Tax Relief Regulations for Persons Living with Disabilities (PWD’s) are Simply Unconstitutional


I would like to begin this paper by stating a few irrefutable facts. Firstly, persons living with disabilities (herein PWDs) form a small but significant segment of Kenya’s population. While the numbers 1.3 million; 3.5% of Kenya’s population; (Census 2009) explain the “smallness’’, their significance springs from values of human dignity, legal trends today and best international practices. Secondly, contrary to popular conceptions, disability is for everyone.

As much as policy makers and legislative drafters like to think of disability laws as “special laws” for a few people, they always forget the obvious nature of disability. It never comes by invitation. Disability does not knock or choose.  Lastly, it is important to say that as much as tax relief is a privilege, it is not a favor from the State, it is a constitutional right. Those who write tax relief regulations or policy should therefore not behave as if they are doing charity work. It doesn’t make sense that something meant to make life easier for PWDs, has made things even harder.

I am not in any way suggesting that tax relief for PWDs should be done without regulations; I am of course in support of protection of the intergrity and sanctity of the programme, however, regulations that primae facie exhibit stupidity, ignorance and meant to strain  already strained people do not in any way enforce the aforesaid  values. It is premitivity and lack of wisdom that makes one to write regulations that requires PWDs to move back and forth from their employers to the council of persons with disabilities, to the Ministry of Health while ignoring mobility challenges in an era of Huduma Centers. It is preposterous that these regulations require PWDs to go for medical assessment every time they need to renew tax relief certificate as it ignores PWDs with permanent disabilities. This is to say that PWDs with albinism will grow melanin or that amputees will grow limbs within five years of tax relief? The long time it takes (about 4 months) to process tax exemption certificates adds to the illogical and disturbing culture of peripheral treatment of PWDs as aided by these regulations.

My focus however is to demonstrate how these regulations offend the letter and the spirit of the Constitution of Kenya (2010). It is important to note that one of the pillars of the Constitution of Kenya (2010) is elevation, protection and respect of human rights.  It has even gone further to incorporate international norms and instruments in this regards.

The Rights of PWDs are therefore not just given prominence through Article 54 of the Constitution of Kenya (2010) but domestication of   UN International Convention on the Rights of PWDs and its protocols and interpretation of Articles 2(5) and 2(6) of the Constitution of Kenya 2010.

Before I get to the unconstitutionality of tax relief regulations, I would like to define disability from the lenses of the Constitution of Kenya 2010. Article 260 defines disability to include, any physical, sensory, mental, or psychological impairment, condition or illness that has or is perceived by a significant sector of the community to have a long term effect on an individual’s ability to carry out day to day activity. Affirmative Action on the other hand means, any measure designed to overcome or ameliorate an inequality in the system, denial or infringement of a right or fundamental freedom. This therefore means that PWDs are disadvantaged and affirmative action comes in to try and mitigate the situation hence tax relief. How are these regulations unconstitutional?

Economic Rights Perspective

The preamble of the Constitution of Kenya 2010 makes a promise of nurturing the well-being of individuals. Well-being from PWDs point of view is that they should be able to get basic needs and economic empowerment. The difficulties and unique challenges that PWDs go through in school or at work places should not be lost on anyone. It is out of these that they are entitled to tax exemption.  These regulations negate, as oppose to acting as a hand-maiden for this programme. When PWDs are made to go through a winding process between the doctors to the tax man to their employers and a cosmetic disability council, it results to denial of economic rights. It does not make sense that getting a tax exemption certificate takes up to four months. The saddest part of this is that as they struggle to get the certificates or renew them; employers are always happy to tax PWDs. If I did not know any better, I would call that a conspiracy to commit theft by the State.

Right to Human Dignity

The Constitution of Kenya (2010) requires that human worth be respected and protected. Article 28 of the supreme law states that the right to dignity is inherent. As much as the definition of human dignity is amorphous, it boils down to the sense of “humanness.”  

PWDs in Kenya have to deal with issues of dignity and self-worth in an environment that is disability unfriendly.

Asking PWDs who are visually impaired or have mobility challenges to submit their documents and follow up on them; in disability unfriendly buildings like the one that houses the Ministry of Health is not a breach of this right but a disgrace. I am also concerned about the back and forth movements from the employers to the tax man to the Ministry of Health keeping in mind Kenya’s chaotic public transport system. I look at this as very slow thinking from the persons concerned and a disregard of a constitutional principle.

Right from Discrimination

The Constitution of Kenya frowns upon any form of discrimination. Article 27 (4) states that it is against the aspirations of Kenyans to discriminate against anyone – directly or indirectly. Do the tax relief regulations discriminate against PWDs? The simple answer is yes and I will explain. I go with the legal maxim that whoever alleges must prove, but how many times should they be made to prove their disability. A regulation that requires all PWDs to go for medical assessment every time they want to renew their tax relief certificate is discriminatory at best. Making the process too complicated also amounts to putting PWDs on the spot which is discriminatory. I see this as inadequate use of common sense and an attempt to resist creativity from the State.

Rights to Affirmative Action

The Constitution of Kenya (2010) through Articles 27 (5) and (6) recognizes affirmative action- tax relief for PWDs is one such action. The law puts only one condition- it has to be on genuine need. This means that any legislative or regulatory body has the duty to promote the programme and not kill it. When regulations are so stringent to the point that they make other PWDs give up on the process, they breach these provisions.

In Conclusion

As I have stated before, as a lawyer I was taught that the rules of procedure are made to be hand maidens. This means that they need to help substantive provisions. Tax relief regulations for PWDs as presently constituted and enforced are but a mockery to this.

There is need to urgently change this situation and I have a few recommendations:-  

There is need for legislative interventions. I am calling for an amendment of the Persons Living with Disability Act. The Act needs to give parameters to the regulations in line with the challenges and realities of PWDs in Kenya today.

There is need to mainstream the process so that it is faster and easier fop ;PWDs. One stop shop like Huduma center where PWDs can get everything done may be one quick solution.

Even as Kenya prepares for a census in 2019; there may be need to invest in a data base with information for PWDs. Those with permanent disabilities may be registered once to avoid redundancies and bad jokes currently encountered.

By:

Ouma Kizito Ajuong

Advocate   

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SUCCESS STORY FROM KAMUKUNJI COMMUNITY JUSTICE CENTRE – VINCENT ONANO ONDEGO

Success: Vincent Onano Ondego
Vincent Onano Ondego approached the Kamukunji Community Justice Centre (KCJC) seeking legal advice and possible representation regarding a dispute with his landlord. Vincent Onano Ondego, a humble, middle-aged man with a family of seven children approached the justice centre in 2018, seven years since he’d heard about the services offered by the justice centre.

Sometime in 2011, a friend living with Onano in Nairobi’s Majengo neighborhood had informed him of legal assistance he got from the justice centre in a dispute with his tenant. Mr. Onano had worked as a night guard for much of his adult life struggling with raising his family when he unexpectedly lost his job in 2015. Even with this setback, life had to move on and Onano set up a makeshift ‘kibanda’ on an open space adjacent to his house to start a shoe-making and repair business. Mr. Onano, the cobbler thrived in this area and worked at his station until sometime in August 2018 when he served his landlord with notice to move house. The landlord turned hostile and claimed ownership of the business operation space as part of his property. Onano could not fathom this claim as he had painstakingly built up his premises over time and it was the only source of livelihood for his family.

Afterwards the landlord locked his work station illegally, Onano visited the Kamukunji Community Justice Centre to get assistance. He was directed to the assistant chief who offered authorization for Onano to continue with his work as the kibanda was on a road reserve and not on the landlord’s property. The justice centre also wrote a letter to the landlord asking him to cease the illegal eviction. Armed with the two letters, Mr. Onano went back to continue with his work, however, the wealthy landlord co-opted other local administration officials and police officers to disregard this legal position. Guided by the community paralegals, Onano approached the rent restriction tribunal and filed a claim. The tribunal is established under Section 4 of the Rent Restriction Act, Cap 296, Laws of Kenya and is mandated to determine disputes between landlords and tenants of protected tenancies, which are residential buildings whose rent does not exceed Ksh. 2500.

On 26th November, 2018 the hearing was conducted and Mr. Onano got orders protecting him from eviction even as he self-represented himself with the guidance of the community paralegals. The orders were served to the area police division head for enforcement and after a tedious process of follow-up process, the business premises were opened and Mr. Onano was back in operation. Mr. Onano was very grateful to the Kamukunji Community Justice centre and the community paralegals for walking the long journey with him to protect his rights. A lot of time was lost when his kibanda was illegally closed but now Mr. Onano is a happy cobbler fending for his family and serving the community.

RCKM

Kituo Cha Sheria

SUCCESS STORY FROM KAMUKUNJI COMMUNITY JUSTICE CENTRE – JOSEPH ONYANGO

Success Story: Joseph Onyango
J
oseph Onyango approached the Kamukunji Community Justice Centre (KCJC) seeking legal advice and possible representation regarding a succession matter in his rural home in Siaya County. Mr. Onyango was a founding member of KCBONET, a local Community Based Organization which is the host entity of the Kamukunji Community Justice Centre. He was therefore not new to the work undertaken by the centre. He sought legal assistance on a succession matter undertaken in 2013.

As a resident of Majengo, Nairobi, Mr. Onyango was not aware of the process of succession that was initiated and completed illegally by a member of his family of seven brothers. The area land registrar undertook sub-division without consultation and disinherited some members of the estate. In December 2016, with assistance from the justice centre coordinator Mr. Ezekiel Njenga; Mr. Onyango started the journey of correcting an injustice. They revived and followed up the case at the Siaya and Kisumu Law Courts, for three years they together uncovered a lot of misinformation, lies and forgeries in the succession documents used including fake names and signatures.

Their hard work paid off when the Confirmation of Grant was issued by the Court sitting in Kisumu for the Estate of Mzee Obaki to be re-distributed correctly and involve all members of the Estate. The Court issued orders for the title deeds to be surrendered to the land registrar. The succession process will kick-off on the 31st of January, 2019.

Mr. Onyango says he’s been helped a lot by the community justice paralegals and while the process has been long the family has got another opportunity to do the right thing and be mindful of all family members.

RCKM

Kituo Cha Sheria

REBUILDING THE IEBC: KENYA’S QUEST FOR A STABLE &SUITABLE ELECTORAL MANAGEMENT BODY (EMB)

REBUILDING THE IEBC: KENYA’S QUEST FOR A STABLE &SUITABLE ELECTORAL MANAGEMENT BODY (EMB)

Electoral justice is one of the predominant themes of 2017 general elections in Kenya. While it carries with a number of components, a strong, stable and suitable electoral management body (EMB) is crucial. The quest for an independent and impartial election administrator has however eluded Kenya for a long time. The last couple of months have helped fortify this position as the Chebukati-lead IEBC has treated Kenyans to political leanings, bias, public wrangles, unprofessionalism, bangled elections, accusations and counter-accusations punctuated by public resignations of commissioners hence facing imminent disbandment, contrary to the letter and spirit of the Constitution of Kenya 2010 and International standards of election management. This article is dedicated to question of stable and suitable electoral management body for Kenya. How can Kenya break the jinx of incompetent EMB’s? Can Kenya finally get it right with an EMB? Which is the road to achieve this, legal or otherwise?

Centrality of EMB’s to Electoral Justice   

The concept of electoral justice is three fold, thus: ensuring that each action, procedure and decision relating to the election process complies with the legal framework, protecting and restoring electoral rights and giving people who believe their electoral rights have been violated, the ability to file a challenge, have their case heard and receive a ruling. These cannot be achieved without a proper, functional, stable and suitable EMB. In retrospect, if the election administrators deliver free, fair, credible, verifiable and lawful elections then, the need for electoral justice vanishes. The lack of a proper EMB in Kenya has over the years plunged Kenya into a constant need for electoral justice.  This has metamophosized into election violence witnessed in 1992, 1997, 2007 and 2017. Furthermore, Kenya has heard numerous changes and failure of election managers and administrators pointing to the instability hence the need to rebuild and find a solution. What does history say?

Historical Appreciation of EMB’s in Kenya

Elections in Kenya can be traced back to 1963. The first of them termed as “the pre-independence election” pitting KANU against KADU. These elections were conducted by the provincial administration but were seen to be free, fair and credible as there was no incumbent. By 1966 the tide had turned, “the little general election” meant to neutralize Vice- President Jaramogi Oginga Odinga began the journey to election turmoil in Kenya. The elections were more or less managed by KANU and the Provincial Administration whose duty was to please President Kenyatta and Mboya. KANU and President Kenyatta’s cronies kept on killing the opposition, weakening the democratic space and manipulating the election managers. This habit was picked up by President Moi, climaxed in 1988 by the Mlolongo elections where, manipulation of election results, intimidation, electoral violence were the order of the day, presided over by a dysfunctional EMB.

 President Moi eventually instituted minimum electoral reforms and allowed for multi-party elections in 1992. He attempted to create the first electoral commission in Kenya, however these gains were quickly washed away as they were all appointed by the incumbent and were marred by controversies. He then attempted to create an impartial electoral commission in 1997. Unlike 1992, this time, he appointed commissioners from a list provided by opposition parties under the Inter-Parties Parliamentary Group (IPPG). This did not however change perception of bias, rigging and incompetence of the EMB.

In 2007, the symptoms of a bad EMB turned into a full-blow disease. The Samuel Kivuitu ECK found itself in the middle of a storm. The election was flawed and the EMB failed to establish the credibility of the tally process to satisfy all the parties and candidates.  Significant, is the post- election violence that almost plunged Kenya into civil war.  For the first time, Kenyans were indicted at the International Criminal Court (ICC) for crimes against humanity, displacement of populations amongst others. It was a manifestation of a broken system. This made Kenya to stop and reflect. Under the stewardship of President Mwai Kibaki and the Rt. Hon. Raila Odinga lead Kenyans to a new constitutional  dispensation that was meant to inter alia get elections right. 

Through the Constitution of Kenya 2010, and the Act of parliament, there was a change of name of EMB, structured leadership and functions. Most important was method of appointment to ensure that the commissioners are professional, impartial and credible. This desire was however not achieved as Isaac Hasan Commission was again disbanded over controversy after 2013 general elections. Like the Kivuitu Commission and Moi’s electoral Commission, they were marred by allegations of bias, favourism and corruption. Again parliament through a joint parliamentary group lead by Sen. Orengo and Sen. Murungi amended the law and set the stage for a new Electoral Commission. Kenya has however remained at the same place as the Chebukati-lead Commission was responsible for bangling the 2017 presidential election. They have played out their bias in the public gallery. The Commission and the secretariat have been at odds over corruption allegations and with their days are numbered.

So, why is Kenya revolving around the same place with regards to EMBs? If history is to go by, Kenya’s election managers seem to have a life expectancy of five years. This kills stability and institutionalization of elections. Time has moved and with it revolution of the law, however, there is need to rebuild the IEBC and to find stability.  Which is the route for this?

Making the Appointment of Commissioners an Apolitical Process

There is one common denominator in all the EMBs since the conception of elections in Kenya. They are highly politicized. The politicians from the Government, opposition or parliament always wants to manipulate or influence the process of appointment of officers or commissioners of the EMBs and the working of the commission.. Inspite of the law advocating for a competitive and professional process in appointment of commissioners, the politicians still find a way to influence who is appointed. This means that although Kenya seems to have moved on, the mentality is that of the IPPG in 1997. This leads to a short lifespan for the commissioners as politicians interests are often short lived. In addition to this, are the wrangles and bias within the commissioners as a result of loyalties to different parties and politician as manifested by the present IEBC.  One solution for this is to kick or minimize political influence. Public participation and Kenyans owning the process may also help in changing things and getting people who are professional as well as neutral in the commission. The other proposal has been to get foreigners-especially for the leadership- who have the education and experience to run election in Kenya. Given that they are foreigners, they may not owe allegiance to the politicians and hence neutrality and impartiality.  

Legal and Legislative Framework for the EMB

The Constitution of Kenya 2010 promulgated in the backdrop of the 2007 post-election violence was meant to provide principles and a road map to free, fair, credible and verifiable election processes. The IEBC is established in article 88 of the supreme law. The law is elaborate on the procedures of appointment and the functions of the commissioners.

The IEBC Act No. 9 of 2011 further elaborates on function and composition of the commissioners. There is however, need to amend the law to synchronize the functions of the secretariat and the commission. Another area of amendments could be section 30 of the IEBC Act. Those who run elections in Kenya need to be held personally responsible when elections go wrong. If this is done, future leaders will not take election management as a joke as they presently do. There may be also amendments with regards to the structure of IEBC. The rationale for this is if there is need to change, then, change of personnel only is not sufficient.   

Civic and Political Education for Kenyans  

Developing a political culture which is bread by civic education may help in building a stable IEBC. Kenyans need to understand the pivotal role played by the IEBC. There is need to understand the relationship between democratic elections, leadership, development and the needs of the people. Kenyans need also to understand the working of IEBC and the avenues for challenge in the event of a complaint. Civic and political education may also help Kenyans to deal with the ghost of the past. Elections officials should be protected from intimidation and violence and not at the mercy of politicians. It is ok to play the tune of our favorite politicians and support or condemn the IEBC whenever it is relevant, however,  that will not help Kenya institutionalize elections   

The IEBC and the Other Agencies

The IEBC should be aided by the other Government agencies. One of the major reasons for their failure is that they are always looked at in isolation. Other than the police and the ministry of interior, the office of the Attorney needs to be very active to ensure that EMB’s always abide by the law. The Office of the Director of the Public Prosecution has a role to ensure that those who commit electoral offences are convicted, inclusive of senior election officers.    

In conclusion, it is important to rebuild the IEBC. It may be important for President Uhuru Kenyatta and the Rt. Hon. Raila Amollo Odinga, along with parliament to critically look at these issues and perhaps consider change of tact and philosophy when dealing with IEBC

By

Ouma Kizito Ajuong’Advocate

CHUFF FROM THE GRAIN: A STEP INTO THE CONSTITUTIONAL AMENDMENT DISCOURSE IN KENYA

CHUFF FROM THE GRAIN:  A STEP INTO THE CONSTITUTIONAL AMENDMENT DISCOURSE IN KENYA

While it is true that most constitutional amendments and/or legal milestones are often conceptualized as a political process, it is not always just politics. The need for constitutional amendments as amendment of any law thereof is born out of the fact that societies evolve and change. Law as a normative factor must therefore serve the needs of the times. Mwalimu Julius Nyerere liked countries to growing babies and Constitutions to babies’ clothes. He therefore opined that as babies grow, it is only practical that they get bigger clothes. This must however be distinguished from political play. Constitutional amendment process need not be left at the whimps of the politicians as they are often myopic and their game is all about power.

In Kenya, the Independence Constitution was amended a couple a times in a bid to expand the democratic and political space. It is however important to remember that the first of these amendments were made with intentions to create an imperial and centralized presidency. This is what happens when you leave it for politicians as Kenya did. The Constitution (2010) is however different. It was created as a people centered document with referenda or popular initiative as a means to change or amend the most significant parts of the law. This has not deterred the current political debate on constitutional amendments.  There are politicians who believe that Kenya has evolve and needs change on one side, and those who see the call for referendum an unnecessary distraction at a time for work and economic growth. This article doesn’t think these calls are a waste of time, but there is  need to separate  the grain from the chuff, thus, areas  that  need amendments and areas that may not need right now

The Constitution of Kenya 2010 is based on a presidential system. The president is inter alia the Head of State, Head of Government and Commander -in- Chief of the Defense Forces as stipulated in article 131 of the supreme law. Furthermore, article 132 of the Constitution of Kenya sets out the functions of the President to include, submitting reports to Parliament on different issues.  Parliament ought to be independent pursuant to article 95 and 96 of the Constitution 2010; however, Jubilee Party tyranny of numbers has led to questions as the opposition’s ability to offer alternative leadership

There are number of Constitutional amendments that have been proposed in this regards. One of these proposals is a Rotational Presidency System to replace the Presidential System. The essence of this is the argument that the Executive as currently constituted is thine and not as inclusive as required. Under this proposed system, the people chose a few people and they take turns in leading as President, while the rest are Cabinet Secretary.  If the Presidency is to be rotated, it may take away the sting from the position. Moreover, all Kenyans will own it as opposed to a few tribes. The proponents of this proposal insist that Rotational Presidency may save Kenya from periodic divisive election, characterized by violence, loss of property and life.  There are more questions with this proposal as Rotational Presidency takes direct power from the people for a long time. The criteria for picking or electing those who will be rotated is not so clear, most likely it will be for the elite. There is also no guarantee that these elected elite will not hold the Government ransom or begin internal wars. This system of Government also makes it hard to do checks and balances as there is no opposition

The Other proposal is to change Government from a Presidential System to a Pure parliamentary System, where instead of a President there is an Executive Prime Minister as head of Government and Commander-in-Chief of the Defense Forces. Under the Constitution of Kenya 2010, the President and the rest of the Cabinet is subject to very little Parliamentary scrutiny pursuant to article 132(1) c and 152(3) of the Constitution of Kenya. The proponents of this system say it is the most ideal for a multi-cultural society like Kenya. This system however means that the Parliament rather than the people. Other than politics, as lawyers, the difference between a presidential and a parliamentary system is as good as the people managing the system.

There is also a proposal to expand the Executive and introduce the Office of the Prime Minister and two Deputies, in addition to, the President and his Deputy. This system anticipates sharing of Executive power between the President and the Prime Minister. Uganda and Tanzania are prominent for this system save for the design of the system. The opponents of this proposal are concern over a blotted Executive. If this is to be added the two-tier legislature the questions of the big wage bill is still with Kenyans.

There is also no Guarantee that a bloated Executive will solve the problem of inclusivity. The only thing one can be sure is this system will benefit the elite.

Lastly, there is a proposal fronted by the former Prime Minister Rt. Hon. Raila Odinga. He feels that the Constitution needs to be amended to introduce a third tier of devolution. Odinga is seeking to make counties economically viable by going back to the fourteen economic blocs as proposed by the Bomas draft. This means that Kenya will have to build devolution upwards as well as downwards While Odinga’s intentions are noble, the ethnic politics within the counties may not give way for such amendments. There is so much ethnic colonization of Counties in Kenya. The other is the public wage bill as well as blotted elections which is already an issue

There are areas that need amendment in the Constitution of Kenya 2010. Some of these have been tested by the system over the ten years after the promulgation of the Constitution 2010. These are areas where the Constitution has remained silent when confronted. As much as the  Supreme Court is equipped to give advisory opinion under article 163(6), there is need to reconcile these with the law hence amendments.

 Article 1 of the Constitution of Kenya 2010 gives sovereign power to the people of Kenya. This can be exercised directly or indirectly. When it comes to indirect exercise, it is clear, as Kenya the subsequent chapters that are elaborate on representation and separation of powers. The silence of the law is loud with regards with direct exercise of sovereign power. The law gives citizens a choice, but to what extend can they exercise these powers directly? Do citizens in Kenya really have a choice to reject the institutions and exercise the sovereign power? This provision in the Constitution of Kenya 2010, need to be amended so as to take away the ambiguity.

The other area that may require amendments is articles 93 and 96 of the Constitution of Kenya 2010. The constitution was built on a triple legislative structure. They include, National Assembly, the Senate and the County Assemblies. This has created a lot of wrangles, double work and a huge wag bill. The Senate was created so as to develop legislation for checks and balances and to enable devolution. This is work that should have been given a time limit as Kenya strengthens the County assemblies. As much as scrapping of the Senate may  be a very contentious issue, it may save the wage bill and devolution will make more sense  when and if the County assemblies are strengthened in terms of finances, professional capacity, the breath of legislation and the economic viability  of the Counties. If this is to be done, there may also be need to amend the enabling Acts of Parliament. 

Related to this is the position of the women representative. There are proposal to the effect that it should be scrapped off. The reality so far is that as much the position helps in getting to Gender parity, there is very little they can do little without a fund. The same story is told of the Members of Parliament who represent special group. Scrapping these off gives Kenya an opportunity to rethink representation. The idea of representation today is just for show and it doesn’t help in transforming the Kenyan society. 

Election matters in Kenya have also revealed a lot of gabs in the law. The questions of repeat election, pursuant to article 140, need to enumerate so as to bring clarity. There are other areas that may need clarity such as what needs to happen when a candidate withdraws from a presidential race. There have also been calls to extend the timelines for determination of Presidential petitions.

Lastly, there are the questions of assumption of office of Deputy Governors in the event of death or incapacity. The Constitution 2010 in article 182(2) set the Deputy Governor to take over for the rest of the term in the event of a vacancy. This provision is seen as cheating the voters especially in the event of death and where it takes place in the beginning of the term. This article may be amended to provide proportionality, to say that the Deputy Governor is to take over when the Governor has spent about half their term.

By;

Ouma Kizito Ajuong’Advocate

Embracing Alternative Dispute Resolution (ADR) Mechanisms in Dissolution of Marriages and Matrimonial Property Cases

Embracing Alternative Dispute Resolution (ADR) Mechanisms in Dissolution of Marriages and Matrimonial Property Cases

Family may be defined as the basic social unit that builds up a society. This is made possible by the right to marry. The right to marriage is therefore not only sacred but also facilitated and protected by the laws of the State. This is to the extent that divorce and dissolution of marriages is frowned upon as a matter of public policy. The Constitution of Kenya 2010 through article 45 (1) reiterates the centrality of family as a unit of society and as so it is to be protection. Article 45 (2) provides for the right of every adult to marry.  

The International Convention on social, Cultural and Economic Rights through article 10 (1) also recognizes the status of family.  This does not however mean that marriages do not get dissolved. It does not mean that families do not split. As much as the last census indicate that only about 1.5% of marriages end in divorce, these statistics may have just turned on their heads in the last eight years. This is considering the rapidly changing society and moral fabric. Simply put, there is likely more divorces and dissolution of marriages today as opposed to the past even with the reforms. This translates to more cases that take a long time for the courts to settle and everyone loses. ADR mechanisms are already in use in solving family disputes and dissolution of marriages especially customary law marriages in the form of TDRM. This paper however seeks to expand the idea to include, negotiation, mediation and even arbitration use in dissolution of marriages contracted by statutorily. Why not give parties to a divorce an option of ADR as opposed to an adversarial system?

Divorce and matrimonial property causes are ripe-so to speak- for the use of ADR mechanism. This is because of their personal nature. As much as they are regulated by State, family law falls more in the realm of personal law distinguishable from territorial law as discussed in the landmark case of Virginia Edith Wamboi Otieno V Joash Ochieng Ougo (1986) e KLR (S.M Otieno Case) The Constitution of Kenya 2010 in article 45 (4) (a) alludes to the personal nature of these cases. As much as many don’t think of them in that way, marriages exhibit the characteristics of contracts. They are based on consent, it is only a preserve of adults and there is an agreement resulting to rights and duties within the marriage.  It may therefore not be wrong to give the parties a chance to choose on how to dissolution their marriage or share matrimonial properties as we readily do in contract law.

The Aspect of matrimonial Properties through the reforms in family law has made divorce matters more contentious.

The Constitution 2010 in article 45 (3), opens the door to matrimonial property law. It states that parties to a marriage have equal rights before, during and after a marriage.

Therefore this introduces matters of division of properties and custody of children. The jury is still out on whether matrimonial property Act applies to customary law marriages but   what if parties to of a divorce were allowed to negotiate or mediate or go through arbitration as opposed to the adversarial system of litigation?

The personal nature of matrimonial causes always carries with it emotions and personal feelings. Sometimes they tend to get nasty and a lot of dirty linens get washed before a stranger (Judicial Officers) and sometimes the public. This can be solved by use of ADR mechanisms as parties have the flexibility to choose an adjudicator or even the venue and procedure of solving the cases. The adversarial nature of litigation does not always help in dealing with underlying issues that often characterize matters of divorce and matrimonial causes.

What are the advantages of ADR as opposed to litigation in matrimonial causes? If ADR mechanism where to be embraced fully, this will help ease the backlog of cases and allow judges to deal with cases that cannot be solved through ADR. The judiciary has been dealing with the issue of backlog for a very long time and perhaps this proposal may help as part of the solution. This will also help in expanding the area of ADR hence more work for arbitrators and mediators

The other advantage is expeditious disposal of cases. The Constitution 2010 in article 159 is crafted with the maxim justice delayed is justice denied. It encourages the use of ADR and TDRM, mechanism. If parties to a matrimonial cause are allowed to do ADR, there are chances that the matters will be handled expeditiously. This is because matters such as the calendrers are controlled by few people as opposed to litigation. The rules of evidence and matters of trial are different. This is also advantageous for couples who do not want to be dragged down by divorce cases

Lastly, there is the issue of cost. This is however relative depending on the method of ADR those parties may choose. If it is to be done expeditiously, it may be cheaper and worth it as ADR has also the reputation of giving win-win results as opposed to litigation which is adversarial in nature

In conclusion, the only thing that may work against embracing ADR fully in matrimonial causes is the feeling that it may be abused and therefore break the public policy that frowns upon divorce. This argument is however a see-saw as ADR may also be very instrumental in maintaining the public policy

By:Ouma Kizito Ajuong- Advocate

Success stories from Nyando Community Justice Centre

NYANDO CJC LOGOSuccess Story from the Nyando Community Justice Centre

Article 48 of the Constitution of Kenya specifically advocates for access to justice for all. Kituo Cha Sheria has established Community Justice Centres that are managed and run by trained community paralegals to assist members of the community at the grassroots level across the country agitate for their human rights and resolve disputes without resorting to the court process.

The community paralegals offer free legal advice to the members of the public, educate them on various aspects of law and guide them on how to participate in governance and empower the entire community. Kituo has played a big role in supervising the community justice centres and providing technical assistance in legal matters that need the attention of an advocate. To date, Kituo has established Community Justice Centres in Kamukunji, Kibera, Korogocho (all in Nairobi), Kitui, Turkana, Nyando (Kisumu), Kisauni (Mombasa), Lamukani ( Kwale) and Marereni (Kilifi). The Community Justice Centers have significantly contributed to the goal of promoting access to justice for the poor and marginalized people in society and at the same time made justice accessible to those who could not afford the services of an advocate.

Success stories from Nyando Community Justice Centre

Rose Everline Tendwa 46 years old, resident of Homa-bay County approached Nyando Justice Centre seeking for legal assistance on family succession matter.

Rose who is also a widow and a third wife to her later husband Michael George Tendwa explained to Judith Ochanda, a community paralegal based at Nyando Commuinty Justice centre how her other two core wives sidelined her on a family succession plot.

According to rose, her late husband had properties including land, commercial buildings and rental houses in Homa-bay town. After her husband’s death they sat down as a family and agreed to do succession so that each household would have a share of the deceased property.

Rose later noticed that despise the family agreements on the said mattter, her step sons excluded the name of her daughter in the list of beneficiaries. They went further and filled this matter in court. Rose made several efforts to be served with the file to acquaint herself with the court proceedings but her efforts were thwarted down.

Rose decided to visit our justice center after she got our contacts from a radio talk show on radio Ramogi F.M. (avuncular local radio station where Kituo community paralegals frequently engage the community by educating and informing them on legal matters).

Judith Ochanda wrote a letter to the Chief Magistrate Homa bay court requesting them to grant Rose access to the case files.

They responded positively. Rose raised a complaint on the matter filled with the court and on 24th July 2018; the succession cause no.5of 2013 that was filed was cancelled by the court. The court further ordered that a fresh succession cause be done with all the names of the beneficiaries including Rose’ daughter and the properties of the deceased be included. Defamation case between Caren Onyango our client and Shadrack was successfully concluded through alternative dispute resolution.  Caren reported that they had a land boundary dispute between her and Shadrack her neighbor who trespassed into her land destroying the boundary and when she went to ask him why he was interfering with the boundary; Shadrack started calling her names and hurling abuses at her in public.

A demand letter was written to Shadrack to come for ADR in the office; both came and we had a lengthy talk and discussion with both of them; we managed to reconcile the two who later shook hands as sign of peace and reconciliation. We then advised them to go to the lands office and get the services from the lands surveyor to verify the boundaries so that they would get the real picture of each person’s boundary so that they cannot have future disputes between them.

In partnership and networking with other organizations our paralegals have attended workshops/trainings in different forums through invitations from different organization:

  1. On 20th July 2018, two paralegals from Nyando Justice Centre attended half day interactive security meeting between the Boda Boda operators and the senior police officers right from the County commander to the OCS’s manning all the police Stations within the two Sub-counties of Nyando and Muhoroni; this was geared towards creating peace and harmony between the police officers and the boda boda riders operating within the two Sub-counties. It had been noted that the mistrust and the poor working relation the law enforcement officers a recipe to insecurity, violence and in most cases chaos triggered with the Boda boda riders viewing police officers as their enemies and would sped off at the highest speed an office is on sight precipitating numerous accidents. The law enforcement officers a veered that the  life and safety of both boda boda riders and their passengers  since  it has always been noted that most of the boda boda operators do not obey the traffic rules hence causing a lot of accidents on the roads; most of them also do not have insurance and driving license; Boda boda operators also complained about some police officers taking bribe from them; in attendance were chairmen of the boda boda sector, Nyando paralgals, OCS   from different police stations within Nyando and Muhoroni; County Commander, the deputy County Commander , OCPDs from both the Sub –Counties and other stakeholders from different organization from Muhoroni and Nyando sub county.  The meeting was organized by Transparency International (TI).
  • This enable us know that most of the boda boda operators do not have a driving license with two classes as required by the traffic laws and they do not also have insurance cover that is supposed to be renewed after a period of time.
  • The Boda boda riders were advised to go for driving classes and obtain a driving license with two classes, each rider must have two helmets one for the rider and one for the customer, and each bike must not carry more than one passenger.
  • They were asked to report any case of bribery to the OCS, OCPD or to the county commander if the OCS or OCPD so that action can be taken towards the police who has been bribed.
  • The boda boda riders complained that they were being harassed by the APS(Administration Police) from Awasi at night and being robbed off their cash ; which the county commander said was very wrong and should be reported for action to be taken against the APS that are harassing them.
  • The meeting also enabled the boda boda riders to openly air their grievances without fear, with the law enforcement officers, explicitly explaining what the traffic laws entails regarding road safety and the traffic rules as enshrined in the traffic regulations. 

    RCKM

    Kituo Cha Sheria