Kituo involved in Promotion of natural resource management, economic justice and human rights protection along the LAPSSET corridor.

Kituo cha Sheria Mombasa office has been working towards raising national and international awareness on human rights abuses related to the LAPPSET and promoting transparency and accountability to its citizens. This has been through conducting trainings on inter community dialogue forums. Participants from local civil society organizations (environmental groups, development organizations, youth groups, women organizations, welfare groups, and local communities) who fall under the Save Lamu coalition were involved in the training. 39 were male and 21 were female. The inter-dialogue forum allowed for the community to share their experiences in open conversations and also get a legal interpretation on the same in a simplified mode that is easily understood.

Intercommunity dialogue forum6

(Participants during the Inter-community forum)

The inter community dialogue forums provided the space needed to start crucial conversations that discussed various issues. Key among them in both pate and Amu were the problems that will be caused or aggravated by LAPPSET project, Insecurity issues, land rights, drug abuse, low education levels, weak leadership and health. It also emerged that the importance of women representation in various committees that are formed by the communities to address issues they grapple with was mainly cosmic. The women had no voices in these crucial platforms. Something attributed to the choice of women and also culture.

It emerged that the importance of women representation in various committees that are formed by the communities to address issues they grapple with was mainly cosmic. The women had no voices in these crucial platforms. Something attributed to the choice of women and also culture.

Poverty emerged to be at the epicenter of all the problems that the community discussed.  The recent one was pegged to the survey process that was ongoing and how the locals were selling their land to other people who were not indigenous even in that process.

Certain myths about the effects of the LAPPSET project were demystified in the forum. It emerged that there is very limited understanding of the true picture of the Lamu port under the LAPPSET project. It was also keen to note that some of the older members of community are totally opposed to the project until historical injustices are addressed. However the younger ones were able to highlight some of the benefits that will flow to the community with the development of the port. The need for benefit sharing and public participation was also very strongly put across as a role the government needed to play for the community to embrace the port project.

On land the lack of titles is still a problem in Lamu. It also emerged that most land committees that were formed to fight for the locals to own land are the same that were giving land to immigrants. This was more so in Pate and Siu areas. The problem is so rife that the parliamentary committee on land had to intervene by coming to the ground but they are yet to give a report on their findings.

The issue of the curfew as relates to security was one that was deeply and strongly discussed. The participants were against the curfew as it has affected their source of livelihood which is fishing. The hours that they fish are mostly wee hours of the morning and in the night when the curfew is implemented. The curfew also affected their prayer times especially for the night prayers that begin at 8pm as per the Islamic religion. This was more felt by the mainland people whose curfew starts at 6:30pm.

The issue of drug abuse and trafficking was attributed to weak leadership and parenting too. The community said that the traffickers were well known but the leadership and the community is afraid to confront them. This has made the vice rampant.

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Newsletter Articles-August-Sept 2014

  1. Kituo Cha Sheria awarded by Law Society of Kenya

Kituo Cha Sheria was honoured a “Distinguished Service Award” by the Law Society of Kenya during its 21st Annual Conference held on August 2014. The award was a recognition of Kituo’s continued effort in ensuring “Access to Justice for all”. After receiving the award, Kituo cha Sheria Executive Director Gertrude Angote updated on her Facebook page, “A “Distinguished Service Award” Is indeed befitting and humbling. Thank you all Kenyans for promoting the dream towards “access to justice for all”.

  1. Australia Broadcasting Corporation (ABC) to produce a documentary on Kituo’s paralegal work

Australia Broadcasting Corporation (ABC) TV in partnership with Kituo cha Sheria are producing a documentary on kituo’s paralegal work in prisons and in communities. Sally Jane SARA and Craig Philip BERKMAN from ABC were at Kituo’s head office where they interviewed, AGCP Program Coordinator, Aimee Ongeso and paralegals from kituo’s justice centers as well as in prisons where Kituo has established Justice centres and paralegals over the years.

  1. Nairobi University Institute of Diplomacy and international studies students trained Refugee Law

Kituo Forced migration Program conducted a week long training on refugee law at Nairobi University, Institute of Diplomacy and international studies from 4-9th August 2014. The participants who had successfully completed the training on Refugee Law Program were awarded certificates. The training was a partnership between Kituo cha sheria-Forced Migration Program, UNHCR and Nairobi University,Institute of Diplomacy and international studies. The partners are planning to extend the training to other universities nationally.

  1. Kituo cha Sheria kicks off forums on Sexual Gender Based Violence (SGBV) in informal settlements in Nairobi.

Advocacy, Governance and Community Partnership programme (AGCP) has started forums on SGBV in Kibera and other informal settlements. The forums are aimed at empowering people living in informal settlements on gender based violence as well as coming up with way forward on how to deal with SGBV that is mainly rife in informal settlements. The areas of focus are those that were highly affected during the 2007/8 post-election violence. The group is also taking statements that will help them to form the basis of their petition or way forward in advancing their course.

  1. Kituo pays tribute to Odindo Opiata

Kituo was honoured to pay tribute our good friend and colleague, Odindo Opiata. He was a well-respected and well known Advocate of the High Court of Kenya and passionate about Social Economic and Cultural rights. He was passionate about his fellow man and devoted his life to the serving others especially the poor and marginalized. He was associated with KITUO since 1999 where he served with various eminent human rights defender.

  1. Kituo under project Kenya Tuna Uwezo conducts a series of training on land and devolution in Nairobi’s informal settlements

The ongoing trainings on land and devolution in various informal settlements such as Kibera, korogocho, Kamukunji, Majengo, Mukuru kwa Njenga, Dandora and Eastleigh have ignited fresh knowledge on land and devolution among the trainnes. In places where the training had already been conducted such as Eatleigh, Kibera and Korogocho, residents have come up with cases involving land which they want Kituo to do a follow up as they already know their role or in safeguarding either public or private public properties. Marcelino Waithaka of Kituo who has been a major trainer says that, “the training has already born fruits as residents are now more alert on their rights as they have presented to Kituo interests on cases of land grabbing and succession that Kituo has to assist them”.

  1. Kituo and its partners Celebrates the International Day of Peace

On 20th September, Kituo joined the world in celebrating the international day of peace at Eastleigh high School. From the speakers, dancers, singers and actors, the message was clear that; we all want peace. It was an important occasion where people from all walks of life gathered to observe the international day of peace as it was the case in other parts of the world. There were intriguing performances from dancers, rappers, actors and a football session where the message they were portraying is that we want peace and co-existence not only in Kenya but in the whole world. Indeed, we all have the right to peace.

Kituo Celebrates Katiba Day

Kituo cha Sheria joined the world in commemorating the Katiba Day on 27th August 2014. The event was aimed at celebrating the gains we have after 4 years of promulgating the constitution as well as strengthening the gaps in realization of devolution gains. The event was held at Kangemi on 27th August 2014.

The people of Kenya through a referendum adopted the new Constitutional order promulgated on the 27th August 2010 at Uhuru Park, Nairobi. The supreme law envisaged a new political, cultural and socio-economic era where the aspirations of the Kenyan people for a government that promotes the rule of law, respects human rights, equality and democracy as necessary tools for development.

In exercising this authority, every citizen and every person irrespective of tribe, race, religion, and status has an obligation in respecting the Constitution and actively participating in its implementation and enjoying the gains.

The question we grapple with is, if this has been the case and if not, how we can strengthen the grey areas as community and civil society actively engaged in the process of implementing the constitution and enjoying the gains.

The guests who included Kituo cha Sheria Executive Director, Gertrude Angote, Mercy Wambua from Law Society of Kenya, area chiefs and assistant county commissioner, acknowledged the fact that the period has not been all rosy. There has been ups and downs and there was need to sit together as Kenyans and see where we have failed and seek the necessary remedies.

Were keen to address the gains and the challenges we have faced in the period through which we have promulgated the constitution. There has been various emerging issues and concerns especially on the pending legislation on land and evictions and resettlements bills before the parliament.

For the four year’s period, the public have become more aware of their duties something that has increased interaction between policy makers and the public. The public have been equipped with knowledge on their participatory roles as well as oversight not only at the county level but also nationally.

In Defense of the Right to Truth- Gertrude Angote, Executive Director- Kituo Cha Sheria

Kenya must never forget the 28th of February, 2008. This day marked the signing of the National Peace Accord to end the 2007/2008 post -election violence. It was noted that this was a new chapter for the country, to begin the peace process. The establishment of the Truth, Justice and Reconciliation Commission was part of this package deal.

The Truth Justice and Reconciliation Act of 2008 (TJR Act) was enacted by parliament following the post -election violence and was aimed at addressing the gross human rights violations that had occurred from independence to the 2007/2008 electoral violence. It was envisaged that in addressing these violations, Kenya would promote peace, justice, national unity, healing and reconciliation.

It must not be forgotten that it took tremendous courage for victims to testify and give their narratives for the first time, to a truth commission.  Given the amount of time, tax-payer’s money and personal investment dedicated to this process, the TJRC report must be upheld and protected; implementation of the Commission’s recommendations should commence without further delay.

The Truth, Justice and Reconciliation Amendment Act of 2013 (TJR Amendment Act) seeks to undermine the work of the TJRC.  We call upon Kenyans to take note that The TJR Amendment Act gives power to parliament to alter the recommendations of the TJRC report.

Prior to the amendment, it was envisaged that the implementation process of the TJRC report would be done in accordance with the recommendations of the Commission. In the TJR Amendment Act, the implementation of the TJRC report will be done in accordance with recommendation of the National Assembly, upon ‘consideration’ of the report by the National Assembly. The TJR Amendment Act affects the very provisions on the implementation of the recommendations. In consequence, the TJR-Amendment Act amounts to an amendment of the report itself.

That the National Assembly will alter the TJRC report under its consideration seems very likely. The MPs’ ignored the provision by the Justice and Legal Affairs Committee prohibiting any amendments to the TJRC report.  It goes without saying that the country will witness the expunging of names recommended for prosecution to protect those in power or allies of those in power, the editing of certain sections to suit the interests of those incriminated,  a distortion of the narratives of victims and finally a watered down, politically correct document. This will be a blatant and outright violation of the right to truth.

Article 35 of the constitution provides for the right to information. All citizens are endowed with this right. In the wordings of Article 35 (1) (a), (b) and (3), the state and any person holding information has an obligation to publish and publicise it. Whether for the exercise or protection of a right or fundamental freedom, or by fact that such information affects the nation.

Article 19 of the constitution provides that rights, including the right to information and inferred from that, the right to truth, belong to each individual. Thus these rights are not granted by the State, but rather accrue to all human beings.

Further, Article 19 (3) (b) provides that the rights and fundamental freedoms do not exclude other rights. And if there are such rights recognized or conferred by law, their applicability is welcome. The right to truth recognized internationally and applicable in Kenya vide Article 2 (5) of the Constitution – which shall be detailed herein below- is such a right.

National values and principles of governance as enshrined in Article 10 bind all State Officers, organs, public officers and all persons. The National Assembly is one such organ and/or person(s) bound by these values and principles whenever it – Article 10 (1) (b) – ‘enacts, applies or interprets any law.’  The values and principles include but not limited to, (2); the rule of law, democracy, human rights, transparency, and good governance.

The National Assembly is bound to act within the Constitution and other provisions of the law. The findings of the Commission have to be held – by state organs and any persons – within the national values and principles of governance. This is the only way that people can access their right to information. True information.

According the TJR Act, one of the objectives of the Commission is to promote peace, justice, national unity, healing and reconciliation. The Commission must inter alia; establish an accurate, complete and historical record of human rights and economic violations and abuses.

The establishment of truth commissions all over the globe and their objective and mandates to enhance democratic developments with regard to reconciliation and the rule of law in the aftermath of conflict and massive human rights abuses indicate that the right to truth is an internationally accepted principle. The legal acts forming the basis for truth commissions, like the TJR Act, ground themselves on the individual component of victims’ needs and right to know about the context of their suffering and a collective component, recognizing the need of the society as a whole to understand the roots and causes of violence that had taken place in their midst in order to facilitate the reconciliation process, to contribute to the fight against impunity and to reinstall and strengthen democracy and the rule of law. The same applies to the TJR Act.

According to the constitution, human rights embodied in the Bill of Rights are an integral part of Kenya´s democratic state and the purpose of protecting human rights is to preserve the dignity of individuals as well as communities (Art.19 (1)(2)). Furthermore, according to Art. 48, the state shall ensure access to justice for all persons and Art.10 provides that the rule of law, democracy and participation, human dignity and human rights, transparency and accountability are national values and principles of governance, binding all state organs. The internationally emphasised right to truth is derived from all these principles.  In acknowledging the foregoing principles and rights in its constitution and in its TJR-Act, Kenyan state organs are bound by the right to truth.

In conclusion, the spirit of the TJR Act and the Constitution embrace the right to truth for victims of human rights violations in Kenya and thus it indicates that Kenya adheres to an internationally accepted right to truth in the context of transitional justice mechanisms – especially truth commission.

An argument alleged by members of the National Assembly was that persons implicated in the TJRC report were not appropriately heard before the commission. According to the TJRC report, all individuals who had been found responsible, were given an adequate opportunity to respond. The findings against individuals and groups were made on the basis of the balance of probabilities standard of proof. Given that the implication of a potential perpetrator does not equal a verdict of guilt, delivered by a criminal court, the standard of proof might be lower with regard to truth commission reports which follow a different purpose concerning the truth. The rights of the implicated persons were therefore not violated since they had the opportunity to be heard before the commission and/or to submit documents. Consequently, this argument does not justify an amendment of the TJRC report.

In conclusion the TJR Amendment Act violates the right to truth under the Kenyan Constitution and international law.

Manage your expectations: IDPs told

At every dawn, Mr. Stephen wakes up and wonders whether his life will be the same as it was prior the 2007 ENP. Although he has tried to bury the hatchet and call it a past tense, the fateful events keeps on unfolding in his mind. generally, this is the same life that majority of IDPs have been living with since then hoping that one day, someone will come from heaven for help; they have been living with superficial expectations.

It is a shocking realization that IDPs are still existing in country hitherto. This was evident during the IPDs leaders training last at Ngong Hills Hotel. Before then, I used to think that all IDPs were resettled. However, we still have IDPs in Rift Valley, Western, Nyanza and Coastal region. Most of them have gone into a state of desperation as they live in deplorable conditions.

The high expectations that they have holding for years has contributed to their misery. They are hoping that when justice is ultimately realized, one day, they will regain their houses, their relatives and properties that got lost. It is in this light that Kituo saw it important to inform them that it is important to manage their expectations. During the training, Verena, a trainer with giz did not hold back while informing them that it is important if they learn to manage their expectations and move forward. ICC nor any court in Kenya will put food on their table.

Notably, majority of the IPDs have failed to progress due to various promises given to them every day by people, organizations and even the government that they will be compensated. In fact, some go a step higher to exploit them or benefit by misusing them. This has been a worrying trend that has kept them dependent on a “helping hand.” Politicians have also been misusing the youth among the IDPs communities turning them into beggars. In this regard, the leaders were told empower and encourage the youth to take advantage of county governments and funds available to start income generating activities.

During the training, the IDP leaders were informed that even if the ICC cases that are much looked at turns out positive and justice is availed, it does not mean that they will regain the status they had before. Therefore, it is important for them to learn to move on with their life.

The IPD leaders were taught how to distinguish between their needs, interests and position. In fact, Jodom Mwebi from Kituo did not mince his words as he told them that some people claim that they want justice while in real sense they mean food, clothing and other basic needs. Thus, even if they want justice served, they should first find ways to meet their basic needs.

The IDPs leaders were also asked to encourage their people to take advantage Trust fund, Ability, loans, grants from the government and other organizations and initiate development activities as groups. Moreover, they were told to take advantage of county government budgetary allocations and present their needs at that level where they are likely to get funding. This will play a vital role in ending the dependency syndrome among them.

The training also acted as a platform where leaders shared their experiences and success among their communities. For instance, in his area, Mr Gregory has successfully started self-help groups that are doing great. On the contrary, some expressed their frustration in the way their groups were folding up while they were just flourishing. Therefore, they had to learn some tactics of how to manage such groups such as ensuring that there is no personal ownership of a group, money should not be kept by an individual in his house among others. With this, majority of them were satisfied that they were ready to go and change how things were among their people; they will be able to handle the matters of their people in a more advanced manner.

{By RCD}

FMP Police Consultative Forum

KITUO Forced Migration Programme (FMP) held a Police Consultative Forum on 20th March 2014 to discuss the question of refugee protection vis a vis the question of national security and how to reach a balance between the two. The event was held at Nomad Hotel in Eastleigh. The event was graced by various police heads; OCSs and OCPDs from Central, Kamkunji, Comfortable, Harvest, Shauri Moyo and Industrial Area. The Member of Parliament for Kamukunji, Yusuf Hassan was also present.
Speaking during the event, She. Yusuf Hassan expressed his concern over the increased state of insecurity and urged the police heads to work to see that the situation is addressed especially within Eastleigh. He acknowledged the fact East Leigh is one of the terrorist hotspot that had been on the limelight for breading terrorism in the country. However, he was quick to state that not all refugees of Somali refugees are linked with terrorism. Citing countries such as Ethiopia that has a large number of Somali refugees but has few instances of terrorism, he argued those present that something need to be done in addressing the question of insecurity. He questioned the legality of some refugees who are allowed to come into the city from the camps without being able to sustain themselves economically because they end up being used to terrorize people.
Linet Opiyo from UNHCR, addressed the issue of refugee protection within Nairobi and its environs. She expressed her fear over the government’s closure of the registration programme of refugees. She pointed out that documentation of refugees had been an issue that has not been addressed. This is because refugees have different registration documents having diverse format something that makes the work of police more complicated because they do not know which document to check and which one is valid.

Summary of Oscar Pistorious Judgement of 12th Sept, 14

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Oscar Pistorius has been found guilty of culpable homicide – equivalent to manslaughter in British law – for killing Reeva Steenkamp. The ruling was based on the judge’s finding that he used excessive force and was negligent in firing through the door. Crucially, the judge believed Pistorius’s claim that he believed he was under attack from an intruder.

The culpable homicide charge carries a maximum sentence of 15 years but no minimum sentence.

Judge Thokosile Masipa granted Pistorius bail, despite the state barrister arguing that he posed a flight risk now that he knew it was likely he would face a custodial sentence and had sold his house.

Pistorius was found not guilty of two of three firearms charges he faced, one of firing a pistol through the sunroof of a moving car, which carried a maximum five-year sentence, and the other for the possession of ammunition, which carried a maximum 15 year sentence.

He was found guilty of one of the three firearms charges, recklessly firing a gun in public at Tasha’s Bistro in Cape Town. That charge could also carry up to five years.

The International Paralympic Committee issued a statement saying that Pistorius had “done a great deal for the Paralympic movement” and would be allowed to compete again.

South Africa’s National Prosecuting Authority said it was “disappointed” with the verdict: “We respect the court decision to convict the accused on culpable homicide, which is in fact a serious crime. We are, however, disappointed that we were not successful in securing a conviction on the original charge of premeditated murder.”

Pistorius’s friend Darren Fresco, who was involved in two of the firearms incidents, had his immunity from prosecution upheld.

 

 

Engaging pro-bono lawyers and peer legal counselors for expanding access to justice

Story by Newtactics.org

Kituo Cha Sheria (Legal Advice Centre) in Kenya created a new model of access to justice when in addition to legal aid, took the approach of legal empowerment. It provides legal education to marginalized communities and to inmates in prisons through a model of Community and Prison Justice Centres to empower them to understand and advocate for their own rights. Within prisons, the legal education training is designed for inmates of all genders who face barriers in understanding their legal rights and protections, and to build their own self-sufficiency. The participating incarcerated individuals learn and pass on this knowledge to as many other inmates as possible.  As a result, Kituo Cha Sheria has spread to a group of over 6,500 trained inmates who have brought over 3,600 successful appeals resulting in releases, reduction of sentencing periods, re-trials and acquittals. Since 2012, Kituo Cha Sheria has been able to bring about 41 death row acquittals and 77 acquittals for individuals sentenced to life.

Prison Paralegals

When issues of poverty, marginalization, and vulnerability affect people’s rights to access justice, Kituo Cha Sheria steps in. Established in 1973 as a small group of legal professionals, Kituo Cha Sheria recognizes that legal services are still greatly needed in a country where the current ratio of legal practitioners to the population is 1: 5000.

Kituo Cha Sheria’s legal professionals provide pro-bono (free) legal aid and promote these services through volunteerism as a core value of its work. In Kituo Cha Sheria’s prison program, they engage pro-bono prison paralegals, staff members and volunteer advocates to train and help prisoners sort through their own cases. The inmates themselves then work to promote the rapid growth and spread of knowledge and empowerment to other inmates. This method is much quicker than waiting for only legal professionals to provide services.

The volunteer advocates are registered with Kituo Cha Sheria through a structure of volunteers who offer litigation services on a pro-bono basis for Kituo’s clientele. Rather than outright recruitment, willing advocates approach Kituo Cha Sheria to offer their services. They are required to fill in a volunteer advocates form including their name, law firm where they work, physical address, contact information and the specific legal field in which they would volunteer.  Following the training aid from legal professionals, the inmates themselves then work to promote the rapid growth and spread of legal knowledge and empowerment to other inmates.

Currently, Kituo Cha Sheria has established three Prison Justice Centres, available at the Kamiti Maximum Security Prison in Nairobi, the Shimo La Tewa Men’s Prison and Shimo La Tewa Women’s Prison in Mombasa. Kituo Cha Sheria expands the program to additional prisons as interest and resources allow.

Kituo Cha Sheria accepts people into their program only if they have expressed a strong interest in the program and have shown willingness to share what they learn with others. By taking on the most interested and willing, Kituo cha Sheria creates a streamlined system that allows them to reach as many individuals as possible. Prison staff are also a beneficiary of this program. Volunteer advocates don’t provide structured lessons, which would require more rigid scheduling and consume more time. Rather they provide:

  • Paralegal training including critical documents such as the Kenyan Constitution, parliamentary legislations, publications on criminal procedures, criminal justice systems, and evidence
  • Competitions to solicit opinions of inmates through essay writing
  • Practice through moot courts and debating – for advocacy on improving the criminal justice systems including topical issues such as death sentencing, interpretation of life sentences and its constitutionality, sentencing policies, bail/bond rules and guidelines, and addressing disparities to bring about uniformity and consistency in punishing and/or deterring crime
  • Assistance in understanding legal processes and the evidence against them including how to draft their appeals and how to represent themselves in court
  • Basic supplies such as stationery, computers and printers.

While it may appear basic to some, many of the poorest citizens have little understanding of critical documents, drafting legal documents, court procedures, self-representation, or the impact they can make during their incarceration.  After receiving professional guidance, prisoners feel confident enough to train fellow inmates, review their own cases to advocate in their own defense.

For example, in one case, Kituo Cha Sheria worked with several men on death row for a robbery that had ended in an accidental death. With the help of Kituo Cha Sheria, they were able to appeal their sentence. One of the men helped over 200 other inmates appeal their own cases and continues to do this work since his release from prison. And men are not the only ones benefitting. Thairu, a woman from Nairobi was falsely imprisoned for a violent crime, but remained in prison due to her inability to navigate the legal system. During her time in Langata Prison she was able to receive aid from Kituo Cha Sheria and has learned enough to appeal her own case and help educate others. Such inmates serve as tremendous role models. They are not able represent others, as they are not qualified lawyers, but they can provide legal education guidance.

The method utilized by Kituo Cha Sheria is much quicker than waiting for only legal professionals to provide services. And when lawyers are in short supply, Kituo Cha Sheria has a vast network of paralegals able to provide services even in rural areas, through their seven Community Justice Centres (one in Eastern Kenya; three in Nairobi; one in Nyanza; and two in the Coastal region). These paralegals do not represent clients in court, but offer legal advice and conduct trainings in their localities on legal and governance issues. These paralegals are readily accessible to their communities, they understand issues within their localities better, and are a cost effective way of accessing justice.

Kituo cha Sheria empowers individuals through building awareness of their rights and spreading legal education, so that all people will be able to access justice, enjoy and advocate for their own and their community’s rights effectively.

 

Proposed Law to Allow Cops to deny suspects bail is Unconstitutional

The proposed insertion – Section 123 A(1)(a) – provides that “court may decline to grant bail where the court or a police officer has a reason to believe” that a person may, if released on bail; fail to surrender to custody, or commit an offence, or obstruct the course of justice, or interfere with witnesses.

The danger and loophole capable of abuse in this amendment lies with the court denying a person bail on a police officer’s “reasons to believe” – without any judicial contestation between the state and a suspect. In this amendment, a police officer has the discretion to decide: the relevant circumstances; nature or seriousness of an offence; character, antecedents, associations and community ties of an arrested; arrested’s previous conduct under bail; and the strength of evidence against an arrested person that would warrant a continued confinement.

In essence, the courts have the discretion to either make a decision to grant or deny bail upon; (i) both the state and an accused having made their say in court; or (ii) where a police officer has his/her say in court without a suspect/an arrested making his/her say. The latter is unconstitutional. Through this proposal, the State will deny a suspect liberty – a gross violation of rights as liberty belongs to every individual and cannot be granted by the State.

The constitutional provision under Article 49(1)(h) is premised on a rebuttable presumption of the law engraved in Article 50(2), that one is presumed innocent until the contrary is proved. It is along this presumption that the Criminal Procedure Code provides for causing the appearance of an arrested before court, reasonably. For arrests without a warrant, other than the exceptions of offences under bail, within 24 hours. The OCS or the Court may instead of taking bail, release a person on bond or without bond if he/she lacks sufficient evidence to proceed with charges.

In the contrary a <em>Habeas Corpus </em>application can be made to the High Court, to compel the police to produce the arrested before a court of law. Further confinement of a suspect without pressing charges could literary mean imprisonment. Curtailing a fundamental right enshrined in Article 25(d) of the Constitution. A right that may not be limited.
<h3><strong>Who should decide to deny bail, the police or the court? </strong></h3>
Section 123 of the Criminal Procedure Code, has the effect that the court should make the decision to deny bail. It provides that whether a person is detained by an OCS without a warrant or is before court, that person may be admitted to bail.

The fact that a suspect, if denied bail at the police station can make an application for bail in court, reaffirms this.

Continued detention of an arrested/suspect without bail is unlawful and amounts to an infringement of the person’s right to liberty. In as much liberty is not an absolute right, the onus lies on the state to prove to the court to the latter’s satisfaction, that the “compelling reasons” fronted can warrant the limitation of this right. This is irrespective if one is a suspect of murder, treason, robbery with violence, attempted robbery with violence and any related offence.

When in such cases courts hold that “He who alleges must prove”, common sense and precedence would dictate that the arresting officer’s allegations, of compelling reasons against grant of bail, must be subjected to proof. Proof is not to the police, but to a third party – the court. Most important, the one to whom the allegations are levelled against must have his say – in a court of law. This sums justice on a balance of scales.

The National Assembly and the police, as state organs must address themselves to Article 21 of the Constitution. It dictates that the state and all state organs are enjoined to observe, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. The right not to be detained without trial, as a freedom and security of the person is not an exception.

International Law

In the wake of the Constitution 2010, Kenya vide Article 2(5) and (6) is bound by International Law. On 1 May 1972, Kenya ratified the International Covenant on Civil and Political Rights. Article 9 of the treaty protects the right to liberty and security of a person. It dictates that anyone arrested on a criminal charge should be brought promptly to a judge to exercise judicial power and is entitled to trial within a reasonable period or to release.

The treaty also gives recourse to anyone deprived of liberty by arrest or detention. He/she is entitled to take proceedings before court, for the court to decide without delay on the lawfulness of the detention and order a release if the detention is unlawful.

Articles 3 and 9 of the Universal Declaration of Human Rights further protect the liberty of a person, including the right not to be subjected to arbitrary detention.

Closer to home is the African Charter on Human and People’s Rights, in which Article 7 makes reference to the rebuttable presumption of the innocence of an individual until a competent court or tribunal proves otherwise.

Continued detention without trial of a suspect/an arrested person, solely on a police officer’s reasons to believe, without contestation by a suspect on the right to bail is unwarranted. It denies an individual the right to have his/her case heard. This particular proposed amendment to the Criminal Procedure Code must be strongly rejected by the National Assembly. It is retrogressive. It goes against the will of Kenyans when they adopted a Constitution that protects the liberty of a person. Against the backdrop of a security force that has been known to misuse their powers to detain without trial, giving powers to the police to determine if a suspect should be granted bail or not opens the door to gross human rights violations.

Susan Success Story

Susan Kavesa worked for a certain family as a house help here in Nairobi. During the March 2013 elections, she requested permission to go upcountry so that she could exercise her democratic right by voting. After a few days, she returned only to be informed that she had been fired. They were not even sorry for her condition that they had not given earlier notice. However, with some knowledge of her rights as a worker; she notified the employer that she was supposed to have been given a one month notice before termination. However, this was just taken lightheartedly by her boss.

BONE

Susan Kavesa (Client) and Boniface Muinde (kituo)
She was advised by friends to go to the Kenya union of domestic, hotels, Educational institutions and hospital workers where she was supposed to pay a Kshs 100 registration and an equal amount every month as a membership fee. The union did for her demand letters that were taken to her former employer. However, he did not respond nor answer their demands. As the law requires, further action was supposed to be taken when the employer declined to respond to the demand letter but the union referred her to Kituo cha Sheria.
Boniface of Kituo took over her case and filed new demand letters negotiating an additional of Kshs 100,000 more than what the union had negotiated. This was within the law as the employer was supposed to remit NSSF, NHIF and failure to give notice for the employee.
A week later, his employer came to Kituo offices and was now willing to negotiate for the amount that he owed Susan.
Susan expresses her gratitude to Kituo for assistance accorded as she has now been able to pay her debts for the period that she was unemployed as well as buy one and a half acre piece of land for her children.