Types of violence against women

Domestic violence

Domestic violence, also called domestic abuse or intimate partner violence, is any pattern of behavior that is used to gain or maintain power and control over an intimate partner. It encompasses all physical, sexual, emotional, economic and psychological actions or threats of actions that influence another person. This is one of the most common forms of violence experienced by women globally.

Domestic violence can include the following.

Economic violence

Economic violence involves making or attempting to make a person financially dependent by maintaining total control over financial resources, withholding access to money, and/or forbidding attendance at school or employment.

Psychological violence

Psychological violence involves causing fear by intimidation; threatening physical harm to self, partner or children; destruction of pets and property; “mind games”; or forcing isolation from friends, family, school and/or work.

Emotional violence

Emotional violence includes undermining a person’s sense of self-worth through constant criticism; belittling one’s abilities; name-calling or other verbal abuse; damaging a partner’s relationship with the children; or not letting a partner see friends and family.

Physical violence

Physical violence involves hurting or trying to hurt a partner by hitting, kicking, burning, grabbing, pinching, shoving, slapping, hair-pulling, biting, denying medical care or forcing alcohol and/or drug use, or using other physical force. It may include property damage.

Sexual violence

Sexual violence involves forcing a partner to take part in a sex act when the partner does not consent. See more about sexual violence below.


Femicide

Femicide refers to the intentional murder of women because they are women, but may be defined more broadly to include any killings of women or girls. Femicide differs from male homicide in specific ways. For example, most cases of femicide are committed by partners or ex-partners, and involve ongoing abuse in the home, threats or intimidation, sexual violence or situations where women have less power or fewer resources than their partner.

Honor killing

Honor killing is the murder of a family member, usually a woman or girl, for the purported reason that the person has brought dishonor or shame upon the family. These killings often have to do with sexual purity, and supposed transgressions on the part of female family members.


Sexual violence

Sexual violence is any sexual act committed against the will of another person, either when this person does not give consent or when consent cannot be given because the person is a child, has a mental disability, or is severely intoxicated or unconscious as a result of alcohol or drugs.

Sexual violence can include the following.

Sexual harassment

Sexual harassment encompasses non-consensual physical contact, like grabbing, pinching, slapping, or rubbing against another person in a sexual way. It also includes non-physical forms, such as catcalls, sexual comments about a person’s body or appearance, demands for sexual favors, sexually suggestive staring, stalking, and exposing one’s sex organs.

Rape

Rape is any non-consensual vaginal, anal or oral penetration of another person with any bodily part or object. This can be by any person known or unknown to the survivor, within marriage and relationships, and during armed conflict.

Corrective rape

Corrective rape is a form of rape of perpetrated against someone on the basis of their sexual orientation or gender identity. It is intended to force the victim to conform to heterosexuality or normative gender identity.

Rape culture

Rape culture is the social environment that allows sexual violence to be normalized and justified. It is rooted in patriarchy and fueled by persistent gender inequalities and biases about gender and sexuality.

Human trafficking

Human trafficking is the acquisition and exploitation of people, through means such as force, fraud, coercion, or deception. This heinous crime ensnares millions of women and girls worldwide, many of whom are sexually exploited.

Female genital mutilation

Female genital mutilation (FGM) includes procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons. It is classified into four major types, and both the practice and the motivations behind it vary from place to place. FGM is a social norm, often considered a necessary step in preparing girls for adulthood and marriage and typically driven by beliefs about gender and its relation to appropriate sexual expression. It was first classified as violence in 1997 via a joint statement issued by WHO, UNICEF and UNFPA.

Child marriage

Child marriage refers to any marriage where one or both of the spouses are below the age of 18. It is a violation of the Universal Declaration of Human Rights, which states that “marriage shall be entered into only with the free and full consent of the intending spouses.” Girls are more likely to be child brides, and consequently drop out of school and experience other forms of violence.

Online or digital violence

Online or digital violence against women refers to any act of violence that is committed, assisted or aggravated by the use of information and communication technology (mobile phones, the Internet, social media, computer games, text messaging, email, etc) against a woman because she is a woman.

Online violence can include the following.

Cyberbullying

Cyberbullying involves the sending of intimidating or threatening messages.

Non-consensual sexting

Non-consensual sexting involves the sending of explicit messages or photos without the recipient’s consent.

Doxing

Doxing involves the public release of private or identifying information about the victim.

16 facts about Gender Based Violence (GBV)

The 16 Days of Activism against GBV campaign kicked off on 25th November 2021, and runs until 10th December 2010. This year’s global theme is ‘Orange the world: End violence against women now!’ The United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) through the United Nations Secretary-General’s UNiTE by 2030 to End Violence against Women campaign (UNiTE campaign) designed 25th November as the Orange day and urges governments, civil society, women’s organizations, young people, the private sector, the media, and the entire UN system to join forces in addressing the global pandemic of violence against women and girls. The colour orange symbolizes a brighter future, free of violence. It also serves as a means of demonstrating solidarity in eliminating all forms of violence and it is therefore used as the colour of the International Day for the Elimination of Violence against Women. The campaign builds on existing international legal and policy frameworks and works to synergize the efforts of all UN offices and agencies working to end violence against women.

Here are 16 facts on GBV in Kenya:

1.      Know the facts

Over 40% of women in Kenya are likely to face sexual and gender based violence (SGBV), including lifetime physical and/or sexual intimate partner violence in their lifetime with one in five girls facing child marriage or female genital mutilation (FGM).

Kenya has a long way to go. We’ve seen these violations worsened by humanitarian crises such as the COVID-19 pandemic and crises related to electoral periods, and this will continue without sustained action.

2.      GBV and the socio-economic class

A study carried out in Kenya on domestic violence meted on women indicates that 68% of husbands/partners were working (Johnson 2002). Most women have taken it as their fate to remain dependent on men due to poverty. Economically disadvantaged women, including refugees and women with physical disabilities are disproportionately affected and are more likely to experience sexual harassment, trafficking and sexual slavery.

The rate of reporting of cases is quite low because economically disadvantaged women may not be able to afford legal fees. Poor women in rural areas are economically dependent on their husbands, which reduce their ability afford the high costs of legal fees, transport costs and lawyer’s fee (Johnson, 2002).

3.      Take a stand on social media

Raise the topic, discuss difficult issues, connect with like-minded people, and share posts from activists and organisations. Unite in solidarity with women who have experienced GBV – and remember to colour your social media platforms orange.

4.      Sexist jokes are not funny

Sexism is any act, word or image based on the idea that a person is inferior because of their gender. Sexism is harmful because it produces feelings of worthlessness and enforces the stereotype that men are better than women. Don’t laugh at the jokes… don’t even smile!

The Government of Kenya recognizes that sustainable development cannot be achieved in an environment where GBV is a daily occurrence. The government has developed the National Policy for Prevention and Response to Gender Based Violence. This Policy is informed by various Government policy documents and statutory frameworks, The Constitution of Kenya; the Penal Code; the Sexual Offences Act, 2006, the Sexual Offences Regulations 2008; and the Sexual Offences Dangerous Offenders DNA Data Bank Regulations, the Counter Trafficking in Persons Act (2011), the Prohibition of Female Genital Mutilation (FGM) Act 2011, the Employment Act, 2007, the National Reproductive Health Policy, 2007; Kenya Vision 2030 among others. The framework is also aligned with the national goals of fostering social economic growth, general improvement and the well-being of Kenyans.[1]

The overall goal of the National Policy is to accelerate efforts towards the elimination of all forms of GBV in Kenya. The Policy Goal is to be realized as laid out in the key objectives which seek to ensure; a coordinated approach in addressing GBV and effective programming; enhanced enforcement of laws and policies towards GBV prevention and response; increase in access to quality and comprehensive support services across sectors; and improved sustainability of GBV prevention and response interventions.[2]

6.      Listen to a survivor

Jane O (Not her real name), a 27 year old woman who suffered physical and verbal abuse at the hands of her ex-partner, says: “I encourage anyone who is silently protecting an abuser to make up your mind and open your eyes. Love is not supposed to be painful. Love is kind. Love is protective. Love should always be beautiful, not harmful and not filled with fear. There is a place for us in society where we can find help, be protected, find sisterhood support, speak out, and break the silence. Day by day, you can only get better.” Jane has benefited from counselling and skills development opportunities through Kituo Cha Sheria’s Mental Health and Psychosocial Support Programme (MHPSS). If you would like to chat with a counsellor, Text us on +254 0700777333 or email mhaki@kituochasheria.or.ke

7.      Power through unity

Kenya’s legal framework prohibits discrimination and violence. “We should no longer accept inequality and violence as the norm. We should form survivors’ solidarity circles to confront and expel abusers from our homes, workplaces and communities. Society must encourage women and men in abusive relationships to talk about their experiences and give them a safe space to do so while respecting that what they share is confidential.[3]

8.      Contribute what you can

Ask what practical support you could provide. This could mean providing company to report the crime at a police station, assistance in finding a professional to speak to, or being present for medical appointments. Offer practical help without adding the pressure for them to take action. 

It is important to note that survivors may not be ready to take any sort of action after an assault. However, informing them that should they need it, you are willing to stay by their side and assist them along the way is an indication of support. Support GBV or women empowerment campaigns. If you cannot afford a cash donation, find other ways to support survivors including supporting fundraising events.

9.      Avoid imposing gender stereotypes

Gender stereotypes are fixed and oversimplified beliefs about what is normal and appropriate for people in a certain culture based on their biological sex. Some examples of stereotypes include: women should take care of the home; men should go to work; women should be secretaries or work at a daycare; men shouldn’t be nurses or kindergarten teachers. Gender stereotypes make bad behavior more acceptable. Consider the old saying, “boys will be boys.” This attitude makes it more acceptable for men to be aggressive, violent, or unfaithful to their wives. The stereotype that women need men to survive may sometimes encourage women to allow men to do all the work for them rather than getting out in the world and doing their share to support the family.[4]

Stop and think about those Christmas gift catalogues that have a pink page full of prams, toy kitchens and frilly aprons for girls; and a blue page featuring balls, cars and tools for boys. Let your son help cook and your daughter mow the lawn and make sure your partner is on board. It’s important to socialise our children to know that boys are not better than girls; they are equal. We need to raise children in non-violent households where abuse is not tolerated. In this way, they are less likely to normalise abuse and stay in abusive relationships when they are older.[5]

10.  The law offers retributive justice for survivors of rape and defilement

In Kenya, the Sexual Offences Act 2006 states as follows:                  

 “any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.”

11.  Survivors and perpetrators

Women and girls and other marginalized groups of people such as refugees and lesbian, gay, bisexual, and transgender (LGBTQIA+) are disproportionately affected by GBV. Perpetrators are mainly heterosexual men.

12.  If you think someone I know is being abused

You should, first and foremost, believe the person. Listen with compassion and do not judge. Offer practical support, such as accompanying the person to the police station. Share any information you may have regarding GBV support centres and contact details.

13.  Do not support rape culture

Rape culture is a sociological theory of a setting in which rape is pervasive and normalized due to societal attitudes about gender and sexuality. Behaviors commonly associated with rape culture include victim blaming, slut-shaming, sexual objectification, trivializing rape, denial of widespread rape, refusing to acknowledge the harm caused by sexual violence, or some combination of these. It has been used to describe and explain behavior within social groups, including prison rape and in conflict areas where war rape is used as psychological warfare. Entire societies have been alleged to be rape cultures. It also includes promoting rape fantasies and rape pornography.

14.  Learn the signs of abuse and how you can help

There are many forms of abuse and all of them can have serious physical and emotional effects. If you’re concerned about a friend who may be experiencing violence or feels unsafe around someone, review these signs and learn about the ways to help them find safety and support.

15.   Dignity, equality and justice

GBV is rooted in gender inequality and women’s structural subordination to men, codified in major religious and other cultural practices.  We should challenge inequality and violence as it contradicts the Constitution of Kenya and other national, regional and international laws. It is important to recognize that the government has a duty to ensure that the rights outlined in the Constitution are protected and fulfilled. This is crucial to ensure dignity, equality and justice are applied in claiming rights.

16.  Start a conversation

SGBV is a human rights violation that’s been perpetuated for decades.

It’s pervasive, but it’s not inevitable, unless we stay silent. Show your solidarity with survivors and where you stand in the fight for survivors’ rights by ‘oranging’ your social media profile for the 16 Days of Activism

Use #orangetheworld, #16Days and #GenerationEquality to start your own conversation about gender-based violence, tag Kituo Cha Sheria on: Twitter – @KituoSheria, Facebook – @KituoSheria, Instagram: Kituo_Cha_Sheria

Stop GBV today

By Samfelix Randa – Communications Officer – Kituo Cha Sheria


[1]http://psyg.go.ke/docs/National%20Policy%20on%20prevention%20and%20Response%20to%20Gender%20Based%20Violence.pdf

[2] Ibid.

[3] https://albertonrecord.co.za/312195/16-days-of-activism-against-gender-based-violence-what-you-need-to-know/

[4] https://www.betterhelp.com/advice/stereotypes/22-ways-to-overcome-gender-stereotypes/

[5] Ibid n3.

What the Metaverse portends for Kenya’s Criminal Justice System

We have all heard about it and are trying to get our minds around it. Metaverse or Web 3.0

Experts say it is a virtual reality space where you and I will be able to interact just like we do in the real world. In essence, the metaverse is an intersectional of the real world and the virtual world and you will be able to interact in it through your avatars.

And far from it, Facebook is just creating a metaverse or platform and not the alpha and omega of it. Just imagine the feeling you get while playing a video game or reading a fiction story. That is the kind of immersion brought by metaverse, only that in this case you will feel present and be able to direct your actions and express your feelings without being controlled by an author or a programmer.

Surprisingly, we are already experiencing semi-immersive technologies through online meeting platforms such as Zoom, Microsoft Teams and Google Meet, partly driven by the Covid-19 pandemic.

Perhaps you are wondering how your feelings and actions will be captured. BigTech companies are already in a rush to develop the best forms of capturing this. You and I must have already seen the Virtual Reality (VR) head-gears, smart gloves or even the much talked about brain-chips. All these are geared towards ‘transferring’ your actions and emotions to a digital platform.

But what does Metaverse portend to Kenya’s Criminal Justice System?

Just like in our real world, the interactions in the Metaverse will have implications on criminal justice systems around the world, including ours. According to a paper Virtual Reality and the Criminal Justice System: New Possibilities for Research, Training, and Rehabilitation1 published in the 4th Volume of the 2011 Edition of the Journal of Virtual World Research; the increasing virtual reality systems can significantly benefit the criminal justice systems.

Through the paper, the researchers Bobbie Ticknor and Sherry Tillinghast, both from the University of Cincinnati argue that the criminal justice system can massively benefit in different ways and lead to huge cost reductions.

With dwindling resources and increasing correctional populations, virtual reality offers cost-efficient and effective means of addressing the diverse needs of the criminal justice system.1

Having gotten used to online court sessions already, Kenyans can only expect that the experiences will get better with metaverse. In this world, counsels, judges and all stakeholders will feel the experience of being in a real court room with the ability to move around the court room, engage others in a chat or even read the mood of others.

According to an article published by the global law firm, Norton Rose Fulbright2, the metaverse presents a situation where people will be able to log onto a meeting or court session simultaneously without a limitation on the number of participants.

This will greatly reduce on the costs of access to justice especially once the right infrastructure and socio-economic empowerment programmes are put in place.  

Metaverse hugely relies on a user data, and that explains the ‘data is the new oil’ phrase. As a country, we are still grappling with how to monitor and regulate social media in Kenya especially on matters privacy and intellectual property. Thus the metaverse might just get us into an even more complex situation.

For instance, out of your browsing history and social media activities, advertisers already can precisely predict what you would be interested in buying or which animal you are more likely to get as a pet. When you get to a Gucci store in the metaverse, you will find the exact colour of a shirt or dress that you like, making your work easy. Before you hop out of the store, you will find ads on a Beyonce concert coming up in the next few months.

Wait a minute! But how did they know your preference? Most likely your data is already being sold to multinationals who will build your profile in the virtual space. And this is where the legal profession comes in. With metaverse, there will be need to review the data protection laws and policies regulating on the inter-operability of the platforms. It is an area that legal experts and practitioners need to explore before the big dive.

Norton Fulbright Rose argues that the data mining will be much extensive with the metaverse:

Tomorrow, in the Metaverse, organisations will be able to collect information about individuals’ physiological responses, their movements and potentially even brainwave patterns, thereby gauging a much deeper understanding of their customers’ thought processes and behaviours2.

Still on trade, how will this be in the metaverse? Well, that is already taking place with users buying plots of land, building offices and paying for concerts in a virtual world. Like any other trade or business deal in the real world, you will need lawyers to ensure that your purchase of a piece of land in Kamulu is legally covered. However, in this case you will get a value that is recognized by others. Yes something like cryptocurrency but currently the most popular ones are non-fungible tokens (NFTs), fiat currency and e-money.

For instance, a digital art work (an NFT) by an American artistBeeple3 was sold for $69 million early 2021. It would thus be prudent for legal practitioners to evaluate this new frontier and embed it in the legal course work through Kenya School of Law (KSL) and the Judicial Training Institute (JTI) because sooner or later that world will be with us.

Besides trade, Intellectual Property Rights are another legal battleground with metaverse. If legal experts from Kenya collaborate with their peers in Britain to generate intellectual property rights, who will own the rights? Experts argue that joint ownerships and co-ownership of property rights are already complicated. Now you can imagine how that will pan out in a complex virtual world and where many stakeholders claim the rights.

Additionally, as we will be living in a virtual world, our behavior and vices will manifest. How will the National Police Service or the ODPP deal with a crime that is committed in the metaverse? As BigTech companies grapple with building the supporting environments, the criminal justice system stakeholders need to rethink crime prevention, litigation and detention in this new era.

Is the Kenyan Criminal Justice System ready for the metaverse?

Your guess is as good as mine.

In order to fully benefit from the new wave of metaverse, all stakeholders in the criminal justice system need to put in a few measures;

There is need for stakeholders to partner and collaborate to create the necessary infrastructure to support the operations of the relevant institutions in the metaverse. These may include setting up of fast and reliable internet connections and zero-taxation or reduced taxation on ICT gear supporting immersive technology.

With metaverse, there will also be need for capacity building sessions for criminal justice system actors on the emerging technologies. Cross collaborations will be vital in this aspect.

Finally, there is need to allocate adequate funds to support research and innovation in the criminal justice system in Kenya.

By Steve Biko Abuya – program officer, Kituo Cha Sheria

PREVENTION OF VIOLENCE AGAINST WOMEN AND GIRLS WITH DISABILITIES: TOWARDS INCLUSIVITY AND EQUITY

The International Day of People with Disabilities is commemorated on every 3rd of December since 1992. The observance of the day is aimed at promoting understanding of disability issues and mobilize support for the dignity, rights and well-being of persons with disabilities. Additionally, it purposes to recognize and increase awareness on the gains that can be derived from integration of persons with disabilities in every aspect of political, social, economic and cultural life. The 2021 theme is ‘Fighting for rights in the post-COVID 19 era.’ Notably, the effects of the COVID-19 pandemic have exacerbated existing inequalities for women and girls, and has led to an increase in violence against women and girls.  

The 16 days of activism against gender-based violence are observed from 25th November to 10th December. This is a worldwide campaign to oppose violence against women and girls and to raise awareness on the negative impact of violence and abuse of women and girls. As 3rd December falls within the 16 days of activism against gender-based violence, this is another advocacy moment to discuss how women and girls with disabilities often face disproportionately high rates of gender-based violence, sexual abuse and exploitation;[1]and how to address the vice.

Women and girls with disabilities are subjected to multiple layers of discrimination because of their gender and disability status. This can be exacerbated where they belong to marginalized ethnic or other groups. Furthermore, the UN estimates that seventy five percent of women with disabilities are unemployed, and those who are employed often earn less than their male counterparts or other women without disabilities.[2]The literacy rate for PWD is three percent, with just one percent representing women and girls with disabilities.

The most common perpetrators of violence against women with disabilities are their spouses or male partners. The experiences of violence against women with disabilities are compounded by impairments such as physical, sensory or intellectual as well as marginalization and inaccessible environments. Because of their physical, economic and social dependence, they are more exposed to perpetrator they are dependent on, including intimate partners, family members and caregivers. Additionally, their reliance on others increases their risk of emotional and physical abuse that are disability-based forms of violence. These include prevention from using a wheelchair or other assistive devise, being under or over-medicated, neglect among others. Social and cultural myths around disability also increase their risk to abuse and violence. Some may be subjected to harmful practices such as cleansing rituals which involve rape as well as mutilation.

The type of disability increases the risk of violence for women with disabilities. The association between intellectual impairment and risk of violence to be significantly higher than with women with other disabilities. Impairments that reduce the emotional and physical defences as well as communication barriers hamper reporting of violence and increase vulnerability.

The Convention on the Rights of Persons with Disabilities recognizes that women and girls are often at greater risk of violence, injury or abuse and negligent treatment. The Convention emphasizes the need to incorporate gender perspective in all effort to promote the full enjoyment of rights and fundamental freedoms by persons with disabilities.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) urges states to make commitments to protect women from gender-based discrimination including through gender based violence. Regionally, the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) also prohibits violence against women by urging State Parties to protect and fulfill women’s rights to life, dignity, integrity, and security of the person, among other rights.

Similarly, Sustainable Development Goal 5 aims at achieving gender equality and empowering all women and girls. One of the targets includes ending all form of discrimination against women and girls everywhere.

In Kenya, the Constitution has a comprehensive Bill of Rights. In its Article 10, it sets out the national values and principles of governance including human dignity, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized. Furthermore, Article 29 provides for the security of the person and protection against all forms of violence. The Sexual Offences Act, Children’s Act and Protection against Domestic Violence Act and Prohibition of Female Genital Mutilation Act also prohibit violence against women and girls. Polices and guidelines that are geared towards eliminating violence against women and girls include The National Guidelines on the Management of Sexual Violence and the National Framework toward Response and Prevention of Gender Based Violence in Kenya.

Promoting disability inclusion is key for advancement of equity and rights of women and girls with disabilities. Disability inclusion entails including people with disabilities in everyday activities and encouraging them to have roles similar to their peers who do not have a disability. This includes having adequate policies and practices in every country, community or organization. Inclusion leads to increased participation in many aspects, including socially and politically.

Interventions must be informed by evidence on what increases the risk of violence against women with disabilities. There is also a need to create awareness on disability-based forms of violence so as to address it more effectively. This must be compounded with empowerment of women and girl with disabilities on health care with a focus on sex education and reproductive health. Furthermore, promoting a culture of inclusivity of women and girls with disabilities into community based interventions addressing gender based violence, sexual and reproductive health and rights and harmful practices is also key to eliminating stigmatization and discrimination.

Lastly, while there is no clear indication of whether an African treaty that focuses on the prevention of violence against women would improve the protection of women from gender-based violence in Africa, it can create an enabling environment for positive change. The ratification of such a treaty by African States may symbolize the will to eliminate violence against women in the Continent.

By Janet Kavulavu (Programs Officer Kituo Cha Sheria)


[1] https://www.usaid.gov/what-we-do/gender-equality-and-womens-empowerment/women-disabilities

[2] https://www.cbm.org/news/news/news-2016/sdg-5-gender-equality-and-disability-inclusive-development-in-the-sdgs/?cookieLevel=not-set

IS THERE RECOURSE FOR CLIENTS WHERE ADVOCATES ARE IN BREACH OF THEIR PROFESSIONAL CODE OF CONDUCT?

The role of an advocate is invaluable in society. They are instrumental in the resolution of disputes and advancing arguments of the public. It is also important to note that they too are human beings

In as much as only 10% of Kenyans approach the formal systems of dispute resolution, Kenyans are very litigious.

It is not uncommon for us as Kituo Cha Sheria to receive complaints from our beneficiaries who are the poor and marginalized in society touching on their advocates. In some cases, the disagreements are those that can be resolved without escalating the dispute and the client and advocate relationship is maintained. However, in most cases, most of our beneficiaries come to us as a last resort after they have had their matters dismissed for non-attendance or execution carried out against them.

This article is aimed at assisting our beneficiaries and every mwananchi on what their rights and obligations are when it comes to the relationship they enter into with their advocate, where they can seek redress for any complaints and the right forum to have disputes addressed.

According to the Advocates Complaints Commission and the Law Society of Kenya, we have 18,792 advocates on the roll of advocates. Most of these advocates are in compliance with the Advocates Act and all Professional Ethics regulations. However, there are some who fail to discharge their mandate causing distress and even financial loss suffered by their clients.

WHERE TO GO?

We have an Advocates Complaints Commission which is under the State Law Office.

They have been in operation since 1990 and currently have their offices situated in Nairobi CBD at Cooperative House along Haile Selassie Avenue. The ACC also does have offices spread across the Country where they carry out a lot of alternative dispute resolution

The Commission is comprised of 2 commissioners, 24 state Counsels, 21 registry and support staff, A commission Secretary and 2 CID Officers.

The Commission does not sanction Advocates. This role is carried out by the Disciplinary Committee which either discharges a complaint or issues sanctions against advocates. The Commission receives complaints, investigates (they have CID officers on board), reconciles disputes and prosecutes.

WHAT TYPES OF COMPLAINTS CAN BE REPORTED AT THE COMMISSION?

  1. Advocates withholding client funds
  2. Failure to account to a client
  3. Failure to keep a client informed
  4. Issuing cheques which are subsequently dishonoured-this is also a criminal offence
  5. Failure by an advocate to honour a professional undertaking
  6. Inactivity in pursuing a client’s court matter
  7. Failure to reply to correspondence
  8. Failure to comply with instructions of a client
  9. Failure to release a file or documents especially where instructions have been withdrawn from the advocate
  10. Overcharging
  11. Undercutting- charging way below the Advocates Remuneration Order
  12. Failure to attend court
  13. Not disclosing conflict of interest
  14. Demanding fees from a person who is not a client
  15. An advocate practicing without a certificate

WHAT COMPLAINTS ARE NOT HANDLED BY THE ACC?

  1. Cases relating purely to negligence of advocates in the discharge of their duties
  2. Complaints against judicial officers and state Counsels

WHAT THEN IS THE PROCESS OF LODGING A COMPLAINT?

  1. Obtain a help form at the Advocates Complaints Commission offices or form the Office of the Attorney General or download it from www.acc.go.ke for free
  2. Complete the form and attach any documents supporting your complaint
  3. Submit the form online (scanned) to acc@go.ke or deliver the same to the ACC offices

The ACC will thereafter review the complaint and determine whether the same is valid. The Commission will thereafter determine whether to accept or reject the complaint, In both instances the complainant will be informed. Depending on the complaint, the commission will thereafter indicate whether it can go through internal dispute resolution or if it goes straight to the Disciplinary Committee. If Alternative Dispute resolution doesn’t work, then the matter is referred to the Disciplinary Committee and the complainant is thereafter informed of the decision.

What are some of the penalties an advocate may suffer?

If a case against an advocate is not dismissed, the Disciplinary Committee may order the advocate found culpable to pay a fine, an advocate may be suspended and an advocate may be struck off the role of advocates. Suspension is a temporary measure of redress while being struck off is a permanent measure as the advocate ceases to be an advocate and can no longer practice.

What are some of the challenges faced by the Commission?

  • Some of the lodged complaints are not clear
  • Budgetary constraints
  • Failure by complainants to provide evidence when they lodge their claims
  • Slow process of resolution of complaints
  • Slow process of implementation/enforcement of decisions of the Commission
  • Slow cooperation with other stakeholders which slows down the process of investigation and review of claims.
  • Delay in getting dates for pleas before the Committee
  • Delays in hearing of matters at the Commission due to the many matters being listed for hearing. Currently the Committee sits on Mondays.

HOW CAN A CLIENT PROTECT THEIR INTERESTS?

  • Ensure that they issue instructions to their advocates in writings and request for a copy of the same and make sure the full scope of the advocate is captured in the agreement such as his duty to safeguard your interests by attending court, writing to you after court, preparing court documents among other obligations depending on the issue brought to the advocate.
  • Agree on fees and mode of payment in writing
  • Agree on meeting times and venues in writing
  • Ask and retain copies of all documents and communication
  • Carry out due diligence on the status of the advocate to confirm whether the advocate is licenced to practice. This can be done by checking the Law Society of Kenya advocate search tool online or making a call to the Law Society of Kenya to confirm whether the advocate is on the roll and has a practicing certificate.
  • Make requests from your advocate for payment receipts

HOW CAN A CLIENT PROTECT THEIR INTERESTS?

  • Ensure that they issue instructions to their advocates in writings and request for a copy of the same and make sure the full scope of the advocate is captured in the agreement such as his duty to safeguard your interests by attending court, writing to you after court, preparing court documents among other obligations depending on the issue brought to the advocate.
  • Agree on fees and mode of payment in writing
  • Agree on meeting times and venues in writing
  • Ask and retain copies of all documents and communication
  • Carry out due diligence on the status of the advocate to confirm whether the advocate is licenced to practice. This can be done by checking the Law Society of Kenya advocate search tool online or making a call to the Law Society of Kenya to confirm whether the advocate is on the roll and has a practicing certificate.
  • Make requests from your advocate for payment receipts

WHAT ADVOCATES CAN DO TO BEST SAFEGUARD THEIR PRACTICE AND PROFESSION

Ensure they manage the expectations of their clients

Ensure they carry out all the duties owed to their client and communicate and preferably in writing to their clients

Only take on the cases they can manage. This will then prevent scenarios where clients do not get the attention they require.

Take care of their mental health. This is through seeking professional help, taking time to debrief, take care of their health and rest. This would enable them best carry out their mandate to the many clients they represent which if not done, may create pressure on the advocate and cripple his or her ability to discharge their mandate.

Some of the ways in which stakeholders can assist the Advocates Complaints Commission

1. Enabling timely resolution of complaints by providing the Commission with Claims statement evidence and information that facilitates timely investigations such as reports from insurance companies and banks, certified copies of judgments and proceedings.

2. Promote interdependence of stakeholders through referrals 

3. Provision of free legal aid services and legal aid. Legal Aid Services will reduce instances of complaints as the public will be more aware of their rights. Free legal aid services will ensure less issues of the mostly lodged complaints which touch on withholding of client funds and court documents.

4. Partnership with institutions offering legal education. Currently the Commission has an MoU with the Kenya School of Law as well as the Kenyatta University Law School. This is with the intention to deter professional misconduct in young lawyers to prevent them from being corrupted by rogue advocates.

5. Conduct public sensitization and legal aid clinics in the Counties

6. Vetting of advocates for public offices. Government institutions and advocates to liaise with advocates to establish the suitability through vetting of Legal Professionals for appointment to public offices.

RECOMMENDATIONS

  • Need for psychosocial support for lawyers at the point where they are starting off as lawyers for them to manage their expectations in practice and sensitization to ensure they are not caught up by social pressure created by society.
  • Need for advocates to embrace the Commission as opposed to viewing it as the enemy
  • Need for sensitization of the public on the commission
  • Need to sensitize the public on the role and importance of alternative justice systems in ensuring that there is fast dispensation of issues.
  • Advocates to get further training on the procedure of the Disciplinary Committee and the Advocates Complaints Commission.
  • ACC to pick up training of clients to self-represent themselves
  • Need for senior advocates to cling to the universities and share on humble beginnings.
  • Need to track advocates who have been struck off to deter them from setting up shop in other areas.

By: Tracy Wanjiku Wachira – Legal Officer, Kituo Cha Sheria

Ignorance to Law is No Excuse: The Place of Legal Aid Services within the Kenyan Legal System

         In the United States it is simply referred to as Miranda rights- the Miranda warning– a type of notification customarily given by police to criminal suspects. The dictum that arrested persons must be informed of their constitutional rights. These rights are enumerated to include; the right to remain silent, right against self-incrimination and the right to legal representation. The justices in the landmark U.S. Supreme Court case of Miranda v Arizona,384 U.S436, [in emphasis] stated that information obtained from Miranda could not be used as evidence because he was not informed of his constitutional rights at the point of arrest. These standards and norms have been adopted into both international and municipal law in several countries. In Kenya, the rights of an arrested person are a key component of the Bill of Rights. Article 49 of the Constitution of Kenya, 2010 states that persons arrested are to be informed promptly in a language they understand; the reason for the arrest, the right to remain silent and the consequences of not remaining silent. The constitution further provides that an arrested person has the right to communicate with an advocate and get legal representation, the right not to be forced or to make confessions, to be held in custody separate from those convicted and be brought to court as soon as reasonably possible.

         While a lot of these provisions were drafted as a way to correct the mistakes of history, three glaring points come to mind. Firstly, do the Kenya Police always abide by the requirements of Article 49 of the Constitution? Do they inform an arrested person of their rights? Perhaps they do; however, the ‘kuja hapa kijana’ experience is what majority Kenyans associate with the police. Secondly, how many Kenyans know of their Article 49 rights? How many Kenyans are even able to challenge the police at the point of arrest if need be?  While this assertion may not be backed by statistics- experience portends that many Kenyan citizens may not be knowledgeable enough hence are often intimidated by the police. Thirdly; the right to legal representation. How many Kenyans can afford competent legal representation? And what happens to those who cannot afford legal counsel? These questions highlight the importance of civic education and legal aid services in Kenya which is the subject of this paper.

         Legal aid is defined as the provision of legal services, advice and representation at the expense of the State on the conditions and in accordance with the provisions established under the law and relevant regulation. Legal aid includes legal education, access to legal information and other services provided through alternative dispute resolution and restorative justice programs. A lot of time legal aid is thought of in terms of representing accused persons in court especially those who may not afford representation however, as the definition states, it has a number of disciplines. Kenyans need the basic knowledge on the law of contract and the effects of contracts, succession law and wills, family law and the rights of children and land law- all of this is achieved through legal aid services.

            For a long time, legal aid services have been undertaken through an amorphous structure with NGOs and civil society organizations mainly filling the space. A number of scholars have reflected on the ‘injustice’ in the lower courts since a lot of litigants go to court without lawyers and representation hence the need for legal aid services. The development of a legal regime however began with the promulgation of the Constitution of Kenya, 2010. One of the principles of fair hearing under Article 50 is the right to be presented by legal counsel or to be provided representation by the State. This necessitated the enactment and operationalization of the Legal Aid Act No. 6 of 2016 which gives effect to article 19 (2), 48, 50(2), (g) of the Constitution of Kenya, 2010. Section 3 of the Act outlines the objectives of the law as to establish a legal and institutional framework to provide affordable, accessible, sustainable, and accountable legal service, provide a legal aid scheme, promote legal awareness, supporting community legal services and promoting alternative dispute resolution mechanisms. The Act further provides for the National Legal Aid Services (NLAS) which is a body corporate with perpetual succession with the mandate to create a legal aid scheme and do everything pertaining to legal aid in Kenya under Section 7 of the Act which is administered by a board of service.

          The other saline feature of the Act is the creation of the legal aid fund which is to be managed by the NLAS. The Act also provides for the choice of accreditation and criteria of accreditation for the organizations that may want to provide legal aid under this Act. The other provisions of the Act include; the duties of the courts, registration of accredited legal aid providers, enforcement of grant on legal aid and offences under the Act. The Constitution as well as the Act is a big and positive move towards access to justice, however, there are a number of challenges that have come to light with regards to legal aid in Kenya

           The first challenge is public awareness. There are many Kenyans who are not aware of the option of legal aid. Many poor citizens who may not be able to afford legal representation or advice often lose out as the national legal aid scheme is not known as one of the department under the Office of the Attorney General. The challenge of public awareness often goes hand in hand with literacy levels and accessibility of the areas. The second challenge is capacity. This has two limbs; one is capacity in terms of personnel; meaning that advocates and paralegals to do the legal aid work and capacity in terms of facilities and the geographical area covered. This perhaps is a major challenge as it involves getting more probono lawyers, creating more offices and building networks. As much as the Department of Legal Aid is underway, there is still a lot to be done. The third challenge is financing. It is certainly clear that almost everything costs money. Funding always goes a long way in improving the infrastructure and building capacity. Lastly, the fourth challenge is the nature of legal aid services against the requirement that they have to come from government. For example; public interest litigations against the Government- how are these to be carried out by a department of the same government? 

           This paper therefore offers a number of solutions to the aforesaid challenges.  There is need to do public awareness about legal aid. This may be done through electronic and print media. Away from the usual print and electronic media, there may be need to use community radio stations with grassroots reach as well as vernacular radio stations so as to get to as many people as possible. Community mobilizers and leaders are also an important instrument of public awareness. The challenge of personnel can be solved through collaboration with the Law Society of Kenya. I propose that law firms can be involved and encouraged to take on more pro bono cases by awarding the firms professional points based on the number of cases they take per year. Individual advocates can also be encouraged to take more pro bono cases and then awarded points. Another way is creation of legal clinics in the University and accrediting them so that law students can help with the legal aid services as they are guided through the learning process. Accredited Non-Governmental Organizations also have a role to play too. They can be encouraged to set up and help with legal aid services through tax incentives. Monetary issues can be solved through budgetary allocations as well as partnership with both the private sector and development partners. Lastly, the National Legal Aid Department ought to be a Semi-Autonomous Government Agency ( SAGA)  so as to carry out its functions effectively

By:

Ouma Kizito Ajuong’

Advocate of the High Court of Kenya

Used and Abused: A Case for a Paradigm Shift in GBV reporting

By: Nelius Njuguna Volunteer Advocate, Kituo cha Sheria

Introduction to GBV

Gender based violence (GBV) has been defined by the United Nations as violence that is directed against a person on the basis of gender or sex. This includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.

Statistics on GBV in Kenya

Gender based violence in its multiple forms has undeniably been on the rise during the Covid 19 pandemic. Statistics by the Ministry of Public Service and Gender indicate that gender based violence cases in 2020 increased by 36 per cent with 5,009 cases being reported. The number of cases reported are quite low considering that the National Crime and Research Centre found in one of their studies that 38.0 per cent of women and 20.9 per cent of men have experienced gender based violence in their lifetime. Of these survivors, 37.7 per cent of women and 48.6 per cent of men had experienced gender based violence within the last 12 months.

The discrepancy between the number of survivors of gender based violence and the cases reported is a clear indicator that most cases of GBV go unreported. The question that then craves attention is why many survivors of gender based violence do not report their cases.

Reporting of GBV at Police Stations

Any person who has survived gender based violence can tell you of the negative physical and mental effects they experienced. Not only do they experience physical effects such as bruises, cuts, pelvic pain and other injuries but they may also experience fear, anger, confusion and shame. The whole experience can be traumatizing for most survivors. Consequently, these survivors ought to be treated delicately with compassion and dignity. Nevertheless, the experience of survivors when reporting their cases at police stations often adds to their trauma which discourages most survivors from reporting. 

A number of studies have found that most survivors of GBV are often discouraged from reporting due to lack of adequate reporting mechanisms at police stations. Police stations are meant to have gender desks to deal with survivors of GBV. However, most police stations lack model gender desks that offer reasonable accommodation to GBV survivors. The effect of this is that most stations resort to handling GBV with other cases thus openly risking violation of the privacy of the survivors.

The few stations with gender desks have them poorly structured and with no adequate resources. For instance, most gender desk spaces are set up publicly, depriving survivors of the much needed privacy. Many gender desks are also understaffed and the officers manning them are not specifically trained to deal with GBV. The police stations often lack safe rooms to accommodate survivors who are still in trauma and cannot go back home, many of whom are sometimes kept in police cell. Additionally, the gender desks are poorly financed with some lacking the capacity to provide basic in-situ service such as P3 forms and transport to hospitals.

The survivors who report GBV have equally faced anguished reception at most gender desks due to unconducive space for reporting GBV. Most often, cases of survivors being laughed at, mocked and being blamed by the officers have been reported. Some survivors are at times forced to reconcile with perpetrators, an end they most likely did not desire. Other survivors have in addition endured unwanted solicitation for bribe from officers to bring the suspects to book. The experience in police stations for most survivors has mainly been associated with humiliation, lack of dignity and common human courtesy.

Conclusion

The underlying challenges of police gender desks can for the most part be attributed to lack of adequate funds and lack of proper training of police officers on handling GBV. There is urgent need for paradigm shift in handling of GBV cases. Most importantly, there is a need to train police officers to handle GBV cases as a long term investment in fighting the scourge as well as restoring confidence and dignity among survivors. There is also a need to allocate more funds to police gender desks. These funds would go towards creating private rooms to report GBV in, offering transport to hospitals, creating more safe rooms and safe houses, and offering psychosocial support to survivors of GBV.

The government has on it part tried severally to deal with these challenges but a lot is to be desired. It is high time that GBV was treated as a priority as it has the potency to threaten the basic unit of the society, the family. Only then can survivors of GBV have the access to justice that they so greatly desire.

Nelius Njuguna is an advocate of the High Court of Kenya and a fellow of the East Africa Emerging Public Interest Advocates Programme. She is also a founder of Jinsia Justice, an organization that uses the law to champion for gender equality and inclusion. She avails her voice on behalf of marginalized and vulnerable persons.

Reference

– UN Declaration on Elimination of Violence Against Women

– National Crime and Research Centre, Gender Based Violence in Kenya (2014)

– Institute of Economic Affairs, Status of gender desks at police stations in Kenya: A case study of Nairobi Province, Nairobi: Institute of Economic Affairs – Kenya (2009)

– Ndungu A, The effectiveness of Police Gender Desks in addressing Gender Based Violence: A Case of Nyandarua County Kenya (2016)

– Ndubi M, Reporting rape cases at police stations in Kenya: Human rights dimensions of victims experiences in Nairobi County (2019).


To Do or Not Do: A Critical Look into the Welfare of Persons with Disabilities in the Legal Profession

According to the 2019 census, 2.2% of the Kenyans live with some form of disability. This translates to 0.9 million people which is a significant number of the population. While getting accurate data on disability is challenging due to inter alia the lack of universally accepted standards of counting persons with disabilities and challenges of stigma, the 2019 census conservatively recorded a prevalent rate of 3.5%. These numbers highlight two issues; Firstly, that the number of persons living with disabilities is rising and anyone can be affected. Secondly, PWDs do not only form an important fabric of the population in Kenya, but are distributed in every sector, area, and profession including the legal profession.

 This article therefore, focuses on the dignity and welfare of persons living with disabilities in the legal profession. It argues that there is need for the legal profession to step up and take care of their members with disabilities. It posits that the legal profession and fraternity have a duty to not only promote and protect the rights of persons with disabilities in Kenya, but also to advocate for and safeguard the gains within the Constitution of Kenya, 2010. This article further discusses the challenges that members with disabilities go through within the profession. It suggests that while there is often a distinction between the legal education and the legal profession, it is but the egg and the chick philosophy. It therefore challenges the legal fraternity ‘to do’ and put in place welfare programs for members with disabilities.

DISABILITY AND THE LEGAL EDUCATION IN KENYA

As stated in the preamble, legal education is a big component of the legal profession. It is the gate-pass to the legal profession. It is important to acknowledge that legal education in Kenya is governed by the Legal Education Act, while the Law Society of Kenya Act (LSK Act) applies to matters involving Advocates hence the distinction. This does not however mean that members of the legal fraternity cannot intervene.  Section 4 of the LSK Act gives power to the society to not only advise the Government on legal issues and related matters, but to also improve the standards of learning and knowledge acquisition of advocates.

For persons with disabilities, acquiring legal education comes with a number of challenges. The curriculum used in the Universities and Kenya School of Law (KSL) is not accommodative to learners with disabilities. Learners with hearing impairments or visual impairments are usually the most affected as learning materials are hardly in braille. It is accurate to state that only the Constitution is the only legal instrument that is done in braille. These students have therefore to openly struggle not only to catch up but to get quality in their education.  The other challenge is getting placement for the pupillage program. A lot of firms and institutions that offer pupillage are not situated in friendly environments for learners with disabilities. This refers to availability of ramps and perhaps an open office space for wheelchair users to navigate. Additionally, learners with disabilities are often exposed to mobility challenges, especially those with physical disabilities. The reality is public transport is simply a nightmare and many times humiliating for any lawyer with physical disability starting out in his career putting in mind that at this time the ‘cab option’ is perhaps too expensive. Accommodation challenges especially where they have to look for houses are also part of the deal. The cost of acquiring legal education is also a huge barrier to learners with disabilities as a lot of them usually come from poor backgrounds with very little access to  loans and  grants

DISABILITY AND THE LEGAL PROFESSION IN KENYA

A lot of advocates living with disabilities in Kenya face a myriad of challenges upon admission to the bar. Employment of advocates with disabilities is a challenge. As much as the Constitution of Kenya, 2010, article 54 (2), stipulates that at least 5% of appointive and elective positions are slotted for persons with disabilities, there is no private or Government institution that has reached that threshold. A number of reasons are given for the challenges of employment of professionals with disabilities such as lack of skills. When it comes to the legal profession however, the barrier to employment is law firms and institutions that are not disability friendly and these include the courts.

The challenge of mobility and housing is a reality for any advocate with physical disabilities. Think of an advocate on a wheelchair and files in hand and the set-up of the city of Nairobi with its horrible transport system and perhaps the point will hit the mark. Housing is also another vital area. It is strange that even though housing is part of the big four agenda, few remember that the disabled are disadvantaged when it comes to finding disability friendly houses.

The other challenge that persons with disabilities in the legal fraternity experience is getting documentation such as Income Tax Exemption Certificates or Duty Exemption Certificates for vehicle importation. As much as these are rights in the law, supported by statute and the constitution, the red tape and bureaucracy from KRA and other Government institutions is but a nightmare.

WHAT LSK CAN DO

The LSK can has the mandate and power to change a few things. Working together with the Council for Legal education, they can work on a curriculum that is all inclusive and advice the Government and advocate for disability friendly courts and institutions of higher learning. It does not make sense that a lot of courts in Kenya do not have ramps and lifts yet they are public places.

 The LSK may also work with and advice the Government on regulations to make the public transport disability friendly for PWDs. The LSK may also help in working with institutions such as KRA, NCPWDs and the parent Ministry to remove the red tape when it comes to tax exemptions for persons with disabilities.

LSK has to have data on the members with disabilities. This is important in understanding the challenges and designing appropriate welfare programs. The society may engage the membership so as to create a placement program for advocates with disabilities. Furthermore, young advocates with disabilities may be exempted from taking out practicing certificates as an affirmative program. This can also apply to continuous legal education.

CONCLUSION

This article concludes by challenging the law society of Kenya to recognize and work towards tangible welfare programs to make the legal fraternity inclusive.

By Ouma Kizito Ajuong Advocate of the High Court of Kenya

WHO GETS THE VENTILATOR FIRST? A CASE FOR HUMAN RIGHTS BASED GUIDELINES IN KENYA

The recent surge in the COVID- 19 infections has threatened to overrun the healthcare system according to the Ministry of Health. Our healthcare facilities are experiencing heavy strains with a drastic rise in positivity and fatalities in the recent days. The country is grappling with a third wave said to be more lethal and contagious.

The recent surge in the COVID- 19 infections has threatened to overrun the healthcare system according to the Ministry of Health. Our healthcare facilities are already straining given the drastic rise in positivity and fatalities in the recent days. To worsen the matter, the country is grappling with a third wave of the virus and that is said to be more lethal and contagious.

As of 23rd March 2021, Kenya’s COVID-19 caseload stood at 123,167. This represents a spike in positivity from 2% in January to 22% in March 2021. This data come at the backdrop of a recent study which revealed that Kenya has about 537 Intensive Care Unit (ICU) beds and just under 300 ventilators.

The ICUs have been stretched beyond limits with major referral hospitals reported to have run out of beds, with many more hospitals on the brink of being overwhelmed as Covid-19.

If the projections by the Kenya Medical Research Institute (KEMRI) are anything to go by, then hospitals might be forced to decide on which critically ill Covid-19 patients are saved  and the ones that will be let go due to the shortage of ICU bed. Noting the scarcity of ICU staff and facilities (ventilators and beds), the hard question that begs an answer is; at what point and time should such resources be withdrawn and withheld from some patients and reallocated for others?

Imagine in a situation where two critically ill patients, gasping for air visit the hospital where you are nurse and only one free ventilator is available. One of them is aged but looks strong while the other is young and emaciated. Imagine the older patient being a health care worker. Who do you put on the ventilator?

There are suggestions that you give the ventilator to the younger patient who has more life to live. There are those who suggest that you give the ventilator to the older one as his situation is not as deteriorated and is likely to live a “better life” if he survives.

Others argue against age, and state that the determining factor should be the experience and skills, the assumption being that the older one has a wealth of this.

There are those who argue on reciprocity that the old health care provider risked his life significantly and we owe him for putting his life in harm’s way. Additionally, being a health worker, he is likely to return to the frontline to fight the pandemic if he survives.

Additionally, there are those who argue against prioritizing the ventilator to a person with disabilities by stating that their quality of life is already diminished.

Such suggestions are not unfounded as in 2020, when in the United States policies were being made over looming ventilator shortage, some states such as Tennessee and Alabama conspicuously published guidelines excluding persons with disabilities. This led to concerns by persons with disabilities and huge outcries. As a result, the guidelines were hurriedly pulled down.

The above illustration of scarce ventilators exemplifies the dilemma and complexities of the choices that health care workers have to make. Notwithstanding, the dilemma and the choices health care providers make in such situation may subject them to possible lawsuits and their actions may be weighed against the following bodies of laws:

  1. Criminal law- the healthcare worker may be held liable for patient murder and manslaughter.
  2. Human rights law- The healthcare worker may be called to answer for violations of the the right to life, dignity, health and freedom from discrimination.
  3. Civil law- The health care worker may be accused of negligence.

Earlier during the pandemic, the Italian health officials were made to decide which patient to treat and which to let die when their health care system was overrun. The Atlantic online newspaper on March 11, 2020 explained the situation as follows, “There are now simply too many patients for each one of them to receive adequate care.”

In view of the dilemma posed the Italian College of Anesthesia, Analgesia, Resuscitation and Intensive Care (SIAARTI) published guidelines informed by the principle of maximizing benefits for the largest number. The guidelines provide that “the allocation criteria need to guarantee that those patients with the highest chance of therapeutic success will retain access to intensive care.”

The authors, medical practitioners then crafted a set of concrete recommendations for how to manage these impossible choices including providing when it may become necessary to establish the age limit of a patient.

In Kenya, the starting point should be by the Ministry of Health formulating guidelines and the criteria healthcare workers should follow during the extra- ordinary circumstances. The guidelines ought to suggest the most widely shared and acceptable criteria in cases of scarce health care resources.

Kenya lacks a comprehensive guideline on the allocation of scarce health resources. The only related guidelines touch on the management of COVID- 19 (without providing the criteria for allocation) and further guidelines on what a ventilator prototype should have.

There is no doubt that personal subjectivities may obscure and improperly influence clinical judgments and choices of health care workers when allocating limited resources. A guideline will help cure the arbitrariness, inconsistency, discriminatory and possibly illegal decisions that may be made by the healthcare worker.

The criteria adopted in the guidelines should not penalize the poor and the marginalized. Private hospitals in Kenya have recently been criticized of hiking the cost of the ICU-based healthcare services amidst the pandemic. Allocation of limited resources should not be based on the patient able to pay for the resource rather an objective laid down criteria that covers all.

Adopting a human rights-based approach in the allocation of limited resources that respects human life, does not in dignify patients and does not discriminate based on status and disability is highly encouraged. This will create confidence and will obliterate the legacy of inequalities of our health care system. Particularly, persons with disabilities should not be reduced to stereotypes of their “probable” quality of their life during the pandemic.

We can only wish that we will flatten the curve and that traumatic ventilator decisions will not be widely made in our country.

John Mwariri is an Advocate of the High Court of Kenya

Programme Manager- Legal Aid and Education Department

Kituo Cha Sheria

SEX BETWEEN TWO MINORS: ADHERENCE TO THE LAW VIS A VIS PROTECTING THE CHILD

The question on how to best handle situations where two minors defile each other is a common one in Kituo Cha Sheria’s community paralegals forums.  These cases are numerous in our communities. Two minors mutually decide to experiment on sex and when the girl gets pregnant, her parents report to the police and the boy is arrested.

The question on how to best handle situations where two minors defile each other is a common one in Kituo Cha Sheria’s community paralegals forums.  These cases are numerous in our communities. Two minors mutually decide to experiment on sex and when the girl gets pregnant, her parents report to the police and the boy is arrested.

Defilement is a crime under the Sexual Offences Act. It is defined as an act which causes penetration with a child. Consent in these cases is immaterial. While this law is aimed at protecting children from predators it does not envisage a situation where two children are involved in sexual activity hence the provisions are applied blindly to both children and adults. As a result, our borstal facilities are teeming with young men serving lengthy sentences for having sexual intercourse with adolescent girls who consented to the act. Not only is it discriminatory to only arrest the boy but also illegal that children get charged.

The Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child. Exposing minors to the harshness of the criminal justice system has a lifelong effect on children. Detention affects children’s physical and mental health preventing the enjoyment of their right to childhood, which includes the right to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma. The minors are usually held in facilities that lack adequate staff and infrastructure necessary for life skills training, counseling and other rehabilitative support.

They may face violence and other abuses from fellow detainees and also sexual assault especially when held with adults in police holding cells. Detention stigmatizes them as delinquents and exposes them to others who have committed more serious crimes. It also increases the likelihood of the children breaking the law again. Additionally, having a criminal record in Kenya prevents a person from being employed to work with a child; from holding any position which places him or her in authority; from supervision or care of a child; from becoming a foster parent or an adoptive parent; and from being able to establish a private school.

Non-intervention is the best response especially in non-serious matters or in matters where the family and school are likely to react in a constructive manner. The police, prosecution and other agencies should have discretion to dispose of such cases and divert them to community institutions. This discretion should be at all stages of the proceedings and at different levels of the juvenile justice administration starting from investigation level to disposition. The police and prosecution should be able to divert such defilement cases to community institutions considering the protection of children and the need for proportionality.

The Children’s Act provides for children who should be considered to be in need of care and protection. It includes “a child who is truant or is falling into bad associations; or who is prevented from receiving education; or who is pregnant; or who has been sexually abused; or subjected to FGM or early marriage; or who uses and traffics drugs.” The list does not mention children who defile each other. However, the list provided is not an exhaustive one since the word, ‘including’ is used. Therefore, children who defile each other should be treated as children in need of care and protection and courts should give care, guidance and supervision orders rather than criminal sanctions. 

Closeup of two children holding hands – one African American and one Caucasian

In conclusion, there is a need to amend the Sexual Offences Act to deal with the predicament that it created against children. In the meantime, the ball is in the hands of the criminal justice system. The police and prosecution should divert cases where minors defile each other to community institutions like the church and schools. When intervention of the law is unavoidable, the Court should consider both children to be in need of care and protection and grant care and guidance orders.

By Diana Righa
Programme Oficer, Kituo Cha Sheria