follows:-

CHALLENGES

  • Due to the increased workload as a result of the facility’s Maximum Security status holding inmates serving long term sentences from the entire western region, our single computer (Desktop) is highly overwhelmed hence a need for an additional one. We also have a challenge with our HP LaserJet printer which often runs out of the toner and maintaining the same is untenable due to inconsistent funding. We wish to request that your office deem it fit to provide us with another model, preferably EPSON L220.
  • We experience inconsistent supply of stationery like printing papers, foolscaps, note books and pens.
  • Our team is lacking motivation in terms of personal effects such as toiletries, tooth paste, soap and others. We wish to urge your office to consider providing us with consistent supply of the same to boost our morale in providing the services on pro-bono basis.
  • Lack of a legal expert to support us in technical matters still remains a challenge despite several promises of visitation from CLEAR advocates.
  • Lack of an up dated library to consist of recent precedents.
  • Our strength has gone down to 14 against the initial 25 due to transfer to other prisons for the purpose of hearing of their appeals while some have been released on completion of their sentences and successful appeals or petitions. We wish to request your office to consider training more paralegals.

Dated & Signed this 30th Day of August, 2019.

WRITTEN & COMPILED BY: 

KMU/576/12LS

CHARLES ENOS MA KOKHA – SECRETARY

APPROVED BY:

KMU/364/08LS

ELIUD MOSES APWAPO – CHAIRMAN

CERTIFIED BY: 

GEORGE O. DIANG’A (ACP)

OFFICER IN CHARGE

KISUMU MAXIMUM PRISON

Success Story- Meru Prison Justice Centre

SUCCESS STORY- MERU PRISON JUSTICE CENTRE

CLIENT’S NAME: JULIUS KOOME IGWETA

OFFENCE: MURDER- HCCR.NO: 72/2005

CONVICTING COURT: MERU HIGH COURT

DATE OF SENTENCE: 26/05/2006

K.C.A APPEAL NO.164/2011: CONSTITUTIONAL PETITION NO. 12 OF 2016.

CASE PREAMBLE:

Julius Koome Igweta was charged with the offence of Murder C/Sec203 as read with Sec 204 of the Penal Code. The particulars of the offence were that on 12thday of August, 2005 at Giatune Sub- Location, Mpuri location in Meru Central killed Dorcas Kaguri. The trial court convicted and sentenced the accused to suffer death as the law provides. Aggrieved and dissatisfied by the decision of the trial court the appellant exercised his rights of appeal within 14 days by appealing to the Court of Appeal in Nyeri vide K.C.A.No 164/2011. Through a judgement that was delivered on 24thJune 2016 the same was disallowed.

Having exhausted all appeal avenues the petitioner filed a constitutional petition under Article 50 (6) of the Constitution of Kenya 2010 seeking leave to move the court on matters of New and Compelling Evidence. This was barely two months after the dismissal of the appeal.

Among the issues raised by the petitioner were:

  1. That the petitioner has suffered both physical and psychological torture for being deprived the right of life arbitrarily contrary to, or in breach of Article 26(1)(3) of the Constitution of Kenya.
  2. That the law was not fully observed when convicting and sentencing the petitioner, which denied him access to Justice thus breached the provisions of Article 48 of the Constitution of Kenya
  3. That the petitioner has new and compelling evidence which will be adduced before this court during the time of hearing of this application.
  4. That the petitioner be allowed to recall both PW2 and PW4 to give their testimony as new and compelling evidence.
  5. That the Mandatory Death Sentence meted to the petitioner was excessive, arbitrary and inhuman, and deprived the petitioner’s right to a fair trial contrary to Article 50(2) of the Constitution.

In the end the petition which was before Hon. Justice Said Chitembwe partly succeeded as follows:

  • There was No New and Compelling Evidence to warrant having a retrial,
  • That the death sentence meted out to the petitioner is set aside.
  • The petitioner shall serve twenty (20) years imprisonment and that the sentence shall run from 10th November, 2005 up to the date the sentence is completed in 2025.

The sentence expiry date being already defined; the appellant was unable to benefit from the Remission of sentence by the prison authority.

Paralegal and Human Right Officer Intervention

With the knowledge that the jurisdiction to adjudicate and determine the issue of remission of sentence falls within the sole purview of the Kenya Prison Service as per section 46(1) of the prisons Act (Cap 90 Laws of Kenya) which gives prison authorities the power to grant remission of sentences based on  good character and industry. Following his character and good conduct, the petitioner deserved remission to his sentence as per the above section. Since the judgment delivered on 1/10/2018  limited the prison authority from exercising this mandate as it defined the expiry date of the sentence as it stated that the sentence shall run from 10thNovember,2005 up to the date the sentence is completed in 2025; the Human Rights Officer Mr.Joel Katorima, through the officer in-charge MeruG.k prison, took the initiative of writing to the Deputy Registrar Meru High Court seeking clarification in respect to the petition and advice on how to harmonize it with the provisions of the Prisons Act as stated above.

Conclusion

The indefatigable efforts of the Officer In-Charge Meru Main Prison- A.C.P. David W. Ndumu and the Human Rights Officer attracted the unbiased assistance of the office of the DeputyRegistrar, the office of the D.P.P, who in turn consulted the higher authorities involved and got a positive response in favor of the petitioner.

On12th July 2019 a Production Order was issued by Meru High Court instructing the Officer In-Charge to produce the petitioner in question before Meru High Court. The petitioner with the basic knowledge of paralegalism explained himself to the learned judge,Hon.Said Chitembwe who delivered a judgement in favour of the petitioner as it  reads “The judgement which was delivered on 1/10/2018 is hereby reviewed. The appellant to serve twenty(20) years imprisonment from 10/11/2005 and the petitioner to be entitled to remission under the prison laws”. The matter is now a success story in that the judge rectified the apparent error and allowed scope for the prison authority to institute remission of sentence by undoing the definition of the expiry date of sentence from the judgment. As at now, the appellant is reintegrated back to the society having benefited from the remission of sentence.

Report Compiled by:

 Joel Katorima

Human Rights Officer-Meru Prison Justice Centre