Understanding the Tree at its Roots: General Principles of the Convention of Persons with Disabilities (CRPD) Contextualized

Understanding the Tree at its Roots: General Principles of the Convention of Persons with Disabilities (CRPD) Contextualized

Historically speaking, the Convention of the Rights of Persons with Disabilities was the first human rights treaty of the 21st century. The text was adopted by the United Nation General Assembly (UNGA) in 2006. The law came to force after ratification in 2008 and has 181 members including Kenya. The intention of this instrument was to promote and protect the dignity and the rights of persons living with disabilities around the world. This was crafted on the background that persons with disabilities were viewed more as charity cases rather than people with full inherent human rights and full members of the society. Widely acclaimed as the only instrument with an explicit aspect of sustainable development dimension, this paper looks at the general building principles of this instrument in relation to the domestic laws in Kenya.

Article 3 of the Convention on the Persons Living with Disabilities (CRPD) discusses a number of principles that underpin the rights of persons with disabilities hence the roots of disability right law.  This paper is however out to demonstrate what this principle means and what they portend for Kenya as one of the signatories of the convention.

Principle of Human dignity and Autonomy

The word dignity is derived from the Latin word dignitas which means worth- the idea that all human beings are worthy of respect by the virtue of being human beings. Autonomy on the other hands means that someone has the right to act without influence.  The shift in dimension from looking at PWDs as charity cases to human beings who deserve full rights and enjoyments of these rights brings to life this principle.  Member States are therefore obligated to ensure that these principles are carried within their laws and domestic legislation. In the Kenyan context, the Constitution of Kenya 2010 stipulates that every person has a right to dignity which needs to be respected and protected. Human Dignity is also a national value and principle listed under Article 10 of the Constitution of Kenya, 2010. Article 54 also stresses the inherent dignity of PWDs and qualifies it that they are not to be treated in a demeaning way.  The Persons with Disabilities Act is silent on autonomy and human dignity for PWDs however the very text of the Convention remains relevant in accordance to Article 2(5) and (6).

Principle of Non Discrimination

The principle of non-discrimination tends to guarantee that human rights are generally blind to inter alia sex, race and in this case disability. The Convention frowns upon a world where a person is denied their rights because of disability.  Persons living with disabilities primae facie face discrimination by virtue of societal and cultural design. In Kenya, the Constitution of 2010 is against discrimination of any form.  The Constitution of Kenya, 2010 lists non-discrimination as a national value.  The Persons with Disabilities Act is specific focusing on discrimination with regards to employment however, it is a bigger principle with a wider grasp.

Principle of Inclusivity

This is the idea that persons with disabilities should be included in every aspect of life. It is a principle that intertwines in a beautiful mosaic with other ideas. It is from this principle that the whole idea of disability rights is born. It propagates the idea that persons with disabilities should be included in all the spheres of life.

Principle of disability as Diversity in Humanity

This principle calls for acceptance of persons with disabilities within the society.  It promotes a view of celebrating these disabilities as diversity. The preamble of the Constitution of Kenya, 2010 carries these principles as it encourages the people of Kenya to embrace these differences. This principle is important as it is a reminder that even within the persons with disabilities, there is diversity as different PWDs have different concerns. Disability is diverse in terms of the kind of disability, economic and social status.

Principle of Equality of Opportunity

Persons with disabilities require opportunities in order to live a full social life. In Kenya, the Constitution of Kenya 2010 calls for affirmative action.  Article 56 requires that the State formulates a programme for affirmative action which is meant to ensure equality in opportunity. Article 54(2) on the other hand advocates for reservation of employment opportunities for persons with disabilities. Persons with Disabilities Act also advocates for employment opportunities and Education for PWDs.

Principle of Accessibility

Accessibility is a big concept when it comes to disability law. While the mind will always quickly go to physical access, there is need to think of the principle in a wholesome manner.  This is not to downplay the need for a transport mechanism that considers persons with disabilities or access to buildings and the need to insist on ramps.  The Constitution of Kenya, 2010 as well as the Disability Act covers these areas adequately. The only concern would be access to justice, healthcare, employment [which may be covered] but forms the broader picture.

Principle of Equality in Gender

There is need to recognize that even within the realm of persons with disabilities, there is a wide gap with regards to gender. Women and girls with disabilities are always double marginalized. There is therefore need to focus on this for one to deal with disability issues in a wholesome manner. This is not however to say that women and girls need more attention, rather, their issues are different and require different mechanisms to deal with.

Principle of Evolving Capacity in Children with disabilities

This is a principle that focuses on children living with disabilities. It enhances the thought that the growth of a child while is scientifically documented it is enhanced by the environment that the child grows.Children with disabilities are hindered by their disabilities in one way or another; however, it is a tragedy to imagine that they are affected in one way.

Way Forward

Having understood the root principles that underpin disability statutes and movement, we need to do the following: –

  • Advocate for the progressive implementation of these rights and principle in a manner that shows progress
  •  Create awareness amongst the province of PWDs so that they understand these as legal rights and not charity by the State
  • Involving the Courts and the Judiciary as well as Parliament and the Executive in formulating plans and finding solutions in matters PWDs

By: –

Ouma Kizito Ajuong

Advocate of the High Court of Kenya &

Person with Physical Disability

https://www.facebook.com/pennyformythoughtsKZ/

https://www.poeticfountain.wordpress.com

International Day of Disabled Persons- Dec 3: [2019 Theme: Promoting the participation of persons with disabilities and their leadership: taking action on the 2030 Development Agenda]

The annual observance of the International Day of Disabled Persons was proclaimed in 1992 by United Nations General Assembly resolution 47/3. It aims to promote the rights and well-being of persons with disabilities in all spheres of society and development, and to increase awareness of the situation of persons with disabilities in every aspect of political, social, economic and cultural life.

Building on many decades of UN’s work in the field of disability, the Convention on the Rights of Persons with Disabilities, adopted in 2006, has further advanced the rights and well-being of persons with disabilities in the implementation of the 2030 Agenda for Sustainable Development and other international development frameworks, such as the Sendai Framework for Disaster Risk Reduction, the Charter on Inclusion of Persons with Disabilities in Humanitarian Action, the New Urban Agenda, and the Addis Ababa Action Agenda on Financing for Development.

CULTURAL CHANGE KEY TO ENDING VIOLENCE AGAINST WOMEN

CULTURAL CHANGE KEY TO ENDING VIOLENCE AGAINST WOMEN

It should not surprise anyone that violence against women remains one of the most wide-spread acts of violations of human rights. Statistics show that one in every three women or 35% of women around the World will experience some form of violence during their lifetime. These acts have proven to know no geographical or cultural boundaries as they remains wide-spread across the World; it’s a global crisis!

Violence against women takes place in different forms including domestic violence, sexual assault, and female genital mutilation. Women from marginalized communities especially those from poor backgrounds are more likely to experience it with most of it coming from their husbands and partners. It is a culture deep-rooted in the gender inequality and stereotypes that women have been subjected to for ages- since time immemorial with most believing that violence against women and girls is normal and acceptable in the society. This thinking has made violence towards women become one of the most widespread injustices and violation of human rights wide long-term harming effects on the lives of women, their communities and societies at large.

Violence against women remains one of the biggest barriers towards social, political and economic development in the world. It not only devastates the lives of women and divides communities but also undermines development efforts and the building of just and peaceful societies. Women get locked in poverty and are unable to exploit their freedoms and rights fully, some of which are inherent. For instance, women are unable to participate in political life as well as being limited in their access to education and being able to earn a living.

Efforts towards ending violence over the years have focused on the survivors of these acts but don’t seem to look into the root causes at all- which happens to be mostly cultural. Bias against women and girls, in most instances; starts at a very young age. Female children the world over begin experiencing sexual and physical violence at the hands of boys and men they know well before they become adults. These experiences have damaging impacts on their mental and physical health as well as their likelihood of continuing to experience violence into adulthood. In most societies, for instance, women have been perceived as lesser human beings. Small girls face more punishment for mistakes at home while boys would more often get away with much under the disguise of them being boys. Discriminations against women and girls most times leads to violence against them. Societies with a higher degree of equality experience lesser acts of violence against women and girls.

More work therefore need to be done at this early stage in life in dealing with violence against women by educating and promoting respectful relationships between young boys and girls and cultivate a culture of mutual respect, gender equality and responsibility. Public policies which often overlook this critical stage need to relook at this critical stage of life where cultures, values and norms are nurtured.

It is time for all stakeholders including women, women, civil societies, government officials, religious groups and policy makers to step up efforts in addressing the biggest distraction towards ending this widespread injustice against women. It is time for the world to challenge the deeply-rooted unjust cultural norms that encourage men’s control and power over women and that further encourage tolerance for violence against women.

By:

Douglas Mwale

RCKM-Kituo cha Sheria

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

The Managing Director, Kenya Ferry Services (KFS);

7th November 2019

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

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

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

As such we raise the following concerns:

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

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

On account of this statement, we state:

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

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

Signed:

The Civil Society Reference Group (CSRG)

Mombasa, Kenya

SUCCESS STORY OF EVERLYNE AGUTU NYAGWA

SUCCESS STORY OF EVERLYNE AGUTU NYAGWA

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

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

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

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

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

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

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

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

By:

RCKM

Kituo Cha Sheria

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

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

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

This paper is however concerned with three issues;

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

Occupation Health and Safety as a Disability Rights

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

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

Occupation Health and Safety within Disability Law

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

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

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

What about Jurisprudence from the Courts? 

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

Which Way Forward?

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

I therefore propose the following interventions: –

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

By:

Ouma Kizito Ajuong’

Advocate of the High Court of Kenya

https://www.facebook.com/pennyformythoughtsKZ

https://www.poeticfountain.com/thevoiceofafrica

SUCCESS STORY OF JOHN MUKOMA

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

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

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

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

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

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

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

By:-

RCKM

Kituo Cha Sheria

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

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

___________________________________________________________________________

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

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

1.0 PEACE JUSTICE AND RECONCILIATION PROJECT (PJRP)

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

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

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

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

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

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

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

ACHIEVEMENTS

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

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

2.0 ALTERNATIVE JUSTICE SYSTEMS PROJECT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE (MHPSS) PROJECT

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

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

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

RCKM

Kituo Cha Sheria