The dawning of a new age through Alternative Dispute Resolution

adr

The Chief Justice has in the past caused a stir by requesting the public to resolve disputes through village elders and witchdoctors instead of rushing to the courts. The remarks as reported are not entirely true but nonetheless they did stir up something surprisingly enlightening for me. On 18th January 2016, during an admission ceremony for new advocates at the Supreme Court building in Nairobi, the Chief Justice, his lordship Hon. Dr. Willy Mutunga, clarified that the earlier statement was only made to implore litigants to first attempt other forms of legal dispute resolution before approaching the courts. Certainly, dispute resolution touches on the very fabric of our society. Dispute is as old as man. The human society is marred with conflict and the Kenyan one is no exemption. In my assessment, this is as a result of our biological intuition to interact. Conflict in this context therefore relates to disputes arising out of normal interaction with others in our surroundings. In an attempt to resolve conflict, various methods have been used in the past to the present. From sitting under a tree in a baraza where the elders’ word was law, to the current institutionalized dispute resolution agencies. It is amazing and commendable how far and fast we have come as a nation in such a short period.

The Judiciary is no doubt an important pillar to a democratic society. If our society was an automotive petrol powered engine then the Judiciary can only be best described as the oil that lubricates the engine. Without it, the engine may run but it will eventually fail. We have witnessed this in our past and dread it. Nevertheless, such lessons must be eternally remembered lest our forgetful nature overcomes our fear.

The Judiciary’s importance is often undermined mostly only until one finds that a judge’s hammer or the courts’ seal are their only salvation. Yet this in no way suggests that such importance is not sort by a considerable number in the society. On the contrary, the current Judiciary case backlog tells a different tale. The Judiciary, through the National Case Audit and Institutional Capacity Survey launched on 20th February 2015 has defined backlog as cases not concluded within 12 months. The bar has undoubtedly been set high. Yet it is not lost to us that we have plenty of disputes piling up in our Court system. The Judiciary estimated the backlog at 420,000 as of 2014 meaning that it would take the High Court 12.5 years, the magistrates’ courts 2.4 years and the Kadhi’s courts 1.9 years – all working in synchrony, to clear this backlog. Unfortunately, the case numbers may have increased since then in as much as there has been recruitment at the Judiciary for more judges and magistrates. As worrying as this may sound, the solution to easing up the case backlog in our courts has already been crafted.

Kenyans in their multitudes received the Constitution in the year 2010 marking a new age in the upholding of rule of law and effective administration of justice. Article 159 of the Constitution provides that judicial authority vests with the people. This power is to be exercised following certain principles. The principles include justice shall be done to all, justice shall not be delayed and in so doing, embracing alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution(ADR) mechanisms. There lays the silver bullet.

ADR in Kenya has evolved within a very short time. In formal dispute resolution, Arbitration has more recognition including statute, but nevertheless the other forms of dispute resolution have been used and continue to be used effectively in resolving disputes. Despite this, very few in our society can claim to know the difference between mediation and arbitration and even fewer, the benefits of one compared to the other.

In a nutshell, mediation can be described as a process where parties to a dispute attempt to resolve a dispute aided by an impartial mediator. Mediation may be formal or informal. Arbitration in contrast is structured formally; here parties present their cases before an independent arbitrator of their choice. The arbitrator is tasked with making a decision to resolve the dispute. The final decision is referred to as an award and is binding upon the parties. In this setting, efficiency is a priority and disputes are as a result resolved faster than they would have taken in the courts.

Comparisons with other Jurisdictions portray that our justice system is on the right direction in embracing ADR as a form of dispute resolution mechanism. The European Commission recently conducted a Public Consultation on Directive 2008/52/EC from 18th September to 11th December 2015. Directive 2008/52/EC is a cross border civil and commercial mediation directive that provides guidelines for adopting Mediation as the first recourse for dispute resolution among the EU countries excluding Denmark. At the EU level, the directive is voluntary and parties can opt not to include mediation as their first attempt at resolving a dispute before resulting to the courts or arbitration. Surprisingly, its effectiveness is worrying as only one percent of the cases in the EU have opted for mediation despite it being adopted five and a half years ago. It is not all sad for Mediation at the EU level as its efficiency is not in doubt. The average number of days in a mediation at European level is 43 days whereas the average number of days in court proceedings is 566 days. Compared to the Kenyan proposed structure of a maximum of 60 days under the recently gazetted Mediation Pilot Project Rules 2015, we are not doing badly especially noting that we have around 11 cases filed between 1960 and 1970 still in our courts. The cost factor is also an important consideration in embracing ADR. At the EU level, it is estimated that should mediation systematically precede any trial in civil disputes, annual cost savings could be between €15 billion and €40 billion. It is not surprising that the EU therefore want Mediation to be a mandatory step in dispute resolution and have made proposals to that effect.

At the East Africa level, mediation was introduced as a compulsory level for civil disputes in Tanzania as at 2001 while in Uganda in the year 2004. Back home, despite lagging behind, I am glad we have taken up these lessons and continue to adapt to the current trends in effective administration of Justice. It is time the Kenyan populace embraced ADR as part of their normal relationship guidelines. Whether in corporate commercial agreements or normal everyday laymen contracts, it is important to include an ADR clause to escape the cunning antics of lawyers in their best arena, the Court room. ADR offers a smile on everyone’s face. For the public, an effective and harmonious dispute resolution mechanism is now achievable. Justice should never be delayed. For the lawyer, a shorter and certain period to assist our clients and of course a predictable period to claim fees is desirable. For the judge and magistrate, cases that will later be settled by consent of parties which now unnecessarily increase the workload will significantly decrease. Lastly for the nation, a new mindset in amicable and peaceful resolution of disputes could go a long way in how we relate after a dispute and perhaps extend to how governance is perceived. An example by Rwanda in the use of the Gacaca courts should serve as a guide on how peaceful and amicable alternative dispute resolution can heal a nation. Perhaps then, we can all get along.

By Kimani Rucuiya, ACIArb

The author is an Advocate and a member of the Chartered Institute of Arbitrators-Kenya Branch.

Kituo cha Sheria Expresses Disapproval of the Government’s Decision to Close down refugee camps and the Department of Refugee Affairs

Kituo cha Sheria Expresses Disapproval of the Government’s Decision to Close down refugee camps and the Department of Refugee Affairs.

Following the communication by the Ministry of Interior and Coordination of National Government on May, 6th 2016, to close down the Dadaab and Kakuma refugee camps and the Department of Refugee Affairs and to repatriate refugees back to their country, Kituo cha Sheria considers this decision as both misguided and poorly timed. The decision appears emotive, ultra vires and without justification in light of the ongoing refugee crisis involving persons of concern in the East and Horn of Africa.

Taking into account Kenya’s national and international (legal and Constitutional) obligations, Kituo cha Sheria finds it intolerable and lacking in compassion that the Government can decide to expose these people of concern and their families to misery and as a result leave them without protection in clear breach of; the Refugee Act 2006, the Constitution of Kenya, the Universal Declaration of Human Rights (1948), the 1951 Geneva Convention, the 1967 Protocol and the 1969 OAU Convention Governing the specific aspects of refugee problems in Africa etc.

For close to 25 years, Kenya has been hosting refugees of different nationalities from across the African region and is home to one of the biggest refugee camps in the world and currently hosts close to 600,000 persons of concern both in the camps and urban areas. Thus, sudden closure on Friday, May, 6, 2016, by the government, citing economic, security and environmental concerns, contravenes even the most recent 2013 tripartite agreement between the Government of Kenya, the federal republic of Somalia and the United Nations High Commissioner for Refugees governing the voluntary repatriation of Somali refugees as well as the Convention and International treaties that Kenya is party to.

Surprisingly, it is a closure that comes at the height of ongoing efforts to voluntarily repatriate Somali refugees to areas identified as safe for return including Mogadishu, Kisimayo, Baidoa, Loop, Jowhar, Afgoye, Balaad, Beledhawa. In fact, the Agreement is under implementation since December, 2014, where a total of 15,000 refugees have been repatriated back to Somalia.

The question is, what informs the government’s decision to renege on the terms of the agreement, considering that it committed to preserve and protect the asylum space and respect the principle of ‘voluntary return’ and  knowing very well that Somalia is not conducive for mass return of refugees.

In summary, we would say, the government has a case to answer to the people of Kenya and the International community as it appears to be in breach of the law and to violate the law, the Constitution and International laws.

Section 6 of the Refugee Act, 2006 establishes the Department of Refugee Affairs (DRA). Logically speaking then, can the Department be disbanded by a mere circular, memo and/or letter from a Permanent Secretary. Does disbanding the department therefore repeal the Act willy-nilly!

The principle of non-refoulement requires that no refugee should be returned to any country where they are likely to face persecution or torture. Therefore, does the government’s closure mean that we are retracting from S. 18 of the Refugee Act, the Kenya Constitution, Geneva Convention, the Protocol, the Universal Declaration of Human Rights, the OAU Convention, the 2013 Tripartite agreement etc. Does this mean that Kenya no longer cares about the law?

Kituo cha Sheria fully recognizes and respects the government’s duty of ensuring national security, rule of law and order on the one hand; but on the other hand recognizes the balance that ought to be struck in all circumstances where the fundamental rights of individuals are likely to be infringed when actions are taken. It is for this reason that Kituo cha Sheria now pleads with the Government of Kenya to carefully rethink its decision; on compassionate grounds by accepting the reality that asylum seekers, refugees, returnees, stateless persons, and IDPs are all persons of concern and that their rights and security should be respected, preserved and protected in all aspects.

By:

Gertrude Angote.

Executive Director-Kituo Cha Sheria

 

Can the sexual assault of children be Compartmentalized: An introspective analysis of the ruling in Martin Charo V. R No. 32 of 2015.

“In order to escape accountability for his crimes, the perpetrator does everything in his power to promote forgetting. If secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure no one listens.”
― Judith Lewis HermanTrauma and Recovery

Can a child give consent to have sex?

In Kenya the age of consent is 18 years. Accordingly, the Children’s Act defines a child as one below the age of 18 years. This means that in our jurisdiction we recognize a child as a person who has not attained the age of 18 years ergo cannot comprehend the full nature and consequences of sex.

Thus such a child cannot have capacity to consent to any form of sexual relations. However, the recent judgment held in appeal Martin Charo V R No. 32 OF 2015 there seems to be a departure from this train of thought as established by the law.

The court acquitted the appellant. At summary, the appellant defiled a 13 year old girl. He KNEW she was thirteen. She in no way misrepresented herself TO BE ABOVE THE AGE OF MAJORITY BEING 18.  This is proven by his actions. According to the judgment, the appellant lied to the child’s brother of her whereabouts when he went to his premises to look for her. The appellant went further to raise alarm, so as to forcefully eject the victim’s brothers from his premises.

Shockingly, the court puts emphasis on the fact that the child willfully took herself to the appellants house therefore she consented. However Kenyan courts have held repeatedly as precedent that it is immaterial whether the victim consented to the act or not. Over and  above, the Sexual Offences act section 20 expressly disallows consent of a minor as a defense in such a scenario.  Children are unable to  fully appreciate the nature of a sexual act, so naturally they are incapable of consent. This holds true the world over. The judgment however puts the victim at trial and not the appellant.

According to the initial ruling, the prosecution proved as they ought to, that the appellant intentionally and unlawfully caused penetration of his genital organ into the genital organ of the girl aged 13 years.  Consequently convicting the appellant and sentencing him to 20 years in prison. All this was by the book and the court applied the law to the letter. That much was not in dispute.

The child behaved like an adult

The court on the appeal went ahead to state in the judgment that;

“… It is clear to me that although PW1 was a young lady aged 14 years; she was behaving like a full grown up woman who was already engaging and enjoying sex with men. “

This statement alone shows the deteriorating state of affairs of our society. The question here should not be the pristine nature of the child; rather we should interrogate our implementation system when it comes to defilement as emphasized in the 160 girls ruling. What the court admitted and also implied in the ruling of Martin Charo Vs. R, is that there are pedophiles, casually and repeatedly engaging in sexual relations with minors with absolutely no dread of the law and that some of these pedophiles may actually be let scot free by virtue of the supposed behavior of the child victim.

Further, the court went ahead to protect such repeat offenders from the law.  The Sexual Offences Act 2007 in the interest of justice and fairness provides misrepresentation as to age by the victim as a defense. If the child conducted herself as an adult who fully comprehends what she is doing neither her nor the appellant would have felt the need to hide her from her siblings. The Sexual Offences Act unambiguously rejects in toto consent as a defense in defilement matters. As a society we should not condone the willingness of any adult person, who has capacity, to engage in any sexual relations with a child regardless of the disposition and willingness of the child who knows no better.

The child is to blame? Shaming the child.

However, at this juncture it is important to ask the question of what is willing behavior in a child’s conduct in such a scenario? What is the measure used to dispose of one behavior as non –willing and another as such? The court has inadvertently opened Pandora’s box because one can never be completely sure of another’s intentions let alone a child’s especially in a sexual environment. The litmus test of right or wrong when dealing with children in such a sexual circumstance is on the onus of the adult! Never the child!

More so, the Protection Against Domestic Violence Act 2015, which includes defilement in the definition of violence allows anyone, not just the victim to report the matter to the police. We should make sure that we have created for the victim an environment conducive to reporting and trying of defilement. However, don’t such rulings act as a determent in the first place? Why would a child report sexual assault by an adult knowing full well that she/he may be victim shamed and no justice applied to the perpetrator of the offence?

We should consistently train our public officers and sensitize them on how to handle CHILD victims. Children should be treated as such. The test of who is a child is not and has never been their behavior but rather the age of majority.

Lastly, we should endeavor to set up more rehabilitation centers and other government institutions specifically geared towards child sexual assault victims that adequately address the physical, psychological and emotional treatment of the survivor to ensure that no general health repercussions extend into their adult life. We should ensure that as a society and a state we are nurturing healthy and wholesome citizens more so children as envisioned in our national values and national goals as contained in Vision 2030 and National Health Sector Strategic Plan II. Retrogressive thinking will only get us so far.

By

Wangari Karige and Samantha Oswago

LAED-Kituo Cha Sheria

Local Politics of International Justice in Kenya: How the ICC let the case slip away (Part I)

ICC-Kenya-CaseIn the wake of the International Criminal Court’s (ICC) decision to drop charges against the Deputy President of Kenya, William Ruto, and a radio host, Joshua arap Sang, we must re-examine the process of their initial indictment and trial. While we believe that Ruto and Sang (as well as the initial co-accused, including the sitting president Uhuru Kenyatta) should have faced a full trial to determine their role in the 2007/2008 Post-Election Violence (PEV), in two Blog posts [http://ohrh.law.ox.ac.uk/local-politics-of-international-justice-in-kenya-how-the-icc-let-the-case-slip-away-part-1/] the authors would like to reiterate arguments that the process was flawed for two main reasons.

First, the indictments were short-sighted in their consideration of alliance politics in Kenya, which worked against the process and ultimately contributed to the unwinding of the case. The ICC cannot consider its justice removed from local politics. Second, to be addressed in Part II, is that the process seemed to neglect the desire for justice on the part of victims. While justice for alleged perpetrators of crimes is a valiant goal, it should neither come at the expense of victims’ safety, nor should it neglect their claims for compensation and resettlement.

One of the main outcomes of the Court’s indictments was the creation of the Jubilee Alliance between the main co-accused: Uhuru Kenyatta and William Ruto. While they were accused for crimes committed on opposing sides of the PEV, they decided that the best way to survive the indictments was to band together. As Gabrielle Lynch explains in The Alliance of the Accused, Uhuru and Ruto constructed a narrative that the ICC was broadly targeting Africa in a fashion that was reminiscent of colonialism. More specifically, they argued that the Court had chosen to single out their respective Kikuyu and Kalenjin communities while leaving other ethnic groups, like opposition leader Raila Odinga’s Luo community, untouched. Thus the process rallied support, sympathy and anger against the ICC process amongst two of the largest communities in Kenya. Uhuru and Ruto’s alliance and their counterintuitive narrative of the injustice of the ICC process led them to a narrow electoral victory in 2013. As President and Deputy President, it is alleged that Uhuru and Ruto were able to frustrate the proceedings and avoid a full trial by a means of coordinated witness intimidation as well as use of resources and power of the state to withhold crucial evidence.

It seems, perhaps, unfair to criticize the Court for failing to predict Kenya’s complex alliance system. Kenya’s parties change weekly in the lead-up to elections, and alliances are constantly shifting. Thus, at the time of the indictments, the prosecution could not have foreseen that this would happen and thus could not choose their indictments based on such a hunch. If anything, the prosecution team looked to show some consideration for local context. For example, in recognition of the power-sharing agreement that came about after the PEV, the ICC only indicted deputies of the two 2007 presidential candidates (Raila Odinga and Mwai Kibaki) potentially to preserve the delicate security situation.

There was little the ICC did to adapt to these changes in the inevitably hostile political context. A criminal trial system, with its innate rigidity, cannot and does not operate in a vacuum. Whereas the system may not seamlessly move to the rhythm of different political contexts, it should certainly be guided in its implementation by the realities of local power politics. As Sarah Nouwen and Wouter Werner argue, the ICC tends to portray politics as external to the law even if the Court’s fight against impunity is also a direct struggle against local politics. But the Court cannot turn a blind eye to the fact that it is a part of, if not the epicenter, of politics. This attitude, as the Kenyan case demonstrates, can greatly derail justice.

Additionally, the failure by the ICC to address the inherent weakness of its witness protection mechanism also provided fertile ground for the abovementioned local politics to undermine victims of human rights abuses’ quest for justice. But what exactly is justice for these victims? The formal criminal justice involved in the ICC process understandably cannot address all the needs of victims. However, little to no action has been taken to pursue their other needs and demands, such as healing, reconciliation, compensation and guarantees of non-repetition, an impasse that will be the topic of the upcoming second part of this blog.

By:

Aimee Ongeso – AGCP Kituo Cha Sheria

Alex Dyzenhaus – British Institute in Eastern Africa

Reblog-This Blog post first appeared on the Oxford Human Rights Hub Blog.