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

STATE HAS TO PROCEED WITH PRISON REFORMS BEYOND HON. MOODY AWORI

University of Nairobi egghead, Tom Odhiambo states, ‘indeed, if Kenyans were to remember Moody’s public service in future, his prison reforms will always remain his strongest point.’[1] In his book, Riding on a Tiger, the former vice presidentis rightfully famed for his astute voice and steps towards reforms in prison. The book recounts the systemic challenges he confronted at the time. He is however grateful of the support lent by the then President, Mwai Kibaki and key technocrats in the department. Those in prison at the time felt the difference after years of repression and pain.  Courtesy of his interventions, prisons acquired the reflection of reform credentials than punishment centres. Inmates got respectful buses, could engage more freely with officers and opened facilities to more human rights assessment.

Soon after Moody’s progressive involvement, the paralegals at Shimo La Tewa in collaboration with Kituo Cha Sheria successfully petitioned for their political rights to vote. In 2017, inmates cast votes for their preferred presidential candidates for the first time in history of the Republic of Kenya. Despite that stride, the right to vote is yet to be fully realized in prisons. The infrastructure to facilitate this exercise remains inadequate. In the last elections, they couldn’t vote for other seats other than president. This matter needs urgent address ahead of elections in 2022. In the very elections, less than 10 percent qualified to vote. We are at that moment when IEBC in collaboration with Prison department and the National Registration Bureau should initiate the process of raising these numbers.

You may be seeking to know how voting will improve their standing. Like every Kenyan, the right to vote is enshrined under article 38 of the Constitution. The moment a decision to elect other officers shall be made, candidates will embrace inmates’ interests in their manifestos and into the obligatory policies. Discourses on who ends up in prisons, like whether they are only built for poor, yet billionaire thieves continue plundering public resources with reckless abandon shall ensue. It may speak to rate of crime and improve research. In short, engagement in elections will augment their citizenry participation as enshrined in the constitution.

For the last one year, Kituo Cha Sheria has been implementing a project called Njia Za Haki, supported by European Union and UNDP Amkeni Wakenya. It is part of the novel Programme for Legal Empowerment and Aid Delivery in Kenya (PLEAD), a partnership involving Government of Kenya, European Union, United Nations and the Civil Society. It is framed to enhance access to justice for the poor and marginalized strengthening institutions and sensitizing communities. Kituo has been working closely with the prison department, specifically Shimo La Tewa men and women facilities in Mombasa County. This is besides the community justice centres– KICODI and Stretchers Youth Organization in Kisauni and Changamwe respectively.

Arising therefrom, the organization has trained 60 paralegals, 30 apiece in the prison facilities. Good luck, 35 have exited the facilities. These paralegals are inmates with basic education certificates. They can read and write. The training equips them with basic knowledge of the law. The knowledge empowers them to guide fellow inmates, including those under remand. They draft pleadings and ensure their counterparts have the requisite confidence to articulate perspectives in court, more a time, against state counsels. The remandees and those seeking appeals can cross examine witnesses, offer plausible responses and defenses of matters at hand. Paralegals participate with marvelous vigour. Their work is well structured. They write their own reports and update partners on progress. They conduct competitive moot courts for their practice. In the last one year alone, they have drafted 176 petitions, 205 submissions and guided acquittals of 180 persons. In the same duration, 125 sentences were reduced. Kituo forwards stationery on monthly basis, besides the requisite visits to assess progress. This model can work for all prisons in Kenya if the Legal Aid service is facilitated to work in the replica defined under the Legal Aid Act, 2016. 

Njia Za Haki has provided an opportunity for partners to seek answers on status of reforms, specifically the matter of the death sentence. You recall, in 2017, the Supreme Court delivered an earthshaking finding.  It directed that the mandatory death sentence in the current form be annulled and necessary amendments ensue to the Penal Code. The decision is pending implementation. It is somewhere between the office of the AG and Parliament. While the state agencies remain in the la la land, courts have embraced this precedent. Those who have been in prison for over 20 years, including, under death row are exiting. The chair of the paralegals, Mr. Yusuf Shiunzu equates the judgment to the biblical Paul and Silas.

However, guidelines are essential for clarity. In the current form, there are possibilities of abuse by court and those seeking justice. For instance, at the point of petitioning courts, the positions of the victims are never sought. A report showing extent of progress and reform, from an independent eye are hardly availed or considered. These are gaps that the legislature should be keen to address. 

While at it, the Hon. Attorney General and responsible state officers should strengthen institutions of access to justice for the poor. The Legal Aid Service remains hollow with few staff and inadequate funds to run its affairs.

Finally, it is empirical that those exiting Prison facilities, especially those who served long sentences deserve sustainable and practical solutions to avoid recidivism or neglect and subsequent premature deaths. Even though the path to prison reform is still long, it must embrace access to justice for the poor. Let’s continue walking.

Mr. Zedekiah Adika is a program officer at Kituo Cha Sheria and convener of Coast Civil Society Network


REFUGEES AND COVID 19

“This year, the COVID-19 pandemic poses an additional threat to refugees and displaced people, who are among the most vulnerable. My recent Policy Brief on COVID-19 and People on the Move called on governments to ensure that they are included in all response and recovery efforts”- UN Secretary General, António Guterres

As the world marks the World Refugee Day on 20th June 2020, we need to be cognizant of how the COVID-19 pandemic has impacted refugees and asylum seekers who fall in the category of the marginalized and vulnerable more so those residing within our urban areas. It goes without saying that the novel Coronavirus pandemic has impacted everyone in the world- Kenyans and the refugee community alike. The pandemic has no discrimination. It knows no border, no barrier and no language.

Currently, there are close to 81,000 refugees living in Nairobi. Refugees residing in urban areas largely give up access to humanitarian assistance by multi-agencies that offer financial and material support in the refugee camps. Those residing in urban areas such as Nairobi, Mombasa, and Nakuru are required to be self-sustainable. Most refugees and asylum seekers choose to live in urban centers to access better economic opportunities and social services such as health and education for their families. Some have opened businesses while others have ventured into informal employment so as to sustain their families.

 In the wake of the pandemic, the Kenyan government in order to curb the spread of the virus enforced the dusk to dawn curfew. They also enforced the lockdown of Nairobi, Mombasa, Kilifi and Kwale counties as part of stringent measures to curb inter-counties community transmission of the virus.

The enforcement of the strict measures which restricted movement has had a huge impact as it restrained mobility affecting Kenyans and refugees alike- they are not able to pursue their livelihood.

It should be noted that in the course of any crisis or pandemic, there may be numerous violation of human rights including social and economic rights, civil and political rights. As a country we should not forget that these rights are fundamental and need to be respected across the spectrum regardless of the situation being experienced in the country.

Refugee rights also recognize that in the context of serious public health threats and public emergencies threatening the life of the nation, restrictions on some rights can be justified when they have a legal basis; are strictly necessary; based on scientific evidence and neither arbitrary nor discriminatory in application; of limited duration; respectful of human dignity; subject to review and proportionate to achieve the objective.

With the scale and severity of how the pandemic is spreading it is seen as a threat to public health and the government can justify the restriction on certain rights such as imposing the curfew, imposition of quarantine and isolation as well as limiting the freedom of movement. At the same time they pay careful attention to human rights.

Refugees and other persons displaced by conflict belong to the most marginalized and vulnerable members of society. They have had an extremely difficult time adjusting to changing times. Most urban refugees who live in informal settlements have limited access to water, sanitation systems and health facilities.

At the same time, careful attention to human rights such as non-discrimination and human rights principles such as transparency and respect for human dignity can foster an effective response amidst the turmoil and disruption that inevitably results in times of crisis and limit the harm that can come from the imposition of extreme measures that do not meet the above criteria.

The government should ensure that any actions taken or any restrictions imposed concerning COVID-19 are consistent with the forgoing advice from medical and public health officials; and are justified for health and safety reasons.

At the same time, the right to be free from discrimination can be limited under the law, for example, where health and safety risks are serious and would amount to undue hardship, or where actions that appear to be discriminatory can be shown to be reasonable and justifiable.

Some of the rights that may be violated in the midst of the pandemic may include;

RESPECT OF HUMAN DIGNITY

Since the declaration of the curfew by the President to slow down COVID-19 infections across Kenya; there have been reported incidences of lethal use of force by police officers and law enforcement officers. The weapons used under the guise of enforcing the curfew are whips, batons, teargas, and live bullets. Violence has been used to clear the streets, sometimes before onset of the dusk curfew. There have been reports of police harassing individuals and the use excessive force in order to contain the situation. We have had cases where at least 5 deaths have been reported- cases directly linked to the police in enforcing the curfew orders.

Article 28 states that every person has inherent dignity and the right to have that dignity respected and protected. The law enforcement officers should be aware that even in times of such directives the Constitution is supreme. While international human rights law does not prohibit restrictions on personal liberty in times of emergency, it never permits torture or cruel, inhuman or degrading treatment, and always requires any police or military use of force to be proportional, necessary and reasonable.

ACCESS TO SEEK ASYLUM DURING THE PANDEMIC

 The closure of the border entry points by the government as part of public health measures in order to contain the transnational spread of COVID-19; while making no exception to women, children and men fleeing threats to their lives and freedom contravenes international law principles of non-refoulement that prohibits countries from turning away people at a border and returning them in countries where their lives are in danger or where they are being persecuted.

The Kenyan government should find solutions that respect international human rights obligations such as right to seek asylum.  They can explore medical testing and screening and have quarantine facilities at the border but allow access to asylum as a means of protection for individuals seeking protection of the country.

ACCESS TO INFORMATION AND PARTICIPATION

Everybody has the right to be informed of the threat COVID-19 poses to their health, the measures to mitigate risks; and information about ongoing response efforts. The failure to guarantee this undermines the public health response and puts everyone’s health at risk.

A rights-respecting response to COVID-19 needs to ensure that accurate and up-to-date information about the virus, access to services, service disruptions, and other aspects of the response to the outbreak is readily available and accessible to all.

By:

Yunia Atieno, Advocate

Forced Migration Programme-Kituo Cha Sheria

Left behind-access to wage earning employment for refugees in Kenya

“Before you judge a man walk a mile in their shoes”

Imagine yourself in this case scenario, where you have gone through school and qualified as an advocate, a doctor or an engineer in your home country, then war breaks out in your country or you experience certain circumstances that would make you fear that you may be subjected to persecution and you have to flee your country of origin and seek asylum.

As is the nature of the above mentioned circumstances, they are unpredictable and the reasons you fled your country is unresolved for a prolonged period. You find yourself in a place of vulnerability and because you have to adopt to this new situation decide to adjust and seek a livelihood in the country of asylum. You are well aware of your qualifications and as a result you start looking for jobs as is required, to sustain you and your family. The first step would be to apply for a work permit.

The process is very difficult and with every attempt you discover that it is almost impossible to obtain one. The system seems to have been designed to place you at a disadvantage despite all the vulnerabilities you already experience. The policy environment is very restrictive.

You come to the unfortunate realization that for the rest of the time you spend in that country of asylum you and your family will only have access to the informal sector, start a business or be condemned to receiving humanitarian aid for the rest of your time in the country of asylum.

Just imagine that! This is the reality of most refugees and asylum seekers all around the world.

Doctors, lawyers, teachers, engineers- persons with varying technical skills- many of whom are now either in refugee camps or stuck hawking in the streets or conducting various small business just to get by.

The Kenyan situation

Kenya’s refugee experience dates back to the early 1970s, when it hosted many Ugandans displaced by the political coups of the time. The influx of refugees into Kenya resumed in the early 1990s, triggered by conflict and insecurity in Somalia, Ethiopia, and the Great Lakes region. Among the refugee population currently living in Kenya- there are large numbers of refugees in situations of protracted displacement hosted by Kenya for more than 20 years; and refugee children who have been born and raised in Kenya.[1]

As such many of the refugees have integrated with Kenyans and have fostered strong relationships. However it seems as if the integration is only social and not economic. The restrictive policy environment surrounding wage earning employment in Kenya has made it almost impossible for a refugee to get a decent job even after years of socially integrating with members of the host Community.  

What is even more unfortunate is that refugees, who are forced migrants are treated the same as aliens if not worse and more so when it comes to economic inclusion and access to services.

Article 2(6) of the Constitution of Kenya, 2010 makes every treaty and convention Kenya has ratified part and parcel of Kenyan law and this includes the 1951 Convention, the 1967 Protocol and the 1969 OAU Convention- all related to refugees and asylum seekers.

It is of importance to note that refugees are human beings and are entitled to human rights in international and national legal systems of the host country except with respect to the rights that accrue to citizens only.

Article 17(1) of the Convention provides for wage-earning employment for Refugees lawfully in the country of asylum. Further Article 17(1) must also be read in light of Article 6 of the Convention, which, collectively, requires that refugees lawfully staying and who are entitled to wage-earning employment must be exempt from any requirements to obtain work permits if they are unable to meet those requirements due to the hardship that resulted from their forced displacement.

Traditionally, refugee response actors have intervened primarily through the provision of humanitarian aid. While humanitarian aid has an essential role to play in protecting the physical security of refugees; this alone is not enough. A comprehensive response mechanism must extend beyond short-term needs if it is to enable refugees to rebuild their lives and achieve self-sufficiency during displacement. This is why their access to wage earning employment is necessary.

Unfortunately, it has become common practice in Kenya for refugees to be subjected to the same preconditions to access work permits as those of economic migrants and foreigners which should not be the case because these are people who have been forced to leave their country of origin because of a well-known fear of persecution.[2]

While fully well aware that the right to work is not absolute; the restrictions placed on the refugee applicants is not justifiable in an open and democratic court as indicated in Article 24 (1) of the Constitution of Kenya, 2010.

A brief summary of the application process is that the refugee is required to make an application to the Department of immigration and registration of persons. They do this through submission of a duly filled and signed Form 25 online form which is a standard form for all work permit applications. Further they would be required to present two copies of detailed and signed cover letter from the employer/organization/self, addressed to the Director of Immigration Services, copies of their passport in the case of refugees- this is the Conventional Travel Document, two(2) recent passport size coloured photos (for both new and renewal) ,their immigration status in the country; a valid organization Tax Compliance Certificate for new cases  and most importantly a recommendation letter from the Refugee Affairs Secretariat (RAS).

You will note that in the Form 25 one of the questions asked is ‘what steps have you taken to confirm that the skills/qualifications sought are not available locally?”.

This question already prejudices refugees and this is majorly because they are in the country of asylum seeking protection from that particular state. The possibilities of them having the same skill set as the people in the country of asylum are very high. This being the basis of denying them access to wage earning employment is not justifiable as it is almost unattainable. You may find that the only specialised skill would be that they can speak a different language- however this is not enough as we have many Kenyans who are multilingual.

What does this then mean?

This means that many refugees have been cut off from wage earning employment primarily based on the lack of understanding of their specific vulnerabilities and the reasons as to which they are in the country.

If the concerned ministry and government agencies are to understand that there is a very huge difference between refugees and other aliens applying for the work permits; they would feel the need to create specific guidelines that would address this group.

Access to safe and lawful employment is a fundamental human right. It applies to all persons, including refugees and asylum seekers, and with good reason. When permitted to engage in safe and lawful work, an individual may fulfil his or her basic survival needs and contribute to the needs of the family, community and the country in which they reside. The realization of the right is the means through which the individual may achieve a range of other rights, fulfilling the human desire to feel useful, valued and productive.

In the South African Supreme Court of Appeal observed in the case of  Minister of Home Affairs v. Watchenuka (2004) 1 All SA 21, per Jugent JA, para. 27 the learned Justice stated:

“The freedom to engage in productive work – even where that is not required in order to survive – is indeed a part of human dignity for mankind is pre-eminently a social species with an instinct for meaningful association. Self-esteem and the sense of self-worth– the fulfilment of what it is to be human – is most often bound up with being accepted as socially useful”.

Furthermore, with the adoption of the 2030 Agenda for Sustainable Development, 193 United Nations Member States- including Kenya- pledged to ensure “no one will be left behind” and to “endeavour to reach the furthest behind first”.

In practice, this means taking explicit action to end extreme poverty, curb inequalities, confront discrimination and fast-track progress for the furthest behind.

People are left behind when they lack the choices and capabilities that enable others to participate in or benefit from human development. This can be due to their experience of:

  1.  Absolute deprivation, where they live in multi-dimensional poverty or below other minimally accepted standards of security, income, public services, infrastructure or well-being; and
  2. Relative disadvantage, where they face exclusion, discrimination and/or entrenched inequalities; are less able to gain influence, get an education  survive setbacks, acquire wealth, access job markets or technologies; have shorter, riskier lives; rank below median in SDG outcomes and opportunities[3].

With the acknowledgement of the numerous groups in the country that may be left behind, refugees and asylum seekers are still a part of them. Refugees being part of our society for over 20 years we cannot continue to ignore the need for them to earn a living through wage earning employment.

Lack of knowledge and information is a powerful barrier to tackling the disadvantages, deprivations and discrimination that leave refugees out of the job market. The Government has the mandate to manage refugees in Kenya and as such providing an enabling environment for them to access the labour markets through wage earning employment.

In addressing this; the Department of Immigration should look into categorically differentiating refugees from economic migrants not only as to the class of permits issued, but in the administrative process. Asking of new skills being brought into the country by a refugee is asking far too much from a vulnerable population that has been forced to flee their country of origin.

The restrictive policy environment is what leads to the refugee population being over reliant on humanitarian aid and government support and as such it denies well able people to participate in growth of our economy as employers, employees, taxpayers, and innovators.

When refugees work and become self-reliant, the cost to host governments and partner organizations accruing to hosting refugees declines or completely disappears. The more barriers refugees face accessing the labour market; the less they can contribute and the greater the costs to refugees and those supporting them.[4]

Kenya should be reminded that work is an international human right, available to refugees lawfully in and lawfully staying in a country of asylum; and not merely an entitlement that may be extended or withheld as a matter of government policy or discretion.

Advocacy around this area is paramount as we cannot continue to ignore the fact that refugees too are a part of us and they deserve the opportunity to contribute to the economic growth of this country. This year Kenya and the world are reminded that everyone, including refugees, can contribute to society and Every Action Counts in the effort to create a more just, inclusive, and equal world.

#EveryActionCounts

By:

Charity Wangui, Advocate

Legal Officer

Forced Migration Programme -Kituo cha Sheria


[1] Refugees’ Right to Work and Access to Labour Markets – An Assessment*+]Roger Zetter and Héloïse Ruaudel† September 2016

[2] Section 3 of the Refugee Act No. 13 of 2006

[3] WHAT DOES IT MEAN TO LEAVE NO ONE BEHIND? A UNDP discussion paper and framework for implementation July 2018, http://www.undp.org/content/dam/undp/library/Sustainable%20Development/2030%20Agenda/Discussion_Paper_LNOB_EN_lres.pdf

[4]The Economic and Fiscal Effects of Granting Refugees Formal Labor Market Access by  Michael Clemens, Cindy Huang, and Jimmy Graham pg.5

Coastal counties must open budget process for voices of residents

Treasury Cabinet Secretary Ambassador Ukur Yattani Kanacho unveiled a budget of Kes. 2.73 Trillion on 11th June 2020. Out of the amount, Kes. 369.9 Billion was allocated to the counties[1]. The Coastal counties take home over Kes. 37.9 Billion, with Kilifi scooping the lion’s share, almost Kes. 10 Billion. Mombasa on the other hand has projected an expenditure of Kes. 14.6 Billion, with Kes. 5 Billion expected from the depleted local source, Kes. 7 Billion from central Government and over Kes. 2 Billion from grants. In the back of your mind, the Coast has sunk over Kes. 216 Billion since the dawn of the devolved economy[2]

Per se, you would envisage the lives of the Coastal people glowing positive output. It remains a mirage in the current order of events. There have been a number of vital challenges in origination of these budgets. The end product portends little for the common man. Despite laboring the burden of taxation, they remain vulnerable and at risk of death from hunger. Case in point, Covid 19 pandemic and the subsequent begging bowl by both central and county governments. State could not feed its citizens for a week. Notwithstanding the fact that they have paid taxes all their lives. The hope of a salvaging vision to put the projected amount to proper use for the good of the people is hollow.

The hoi polloi have the law on their side though. The constitution of Kenya is replete with articles requiring citizen voices in budget making process. Right from article 1, 10, 174, 201 and more. The very spirit and letter is visited in the Public Finance Management Act 2012, County Government Act 2012, and Access to Information Act 2016, related statutes, case law and policies. The State is mandated to enable citizens’ participation in their affairs. 

Devolution of power and resources foresee trickling down effect. The primary focus being the Kenyan at the periphery. It is the hallmark of decentralization as anticipated under chapter eleven of the Constitution and aligned statutes. Power and resources should be in the hands of the people.

The provisions under these laws outline institutional framework and guidelines under which citizen engagement ought to be conducted. For budget process to enjoy the legitimacy of the people, there must be proactive County Executive Committee, vigilant County Assembly, functional County Budget Economic Forum, well-designed Sector forums, facilitated County Administration units where sub county and ward administrators reside. These institutions requires the oiling of essential political will to drive the people’s agenda. We lack in this aspect. The Coastal Counties have proceeded to design budget documents in blatant disregard of these institutional frameworks. For instance, Mombasa proceeded to prepare upcoming budget without a complete functional County Executive Committee. Section 129 of the Public Finance Management Act requires the tabling of budget estimates before a fully-fledged County Executive Committee defined under article 179 of the Constitution. More disturbing is the fact that since 2017, the County has never found it necessary to establish the County Budget and Economic Forum. This is despite the statutory obligation to establish the institution 30 days upon the formation of the County Executive Committee. We therefore formulated five year plan, the CIDP, without such a fundamental institution.

Access to information is another key factor. Article 35 of the Constitution and provisions under the Access to Information Act require state to be proactive in availing to the citizenry. The Public Finance Management Act (PFMA) goes ahead to set dates and procedures of budget making at the county budget. Sections 125 and 126 of the PFMA are notable examples. They outline the formulation, approval, implementation and evaluation of a county budget. These processes require citizen voice, utmost transparency and in sync content.

Currently, the requirements remain in the book. The implementers of the law are rudely reluctant to facilitate Wanjiku’s role in budget making process. Despite rushing to conjure public forums, what happens in those platforms are way below the threshold of public involvement. This financial year illustrates; in the advent of the pandemic, you would expect optimum utilization of online platforms especially social media. Information within the confines of the Coast Civil Society reference group paints a bleak picture to this case. Kituo Cha Sheria conducted an on desk research to establish the extent to which information is captured in the websites of the Coastal counties. They monitored the websites between 22nd May 2020 and 12th June 2020. Lamu has no budget document online for this financial year. Mombasa County Assembly updated their website on 28th May 2020 after the push by the Coast Civil Society Network. This happened under the Governance thematic area. Notably though, this was long after the Budget estimates were passed by the Executive and tabled at the Assembly. The lobby comprising of over 30 organizations represented by Lenggo, LSK Mombasa, Kituo Cha Sheria, Kwacha Africa and Catholic for Peace held a meeting with representatives of the county executive and the county assembly on 28th May 2020. The documents were subsequently uploaded. Consequently, the lobby sought for more time extending the original submission deadline from 2nd June 2020 to 10th June 2020. Kwale County had neither called for the submissions nor provided for modalities of engagement on the Budget Estimates. The documents are missing from their website.

The other three counties, Tana River, Taita Taveta and Kilifi are not pleasantly placed either. The sum total of documents uploaded by at their Executive and Assembly websites cannot support comprehensive analysis and issuance of sublime submissions.

The Counties’ regard to the fundamental process of budget making loathes at the dream of devolution. Little evidence evince to buoy people’s participation. In Mombasa, the Governance lobby unit had to seek an appointment with the speaker of County Assembly of Mombasa to push for copies to be provided to every ward. This is after the Sector wrote a letter calling Assembly back to session. The ‘Waheshimiwas’ had gone home and forgot their central duties of oversight, approval of budget policies, representation and legislation. Civil society had to go on social media to call them out before resumption to duty. It is a clear manifestation of a house out of touch with reality and unworthy of resources invested on them. From this process, the weakness of Assemblies are self-expressive. Their capacity to capture the moment and rise to occasion is uninspiring. They are held captive right from their political parties. The Executive remains in total control. In the advent of the masculinity of the Assembly from the National level, the poor and the vulnerable ‘cannot breathe’. May George Floyd’s soul rest in peace.

Covid 19 has made matters unbearable. Every county took a backseat in the excuse of the anti-gathering regulations. The executives in these counties formulated the budget proposals on their own terms and standards. Yet, due to Covid 19, the voices of the people needed more space for the following three reasons:

One, ideally the budget making process begun in August 2019 when the budget circular was due for release. In September, the Annual Development Plan 2020/2021 was formulated and approved. Allow me to say, in instances where this happened. This plan ought to guide the development plans in the upcoming FY. The circumstances of its creation were oblivious of the pandemic which struck us early this year. We will have to live with the consequences of the same for the next FY. Public input to the Budget Estimates was thus necessary to review development priorities and capture new normal.

Second, there is a dire need to revive economy and to boost businesses in the road to recovery. We missed an opportunity for a vibrant discourse towards resumption of growth.

Third, the mode of engagement have significantly changed with Covid 19. New ideas are emanating albeit with gaps. Social media which is a gem for the youth, doesn’t work for the elderly. Proactively, the Counties had a responsibility to seek innovative ways to touch the Citizenry. May be a blend of strategies would work.  It was not the time to completely shut voices. State chose the latter.

The directive by the Ministry of transport requiring all cargo be loaded to the dreaded ‘snake’ (SGR) has led to fundamental economic downturn in the region. All families that relied on clearing and forwarding firms and truck chain businesses remain under economic oblivion. Obviously at the detriment of the region.

While the above point to a bleak future, the road towards change is clear and eminent. The vigilance of the populace remains the sole fulcrum to drive change. It is on this backdrop that Kituo Cha Sheria and other like minded organizations under the umbrella of Coast Civil Society Reference Group are on the road to reinvigoration of the voices of the masses to capture their space. The lobby will rope in key sectors like Business Community; Boda Boda, Matatu Sector, traders – both small scale and large scale, all in their numbers. We will knock the doors of the professional clusters like the Law society of Kenya, teachers, health workers, engineers and Unions in the coast to push state. The religious community of all creed must join the mission.  The cancer of State Capture, lethargy in Public service and barefaced corruption must be discarded. Corona or Not, the right to involvement of people and institutional growth must begin in earnest.

Zedekiah Adika, Advocate Kituo Cha Sheria

Chair, Coast Civil Society Reference Group

Dated, 13th June 2020.


[1] https://citizentv.co.ke/business/budget-day-inside-2020-2021-ksh-2-73-trillion-spending-plan-335314/

[2] https://www.crakenya.org/wp-content/uploads/2013/10/CRA-Recommendation-on-the-Basis-for-Equitable-Sharing-of-Revenue-Between-National-County-Governments-for-FY2020-21.pdf

Legal Opinion on the Executive Order No. 1 Of 2020

Kituo cha Sheria (hereinafter referred to as “KITUO”) is the oldest legal non-governmental organization in Kenya. Its mission is to provide general legal education to the Kenyan people through the delivery of civic education programmes, legal aid, and strategic public interest litigation as well as monitoring the implementation by the State, of the constitutional provisions on human and peoples’ rights through regular research and reporting.

On the 3rd June 2020 the President issued Executive Order No. 1 of 2020 in exercise of powers conferred on him under Article 132(3) (b) of the Constitution which mandates the President to direct and co-ordinate the functions of ministries and government departments.

The Executive Order No. 1 of 2020 is designed to include the Judiciary, Commissions and Independent Offices as government organs to be organized as set out in the order and further as institutions under or functions of ministries, government departments and other constitutional bodies. Like government ministries and government departments, the Judiciary, Commissions and Independent Offices are placed under the control and direction of the President. 

We are gravely concerned that the inclusion of the Judiciary, Commissions and Independent offices in the Executive Order, suggests and or creates the impression that these institutions, like government ministries or government departments are under the control or direction of the President.

To the extent Executive Order No. 1 of 2020 purports to empower the President to order and direct the organization of government and thus include the Judiciary, Commissions and Independent offices as some of the functions to be organized, it contravenes the principles of separation of powers and institutional independence.

The doctrine of separation of power contemplates an environment of separation of functions, independence and autonomy of institutions and separation of persons where a state organ does not assume control of more than one arm of Government. The spirit and vision behind separation of powers is that there be checks and balances, and that no single person or institution should have a monopoly of power.

KITUO affirms that Article 160 of the Constitution clearly provides that the Judiciary shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority, including the Executive as the Executive Order purports.

Article 161 (2) (a) of the Constitution, on the other hand, states that the head of the Judiciary is the Chief Justice. It prescribes that the Chief Justice is the chairperson of the Judicial Service Commission as stipulated by Article 171.

Article 249(2) of the Constitution guarantees institutional independence by stating that the Commissions and the holders of Independent Offices are subject to the Constitution and the law and are independent and not subject to direction or control by any person or authority.

KITUO takes cognizant of the fact that ordinary citizens including its clients approach the court, commissions and independent offices seeking justice and services and the impression that the offices are under the control of the Executive will erode the general public confidence in the institutions.

We take the view that for effective delivery of justice and services the judiciary, commissions and independent offices need to enjoy public trust and their authority need to be accepted by the general public. If the general public believe that the decisions of the judiciary, commissions and independent offices are unfair and influenced in any way, then their decisions will lose legitimacy and respect hence undermining the rule of law and the confidence that they can access justice.

It is within this background that we, therefore, assert that the President has no power to coordinate or direct the Judiciary, Commissions and Independent Offices to include: the Judiciary; the Kenya National Human Rights and Equality Commission; the National Land Commission; the Independent Electoral and Boundaries Commission; the Parliamentary Service Commission; the Judicial Service Commission; the Commission on Revenue Allocation; the Public Service Commission; the Salaries and Remuneration Commission; the Teachers Service Commission; the National Police Service Commission; the Auditor-General; the Controller of Budget; and the Director of Public Prosecutions.

KITUO stresses that the issuance of Executive Order No. 1 of 2020 exemplifies a departure from the basic principles of separation of powers and undermines the independence of the Judiciary, Commissions and Independent Offices as guaranteed by the Constitution.

KITUO, therefore, recommends that the Government nullifies and or withdraws the Executive Order No.1 of 2020 for being unconstitutional.

We finally wish to reaffirm our commitment to promote constitutionalism, the implementation of the Constitution and the rule of law and justice to all the citizens of Kenya.

BY:

Mr. Justus Munyithya- Chairman, BoD

Dr. Annette Mbogoh- ED/ Secretary, BoD