Legal Opinion on the Law against Police Torture in Kenya

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Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

No express black letter law exists on torture in Kenya as a law passed by Parliament. Our leaders whisper in dark corners of the evils of the past yet legislation on the abuses is as much the same as when they were being perpetrated. Our redeemer can only be found in Article 25 of the Constitution. The following is an overview of the legislation against torture perpetrated by police.

Legal Analysis

The Constitution of Kenya guarantees the Bill Of Rights in Chapter Four for every individual. These freedoms are not granted by the state but are inalienable by virtue of being a human being.

Article 25(a) of the Constitution provides for the freedom from torture and cruel, inhuman or degrading treatment or punishment being unlimited and guaranteed by the constitution.

The Constitution of Kenya guarantees its citizens’ protection by creating National Security Organs in Chapter fourteen of the Constitution. Among these organs is the National Police Service created in pursuance to Article 243 of the Constitution.

Article 4 of the United Nations Convention against Torture states:-

  • Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
  • Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

The African Charter on Human and Peoples’ Rights provides in Article 5 that, every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

There are no penal provisions against a torture perpetrator in Kenya. The closest penal provision is causing grievous harm contrary to Section 34 of the Penal Code. The mental aspect of torture is yet to be investigated and coded in law in Kenya.

Despite these constitutional provisions, several government agencies frustrate the enjoyment of these rights. Top among them is the National Police Service established under Article 243 of the constitution.

The objects and functions of the National Police Service are to:-

  1. strive for the highest standards of professionalism and discipline among its members;
  2. prevent corruption and promote and practice transparency and accountability;
  3. comply with constitutional standards of human rights and fundamental freedoms;
  4. train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and
  5. foster and promote relationships with the broader society.

Despite this clear constitutional mandate the police have been in the forerun to exercise acts of torture.

Some of the documented reports include:-

Prison Commandant boss sued over torture of five inmates Maureen Odiwuor, Standard Digital News, Kisumu, 7 March 2014 www.standardmedia.co.ke/thecounties/article/2000106290/prison-commandant-boss-sued-over-torture-of-five-inmates [accessed 17 March 2014]

Kenya police accused of abuse, torture, rape of Somali refugees after terror attacks Tom Odula, The Associated Press AP, Nairobi, 29 May 2013 www.foxnews.com/world/2013/05/29/kenya-police-accused-abuse-torture-rape-somali-refugees-after-terror-attacks/ [accessed 21 March 2014]

The state of the world’s human rights Amnesty International AI, Annual Report 2013 www.amnesty.org/en/region/kenya/report-2013 [accessed 26 Jan 2014]

Human Rights Reports » 2005 Country Reports on Human Rights Practices U.S. Dept of State Bureau of Democracy, Human Rights, and Labor, March 8, 2006 www.state.gov/g/drl/rls/hrrpt/2005/61575.htm [accessed 16 February 2011]

Freedom House Country Report  Political Rights: 4   Civil Liberties: 3   Status: Partly Free 2009 Edition www.freedomhouse.org/report/freedom-world/2009/kenya [accessed 26 June 2012]

Kenyan Police Accused of Torture, Arbitrary Arrests in Eastleigh http://www.voanews.com/content/human-rights-watch-charges-kenya-with-torture-arbitrary-arrests-of-somalis/1670519.html reported by Mohammed Yusuf on May 29, 2013 9:44 AM.

Kenya Police fire tear gas at children protesting over playground  http://www.aljazeera.com/news/africa/2015/01/kenyan-police-tear-gas-protesting-children-201511913521303110.html accessed 9/3/2015 2 : 45 pm

These are among the many media reports showing gross violation by the police on the right against torture. Very little is often done in respect of disciplining the rogue police officers instigating torture especially when the police officers are responding to ongoing threats such as terror or demonstrations. It is as if at these points of chaos no order should exist except that which is dictated by the bearer of a gun. If such rationale is to be advanced then law on protection of civilians during war would be nonexistent.

The reverse is however true. The right against torture cannot be limited or bent to achieve any aim. There is no justification for it hence any act of the same should be taken with utmost diligence to ensure it never occurs again.

In fact the police spokesman Mr. Masoud Mwinyi has been quoted admitting there will always be complaints against police and the way they execute their work.  Mwinyi said some police officers may have overstepped regulations when dealing with security matters. “We also acknowledge once in a while we might have some incidents of some officers getting excited or going out of their mandate,” he said.

Such talk when brought out so casually raises doubt over the genuine concern in achieving discipline in the force. Officers don’t get excited. They break the law! They rape, maim and kill people. Torture cannot be justified. Justification signifies failure and failure creates anxiety. An anxious force eager to please its superiors will instigate all forms of human rights violation. It is the predicament we as a country face whenever we have an imminent threat.

Avenues for redress

The National Police Service Commission

The constitution foresaw such gross violations as has been promoted by the police force since independence and included the National Police Service Commission. The commission is charged with the responsibility of exercising disciplinary control in the service. So far the commission has vetted 196 police officers but there are no records over how many it has dismissed on disciplinary grounds.

The Independent Policing Oversight Authority

This institution is created by Act No. 35 of 2011. It provides provide for a civilian oversight of the work of the Police. The objectives of the Authority are to:-

  1. hold the Police accountable to the public in the performance of their functions;
  2. give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and
  3. ensure independent oversight of the handling of complaints by the Service.

The authority has neither prosecutorial power nor disciplinary power hence only investigative authority ridding it of any autonomy. It relies on the police to arrest fellow policemen accused of gross violations of human rights and other crimes while the police relies on the office of the Director of Public Prosecutions to commence proceedings against the accused. The circle of bureaucracy if not properly effected frustrates justice and ensures such crimes are not brought to book.

The Kenya National Human Rights and Equality Commission

This is a body established under Article 248(a) of the constitution. It promotes enjoyment of all fundamental human rights investigating on alleged breaches and reporting on the complaints to the necessary bodies.  Every person has the right to complain to the Commission, alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Conclusion

The right against torture is yet to be fully realized in Kenya. Threats to this freedom are still being justified by the government including the passage of the new Security laws. For instance Section 49 of the Security Amendment Act 2014 provides for limitation of the number of refugees. Such limitation when effected results in automatic torture of any refugee found within the borders. Kenyan police tortured and abused more than 1,000 refugees, asylum seekers and Somali Kenyans in Nairobi in a “10-week rampage” beginning in late 2012 in Eastleigh. This action was taken from a police directive, juxtapose if such a law was to take effect.

All is not gloomy as a bill called The Persons Deprived of Liberty Bill, 2014 is in parliament awaiting debate. The bill will protect against any elements of mental torture by ensuring remandees and prisoners are guaranteed their freedom.

Recommendation

Parliament should pass a law on prohibition from torture to cure the gap created in realization of this right. The law as it is still leaves a lot of room for interpretation by the police and any other citizen on what amounts to torture. International obligation to adopt a statute for the achievement of this right under the United Nations Convention against Torture is yet to be achieved.

Reparation for victims should be provided for in a prohibition from torture bill. As noted from the prosecution of former Chicago Police Commander Jon Burge, police torture survivors continue to suffer from the psychological effects of the torture they endured without any compensation or assistance; most have no legal recourse for any redress.  They cannot sue for any financial compensation because the statute of limitations has expired on their claims of torture or trespass to person.  Their family members also continue to bear the wounds of decades lost away from their loved ones.

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JUSTICE 2015- GOAL 16 UPDATE

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By Stacey Cram

Over the last two years more than 300 organizations in the Global Legal Empowerment Network have campaigned for justice targets to be included in the new Sustainable Development Goals (SDGs). Their advocacy has been at both the international and the national level, with high-level political meetings, OpEds, open letters, campaign days and media events pushing the case for justice in the future of the development framework.

Network members and campaigners have identified five measurable priorities:access to legal services; access to information; participation in the delivery of basic services; legal identity; and rights to land and property.

The campaign has borne fruit. Repeatedly, drafts of the planned SDGs have included targets for justice and one specific goal, Goal 16, which recognises the need to ‘promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’.

Yet targets for justice and the rule of raw were dropped from the Millennium Development Goals at the last stages of the negotiations, and the case for justice in the new SDGs still needs to be made. With this in mind, members of the legal empowerment network undertook to show how the actual implementation of Goal 16’s targets would look at the national level – which is where the attention will shift following the SDG declaration in September 2015.

The Global Legal Empowerment Network and Namati have supported major National Justice 2015 meetings in three countries – Kenya, Jordan and The Philippines. Together they illustrate different approaches to making the justice targets a reality in contrasting political and legal contexts. While there are initial promising outcomes, much more support will be required to ensure this success translates into long term sustained action.

This briefing paper: Emerging Trends in National Implementation of SDG Goal 16 and Justice Targets, is being presented to UN delegates today, June 25 2015, at a side-event to the UN negotiations in New York entitled: Building the Sustainable Development Agenda into National Planning and Review Mechanisms.

Civil society justice organizations can learn from these three meetings how to begin the process of implementing the justice targets in the SDGs – and ensuring they have a voice in the level ambition that their governments undertake to achieve.

Most significantly of all, the three countries, Kenya, Jordan and The Philippines illustrate how the presence of Goal 16 in draft form has already prompted government, civil society and others to come together to grasp a generational opportunity to deliver justice for all.

National Justice 2015 Case Studies

Kenya – Integrating Goal 16 into existing legislation and reprioritizing the legislative agenda

Organized in partnership with the legal empowerment and access to justice NGO, Kituo cha Sheria, the International Commission of Jurists Kenya and the Law Society of Kenya, the National Justice 2015 meeting had an ambitious agenda. It was looking create an action plan for improved national justice that would cover: access to legal services; access to information; legal participation in the delivery of basic services; legal identity; rights to land and property; and the role of justice and legal empowerment in increasing security in Kenya. This meeting took place in the aftermath of the attacks in Garissa and within Kenya there was a renewed interest for how justice sector reforms could increase security. Those who attended the meeting were keen to ensure that the attacks did not allow for kneejerk policies to be passed which would hinder the rights of citizens and their ability to access justice. As Goal 16 covers justice, peace and security, it provided the necessary framework to discuss these issues in tandem.

Over the course of two days the Kenyan Parliamentary Human Rights Association,  representatives from the Attorney General’s Office and the Kenya National Human Rights Commission listened to and discussed at length justice issues being faced in Kenya.

Initially, civil society had proposed a new, standalone, Justice Plan to incorporate the SDG justice targets and existing National Justice Priorities. Government stressed such a policy could take several years and suggested instead that civil society and government work together on existing legislation that could be revised and passed quickly. The National Human Rights Policy and Action Planwas agreed as the obvious legislation to tackle. This Policy has been in draft form since 2008, and participants saw the opportunity to use the momentum of the SDGs to bring this policy to the top of the legislative agenda.

The passing of this legislation would push forward related including: the Legal Aid Bill; Right To Information Bill; and Community Land Bill.

In addition, the National Human Rights Policy already has many relevant national indicators to track progress – however they only included data gathered by the National Statistics office. Civil society argued that perception and third party data should be included. The Human Rights Commission agreed.

In the short period since the meeting the National Legal Aid Bill has moved into the next stage of law making, and is set to be finalized before the end of this sitting of parliament.

Philippines – Integrating Goal 16 into the new Philippine Development Plan through participatory policy making

Organized in partnership with the Alternative Law Group (ALG), an umbrella organization of legal empowerment organizations, in collaboration with the National Anti-Poverty Council (NAPC), this one day meeting brought together over 60 participants from across all regions of the Philippines to discuss how Goal 16 can be integrated into the planning and formulation of the next Philippine Development Plan (PDP) 2016-2022. Alongside civil society, the NAPC, the National Economic and Development Agency (NEDA), The Philippine Statistics Authority, members of the Judiciary and the Attorney General were present, as were representatives from what are known in the Philippines as the 14 ‘basic sectors’ who represent the needs of groups in the Philippines (including for example, women, children, indigenous people, etc.)

Participants agreed that there is currently a ‘justice deficiency’ in the Philippines and that the forthcoming PDP must contain a new justice section with integrated SDG goals and targets integrated. The government and civil society agreed to work in partnership to develop this section with both sides stressing this must happen prior to the presidential elections next year to ensure timely national implementation of the SDGs. To begin this process, countrywide consultations with citizens will be held and a structure for consultations produced by July 2015.

Including justice in the PDP will also ensure that justice is recognized as an essential tool for inclusive growth and development. This reframing of justice will allow for additional funding for the justice sector including through increased national budget allocation and from international donors.

Jordan – A new Arab approach: government and civil society use Goal 16 to begin a dialogue on advancing justice across the region

With the support of HRH Prince El Hassan bin Talal and the West Asian and North African Institute the National Justice 2015 Meeting brought together government, civil society, multilateral agencies, academia and regional participants from Palestine and Lebanon. This meeting represented the first of its kind in Jordan in bringing together these stakeholders to have honest and open dialogue on justice and SDG Implementation. Goal 16 provided the rationale for kicking off these discussions with the hope being that this is the first of several dialogues between different stakeholders that will drive forward justice within Jordan and across the Arab region.

Participants recognized that the SDGs represent an opportunity to reposition justice in West Asian and North African states. HRH called on States to develop authentic solutions that take into account a balanced strengthening of justice sector institutions at the governmental and non-governmental levels. The areas that were of most interest and discussed in depth included: inclusive growth; stability and good governance; 
 security and countering violent extremism. 
Following the meeting a research agenda has been developed to look specifically at how a regional approach to implementation of the SDGS can tackle these three areas.

In Jordan, the meeting began the dialogue on using the SDGs to assist the adoption of national legal aid. It also highlighted that even in contexts where justice and legal empowerment are at an early stage of development, the SDGs and Goal 16 shift the discourse and have justice viewed as a nationally owned priority, not an imposition placed on to the region.

Emerging Trends

  • Goal 16 as opportunity: the MDG experience demonstrated that internationally agreed goals translate into focused attention. From these pilots we have seen how Goal 16 has provided context to push forward justice issues at a national level. Civil society in Jordan highlighted that being able to speak frankly on the rule of law and justice in a public forum, with senior government representatives, for the first time.
  • Bridging the Gap between New York and Capital
s: in all three countries basic knowledge of the SDGs is still low. Participants stressed the need for basic SDG literacy and welcomed the knowledge shared in these meetings. They also stressed the need to ensure that the agenda does not become a ‘club for the few’.
  • National Leadership: implementing the SDGs necessitates political will, leadership and long term planning. In Kenya and the Philippines this leadership came from civil society who found champions within government to collaborate with, while in Jordan a more top down approach used HRHs Prince Hassan’s standing and commitment to legal empowerment to drive forward the agenda.
  • National Ownership: all stressed the need to align the SDGs with existing processes and policy formulations. This may mean taking a staggered approach to implementation rather than sector-wide implementation.
  • Partnership and Participation: Attendance included representatives from across the different arms of government, the judiciary, national lawmakers, civil society, academia, bureaucrats, statisticians, private sector, religious leaders and Royals. Being able to brand the SDGs as a shared agenda has proven incredibly useful in framing why these stakeholders must work in partnership to drive forward justice.
  • Relevant National Indicators and Data: Better and more integrated data is needed to allow for better planning and policy making across the justice sector. Real and existing challenges still remain for setting national indicators and tracking the data – a skills transfer from other governments and data experts will often be necessary.
  • Funding and Technical Transfer: Central to all of these meetings was concerns around funding. Funding, capacity building, technology and technical transfers will serve as important carrots for driving forward justice for all. National governments need to ensure sufficient budgets are allocated to justice.
  • Regional Approaches: Each meeting stressed the importance of region-wide implementation. This would serve cross-border security issues and well as helping sustain regional economic growth.

Conclusion

The National Justice 2015 meetings highlighted the appetite and ambition that exists within government and civil society to move forward on justice and legal empowerment. The SDGs are a generational moment that organizations and government departments working on justice and legal empowerment must capitalize on, to support their advocacy efforts and where possible to forge partnerships between civil society and government in policy formation, implementation and accountability.

Read the full briefing paper: Emerging Trends in National Implementation of SDG Goal 16 and Justice Targets

 

Al-Bashir: what the law says about South Africa’s duties

The Constitutional Court sits for a hearing of African National Congress (ANC) President Jacob Zuma's application in Johannesburg March 11, 2008. Zuma launched a final bid in South Africa's highest court on Tuesday to prevent some evidence being used against him in a corruption case that could stop him becoming president.  REUTERS/Siphiwe Sibeko (SOUTH AFRICA) - RTR1Y5GS

The Constitutional Court sits for a hearing of African National Congress (ANC) President Jacob Zuma’s application in Johannesburg March 11, 2008. Zuma launched a final bid in South Africa’s highest court on Tuesday to prevent some evidence being used against him in a corruption case that could stop him becoming president. REUTERS/Siphiwe Sibeko (SOUTH AFRICA) – RTR1Y5GS

BY JOHN PAUL ONGESO

The South African government displayed an indefensible derogation of its international and domestic legal obligations when it failed to arrest Sudanese President Omar al-Bashir during the African Union summit in Johannesburg and ignored a High Court order prohibiting his departure. The move has rightly sparked an outcry.

The International Criminal Court (ICC) issued warrants of arrest for al-Bashir in 2009 and 2010 following his indictment for crimes against humanity and genocide committed in Darfur, Sudan, between 2003 and 2005.

How did South Africa’s obligations arise and why is the government’s failure to meet them so disheartening?

South Africa’s obligations

Two factors form the basis of South Africa’s obligation to arrest al-Bashir. The first is the country’s accession to the Rome Statute of the ICC on November 27, 2000. This made it a state party to the court.

In terms of Article 86 of the statute, state parties are duty bound to “co-operate fully with the court in its investigation and prosecution of crimes within the jurisdiction of the court”. To facilitate the ICC’s prosecution, the government was obliged to arrest al-Bashir as soon as he landed in South Africa.

The second is that in 2002, the South African parliament passed the Implementation of the Rome Statute of the International Criminal Court Act 27. This law domesticated the ICC Statute in line with the country’s constitution. The constitution states that “[a]n international agreement binds the Republic only after it has been approved by resolution” in both houses of parliament.

Section 8 of the act states that the director-general of the Department of Justice and Constitutional Development must, on receipt of a warrant of arrest, forward it to a magistrate to have it endorsed and executed in any part of South Africa.

The government’s failure to forward the warrants of arrest for endorsement and execution was a violation of both the 2002 law and the constitution, which regarded the law as binding on the republic.

The government’s failure to arrest al-Bashir flies in the face of the South African Constitutional Court’s reiteration in 2014 that South Africa has a duty to abide by its international obligations. The court ruled that the observance of this duty is of particular importance international obligations. This required the state to ensure that those accused of committing serious international crimes are brought to justice. The constitutional court ruling was unanimous. Judge Majiedt said:

Our country’s international and domestic law commitments must be honoured. We cannot be seen to be tolerant of impunity … We must take up our rightful place in the community of nations with its concomitant obligations. We dare not be a safe haven for those who commit crimes against humanity.

Obligations not taken seriously

The legal challenge in South Africa was preceded by a statement issued by the ICC on June 13. Judge Cuno Tarfusser of the ICC Pre-Trial Chamber held that there was:

… no ambiguity or uncertainty with respect to the obligation of the Republic of South Africa to immediately arrest and surrender Omar al-Bashir to the court.

A day later the Southern African Litigation Centre brought an urgent application to the North Gauteng High Court to compel the government to arrest al-Bashir.

The court ordered that the Sudanese president be prohibited from leaving the country pending the application’s conclusion. Nevertheless, on June 15, al-Bashir left South Africa for Sudan.

Notwithstanding the clarity of its obligations and the efforts by the ICC prosecutor and the Southern African Litigation Centre to have al-Bashir arrested, the South African government’s reaction was lethargic at best and defiant at worst.

The only rational explanation of its failure to arrest al-Bashir is that it does not take its obligations seriously. This suggests it has joined ranks with other African governments that have vowed not to co-operate with the ICC. This is disheartening.

The arrest of al-Bashir would have been a huge opportunity for the promotion of international criminal justice and the rule of law in Sudan. Instead, the South African government has chosen to adhere to the view in the African Union that the ICC should be discredited. This is argued on the basis that the court has pursued selective justice because it has so far targeted only African perpetrators in its pursuit of international criminal justice.

There is substance in this claim. But this is not a justifiable basis on which to renege on international obligations. The South African government’s decision is one of political expediency, preferring to be cajoled by the political rhetoric surrounding the fledgling ICC rather than abide by international law.

Disclaimer: This article was originally published in The Conversation

A People Like You and Me

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‘The first step of being a refugee is accepting who you are…’ these were the words of one Pierre at the Refugee Business Forum held on 17th June, 2015 at The University of Nairobi.

The World Refugee Day was passed by the UN General Assembly through resolution 55/76 in 2001 as a commemoration of the 1951 convention relating to the status of refugees. Historically speaking the world has had refugees since the World War 1. The refugee situation has spread throughout the world in the past years. The UN refugee agency reported on World Refugee Day 2014 that the number of refugees, asylum-seekers and internally displaced people has for the first time in the post-World War II era exceeded 50 million people.

The legal framework for refugees is the 1951 convention relating to the status of refugees; The 1967 Protocol relating to the Status of Refugees; The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. In Kenya more specifically we have the Refugee Act, 2006 as the law governing the well being of refugees.

A refugee is defined in Article 1 of the UN convention as a person owing to a well founded fear of being persecuted for reasons of religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable owing to such fear or unwilling to avail himself to the protection of that country. This is the same definition given under the Refugee Act of Kenya.

Refugees just like citizens of their country of asylum are bound by the law in that country. For example refugees in Kenya are bound by Kenyan laws. However they are not able to enjoy all the rights that are founded in those laws. An example is where refugees in Kenya cannot enjoy voting rights. However the threshold is that they get to enjoy the basic rights such as education and health.

In Kenya refugees are managed by the Department of Refugee Affairs (DRA) and the United Nations High commissioner for Refugees (UNHCR). Once an asylum seeker gets into Kenya they have up to 30 days to report to DRA for registration and documentation. They are then presented to UNHCR for further documentation. After registration one gets the decision from their refugee status determination interview (RSD) after at least 90 days. After this decision they have at least 30 days to appeal to the refugee appeals board. They have a further option of appealing further if they are unhappy with the judgment to the High Court in 21 days.

It is important to note that once a person undergoes an RSD interview then they get the chance of being granted refugee status hence being recognized as a refugee. Refugees have identification documentation which includes a mandate; a refugee certificate; asylum seeker pass; DRA recognition letter amongst others.

It is important to note that there are two categories of refugees. These are camp based refugees and urban refugees. Camp based refugees solely rely on donor support and only have ration cards as their documentation. Currently in Kenya there are two camps i.e.  Dadaab and Kakuma. It is important to note that the Kenyan legal policy now is that all refugees are to be camp-based as per judicial decisions like the recent security laws amendment act decision. On the other hand urban based refugees solely depend on themselves. However they have documentation that enables them to stay in urban areas. There are exemptions as to why refugees sometimes are allowed in to the urban areas. Some of these reasons are because of health or education related issues. For one to leave the camp they have to be issued movement passes that are valid for a certain period of time.

It is also important to acknowledge the contribution that refugees bring to our country. Refugees run their own enterprises while some have even employed Kenyans. Kenya’s economy should take advantage and replicate policies from countries like the USA on fully utilizing the refugee contribution in our country.

Finally it is important to note that indeed refugees are people like you and me. Bottom line is that we are all human beings.

By:-

Julie K. Matoke

Advocacy Department

Forced Migration Department

ENFORCING THE RIGHTS OF THE STREET CHILD

 “…in serving the best interests of children, we serve the best interests of all humanity.”

-Carol Bellamy.

 

A child as the Age of Majority Act (Cap. 33 of the Laws of Kenya, Section 2) defines a minor as a person below the age of 18 years. A street child is a term for homeless children who live alone or with families on the streets of a town or city.

In a study commissioned by the Consortium of Street Children (CSC) it was estimated in 2007 that there were 250,000-300,000 children living and working on the streets across Kenya with, with more than 60,000 of them in Nairobi.

The infringement and violation of the Rights of a street child is immediate. The street child unlike others in marginalized groups is most susceptible to most if not all the vices the dark side of the human population has to offer. Being children, with insufficient mental, physical, psychological or emotional maturity to fight these vices, very few get to enjoy the protection of the Bill of Rights in the Constitution.

The child is protected by the Bill of Rights in the Constitution as well as other laws that put the importance of a child’s interest as paramount. Internationally, in 2014 the UN Committee on the Rights of the Child (UNCRC) decided to develop a General Comment on street children. The General Comment on street children was first proposed by the UN General Assembly over two decades ago and is set to be published in 2017. The General Comment on street children will serve to facilitate by improving the implementation of rights as well as helping individual governments meet their mandate in ensuring the rights of the children are safeguarded. With the excess of estimated 100 million street children in the world and an estimate half a million in Kenya, laws to safeguard the rights of the street child are direly needed.

RIGHTS 

Street Children should generally enjoy all the rights as enjoyed by other citizens such as the highest attainable standard of health, food, water, shelter, primary consideration of the interest of the child, freedom from all forms of violence, the right to be heard, protection from cruel or degrading forms of treatment among others. The main hindrance to them accessing and enjoying these rights lies in enforcement.

The general perception of the street children especially in Kenya by the various communities that they live in is that of a people lost in despondency and hopelessness. Sometimes if not all the time they are perceived as an eyesore to the general population  and often they are beaten and harassed for real or imagined misdemeanors. Their glue sniffing habits coupled with always outstretched hands begging in the street and rugged appearance causes many people to shun rather than help them.

Most rights of the child especially the right to education, food, shelter, clothing, health, legal services among others require money. Although there are a few organizations and individuals that cater to a small extent for these, the need is far much bigger than the provisions. Most are only able to feed for a meal and they are left to fend off for themselves. It is to be noted that unlike other internationally recognized and marked days, the International Day for Street Children on 12th April went largely unnoticed and unmarked in the country. It shows the extent of neglect that the issue of the street child attracts.

The street child must hence make ends meet. While the older children can sometimes fend for themselves through more honest means such as hawking, cart-pulling, touting and doing manual jobs; the society mostly frowns on the idea of employing them. Further hawking requires licences which the children cannot afford. They thus resort to illegal hawking which often lands them on the wrong side of the law and in extreme cases injured or killed in efforts to evade the law. Most engage in illegal trades such as drugs, alcohol brewing and selling, and crime. The girls and sometimes boys find themselves at the mercy of sexual predators and often in the worst form of child labour, as sex workers. It is not surprising that they are a big target for child traffickers.

The young street children are on the other hand, and in total disregard of any right that they have, left at street corners and along busy streets in Nairobi and other urban centers for days on end to beg from the public. It is common sight for children as young as 3 years in street corners notwithstanding harsh weather elements with hands outstretched.

CHILD LABOUR

 

Kenya has ratified most international conventions that concern child labour. The Government has also established relevant laws concerning child labour. The Employment Act (Cap. 226) provides that a person under 16 years of age is a child for the purpose of being engaged in gainful employment in any industrial undertaking.

The society and the government has turned a blind eye in regards to street children and labour regardless of there being in place laws preventing child labor, the Bill of Rights and other laws that provide for the Rights of the Child. Street children find themselves in the worst forms of child labour including but not limited to sex workers, chang’aa and other illicit brew brewers and are often trafficked.

JUVENILE DELIQUENCY

The circumstances which street children find themselves in is a perfect breeding ground for juvenile delinquency. Unlicensed hawking, illicit alcohol brewing, soliciting, criminal activities drug peddling and general misdemeanors are some of the crimes street children engage in.

The Government in conjunction with the society should come up with ways that would teach these kids how to survive lawfully thus avoid juvenile centers. The 2015 National budget did allocate 300 million under a street families vote head and I hope some fund will be allocated to initiatives geared towards this.

When incarcerated children are committed to centers such as the borstal institutions, juvenile remand centers etc. For most street children it’s different; most face police and city-askaris (kanju) brutality, physical and sexual abuse and rarely have their day in court to plead their case. There is need to enforce existing laws to protect children and come up with laws geared towards protection of rights for all members of the society. Juvenile centers should be essential for rehabilitation not necessarily detention centers. The government should ensure that a child’s right to education is furthered in these institutions. Of importance is the treatment of juvenile while in the centers as this determines how they will live in the society after juvenile detention. Are the centers correcting their criminal ways and giving them a new lease to life or otherwise?

CONCLUSION

Helplessness induces hopelessness and hopelessness is the main cause of war. The world of a street child is a constant battle zone. Fighting hunger, predators, weather elements, the law and other things is their constant war. They sniff glue and other drugs to evade momentarily the harshness of the reality, a reality that the society chooses not to see. They fight a losing battle for their Rights. To them the Bill of Rights is just words on a paper. It is upon the Government and society to make sure their rights is also protected.

Mankind owes to the child the best it can give.

 

By:-

Bridah N. Kimathi

World Torture Day; Access to Justice for Torture Victims

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Ezekiel Njenga, Coordinator Kamukunji Community Justice Center (second left) and paralegals planning for the World Torture Day

Torture does not necessarily mean inflicting pain on someone physically as many believe; it is any kind of pain inflicted on someone either physically or mentally.
Every year, we are given the opportunity to stand united and remind the world that torture is a cruel violation of human rights. The World Torture Day is a day set aside by United Nations in Support of Victims of Torture on 26 June. The day serves as a reminder to people that torture is a crime.

Ezekiel Ouma Njenga is the paralegal coordinator of Kamukunji Community based justice center. This center is run and managed by paralegals and offers legal aid services and education to the wider Kamukunji community under the supervision of Kituo cha Sheria.

To date, the center has offered legal aid services to 1500 clients. It has offered close to five free legal aid services in Pumwani, one in Eastleigh and another one in Mukuru Wa Njenga. What Ezekiel has noticed over 5 years he has been serving the Kamukunji community is that torture cases are on the rise. He gives the example of Mr. Juma who had a case in Makadara Court with a policeman from Shauri Moyo police station and was later allegedly killed by the same policeman three days before his next hearing early May this year. Justice has not yet been served. The mother, Mrs. Juma is afraid for her life too as she will be appearing in court.
According to Ezekiel this is not an isolated case. The center is aware of many other cases similar to that of Mr. Juma.

It is against this backdrop that the Kamukunji Community Justice Centre, under the leadership of Ezekiel decided to mark this year’s World Torture Day on the 26th of June with the main objective of creating awareness on the rights of torture victims in Kamukunji, more specifically, the right to rehabilitation.

It is hoped that through this event, the people of Kamukunji will access assured equal legal and social justice; commemorate World Torture Day; network and collaborate with potential partners and associates. At the end of the event it is the Kamukunji communities’ expectation that the State and non-state actors promote access to legal and human rights response.

We caught up with Ezekiel and team planning for the day ahead and this is what he had to say;
Question: In your view, what is Torture?
Torture isn’t necessarily inflicting pain physically on someone but it also means the mental pain. Someone might not undergo physical torture but mental torture which is worse as it is psychological disturbance.

Question: Who are the key guests?
Our Chief Guest will be from The Dutch Embassy to be invited by Kituo Cha Sheria and we also expect to invite a number of torture victims to share their past experiences. We are targeting over 1000 participants, clients and partners to join us in spearheading justice for victims of torture and those who suffered at the hands of courts during one party dictatorship as political prisoners and detainees in Kenya prisons, detention camp, remand prisons and police cells in Kenya.

Question: In what way do you think this day is helpful for torture victims?
The day is helpful as it provides a platform through which everyone unites and voice their opinions against human torture. The day will also provide free legal aid which will be very helpful. The community will also network with Human Rights Organizations present on that day.

Question: Why did you choose to mark this day at the Kamukunji Historical Grounds?
We chose Kamukunji grounds because we believe that Kamukunji Community have undergone torture and torture issues are on the rise in Kamukunji as we get different torture cases every day. This day will address issues of torture and many people in Kamukunji will participate as the venue is strategic. It is the grounds upon which democracy was fought for under the Moi regime. The day will create platform for the tortured victims to share their experience and familiarize themselves with the Community Justice Centre in Kamukunji.

Question: Is the public invited?
The public is invited as they are part of the targeted group and the invite will be done through posters and also writing invitation letters to their Ward Representatives.

Question: What activities will take place?
During the event, the following activities will be carried out;
• Soccer tournament
• Free legal aid and education clinic
• Seven aside girls soccer tournament

KNOW YOUR LAND RIGHTS

LAND RIGHTS BOOKLET COVER2

LAND RIGHTS

KNOW YOUR LAND RIGHTS

The promulgation of the Kenyan Constitution 2010 brought into place concerns about the urgency for land reform. Land reforms hold the key to solving some of Kenya’s greatest challenges such as landlessness, community cohesion, food security and sustainable development. Land reforms lie at the heart of the work of the National Land Commission (NLC) and Kituo cha Sheria and they are also at the heart of many Kenyan communities who live, work and rely on land.

This informed this collaboration between our two organizations to put together a collection of important information which goes a long way in educating these communities about their land rights.

The mission of the National Land Commission is to get Kenyans enjoying the benefits of land reform and better land governance; help Kenyans realize tenure security, so that everyone can reach their full potential in accessing, using and owning land.

Kituo’s mission is to promote and protect land rights through legal aid, legal empowerment, legal education, advocating for the implementation of the land laws and strategic litigation.

The land rights advocacy platforms offered by Kituo Cha Sheria in our community based Justice Centers from helped identify the knowledge gap on land rights across Kenya. Parts focusing on land adjudication, succession and Frequently Asked Questions were part of Kenyans’ request to be enlightened on land rights. We present a comprehensive publication which we hope goes a long way in filling a gap that Kenyans feel exists and may you be enlightened and #KnowYourLandRights!

Download HERE >>> http://kituochasheria.or.ke/gallery/publications/english-publications/

Gertrude Angote- Kituo cha Sheria

Dr. Fibian Lukalo- The National Land Commission.

Bramwel Baraza exhilarates as he receives his Dues

paulKituo Cha Sheria (KITUO) has been in the fore front in ensuring justice is accorded to all. One core thematic areas of KITUO’s mandate is labour. Bramwel Baraza Livoi has all the reasons to smile after KITUO’s intervention in his predicament. He got his dues of about 1 Million Kenya Shillings.

About his case;
Bramwel Baraza Livoi was engaged by SEURECA consulting engineers, an international engineering company to supervise Lavington-Riruta sewerage project, the project clients were Athi water services. After signing the contract, he raised an invoice which was not honored without any explanation. He worked diligently without any pay, when he went to claim his dues he realized he had been adopted by Xenocon, a local consulting engineering company that had entered into a joint venture with SEURECA without his consent. Later on he got a letter from SEURECA consulting engineers directing him to deal now directly with Xenocon, a company he had not signed any contract with and did not understand the level of engagement.

His encounter with Kituo Cha Sheria;
After several unfruitful attempts to get his dues, Livoi decided to seek legal assistance. He approached Law Society of Kenya (LSK) who directed him to Kituo Cha Sheria. He came to Kituo Cha Sheria towards the end of February 2015 where he met a KITUO lawyer and arbitrator, Paul Elkington. After narrating the whole ordeal, Paul Elkington decided to take up the matter and wrote a demand letter to SEURECA consulting engineers where Bramwel Baraza had signed his contract demanding the pay and failure to which the matter proceeds to court to ensure justice is granted.
SEURECA consulting engineers engaged Iseme,Kamau & Maema advocates who responded to Kituo Cha Sheria and agreed to settle the matter out of court as per article 159 of the Constitution of Kenya that provides for Alternative Dispute Resolution (ADR) mechanism. SEURECA consulting engineers through Iseme,Kamau & Maema advocates agreed to pay Bramwel Baraza Livoi his dues as agreed in the signed contract.
It was all smiles and reprieve for Livoi as he receives his cheque of Ksh. 1,050,000 from Paul Elkington who relentlessly got into constant but thorough negotiations with Iseme,Kamau & Maema advocates to ensure justice was done.