How Safe Are Human Rights Lawyers In Kenya?

FLW

KITUO CHA SHERIA is deeply concerned about the disappearance and the unknown whereabouts of Mr. Kimani Advocate, a Kenyan professional entitled to protection whilst on duty. It remains a mystery that, four days after his disappearance, there has been no sighting of him; there is no information of where he might be or what might have happened to him!

As a legal aid, human rights organization with lawyers representing clients against government authorities, including the police, KITUO is deeply concerned about the welfare of lawyers who toil each day to help their clients, mostly the poor to access justice.

This follows the media reports that whilst travelling from Mavoko Law Courts with his client after a Court appearance on Thursday 23rd June 2016, lawyer Willie Kimani together with his client Eric Mwendwa were picked up by a taxi driver John Muiruri towards International Justice Mission offices in Westlands, but were hijacked near Mlolongo area.

If what is being reported in the media that: Mr Eric Mwendwa had alleged that the charges against him followed his claim that he had been shot at by a Police officer in a dispute of a personal nature and further that; Mr.Mwendwa lodged a complaint with Independent Policing Oversight Authority (IPOA), accusing the officer of attempted murder and of framing charges, Kituo Cha Sheria smells a rat.

KITUO takes the view that; Lawyers who act as officers of the Court; with an overriding obligation to accept any instructions and to represent clients whilst carrying out their Constitutional duty of ensuring access to justice; should be able to do so without fearing for their lives.

Kituo Cha Sheria therefore joins the International Justice Mission, a human rights organization that has excelled in representation of victims worldwide and other organizations in asking the question, just how safe are human rights lawyers in Kenya whilst in the course of duty?

Kituo Cha Sheria remains alert to this disturbing news and reality  and is considering if and when appropriate to seek habeas corpus orders since there are media reports that certain bodies have been sighted, but have not yet been produced.

In the meantime, the family of Kituo Cha Sheria stands in solidarity with the families of Mr. Kimani, Mr. Mwendwa and Mr Muiruri and we keep them constantly in our thoughts and prayers.

28th June, 2016

By

Angote Gertrude

Kituo Cha Sheria

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SUCCESS STORY OF GRACE OMUYAKU

mwariri

Grace Omuyaku (Center) receives her cheque from Kituo Advocate John Mwariri as Kituo’s Boniface Muinde looks on.

The story of Grace Omuyaku adds up to the many success stories that Kituo boasts of having successfully assisted its clients get justice.

Kituo cha Sheria (KITUO) is an organization that has for long been in the forefront in pursuing justice for the indigent in society. Since Grace was introduced to Kituo, she has been on a journey with the assistance of Kituo for the last seven years. The persistence on this journey has finally seen a smile back on her long forlorn face; and long may it continue.

What’s the Story…

Grace worked for Telecom Kenya as a personal secretary for over 20 years until 2006 when she and other employees approaching 50 years of age were retrenched. In December the same year, she was paid a lump sum amount of Ksh. 800,000 by the company (Telkom).

After consultation, Grace sought to invest the money in a Nairobi based company called NOSKCID (Africa) Asset Management Limited. Here, she was supposed to be receiving Ksh. 20,000 per month as interest from her investment for six month then she renews the investment upon wish.

“That only worked for a period of the first six month, then the first four month of the renewed investment, though through struggle,” she recalls.

Her encounter with Kituo cha Sheria.

Thereafter, the company went silent, never to deposit any more money to her account or even notify her of anything. It was during this ordeal, in 2009 when a friend of hers (Teresa, former client at Kituo) referred her to Kituo cha Sheria for legal assistance.

She remembers Kituo receiving her warmly and the first step was writing to the company seeking to resolve the matter out of court. These efforts proved futile as the company ignored the letter and the matter proceeded to court.

Since Grace could not afford raising court and related fees, Kituo helped her document a pauper application which succeeded. After going through the long court process the court ruled that Grace be paid a decree of Ksh. 879,852. The company did not honor this ruling either, to their shock, Grace and Kituo found out that the company had transferred all its assets to an unknown location. This meant that even auctioneering the company’s property was not a possibility. In 2015, the high court ordered that the directors of the company be summoned and when they appeared their lawyers claimed that the company had wound up. Instead the directors proposed to be paying Grace Ksh.50, 000 per month, starting May the same year only to do it for only one month and stopped.

March 2016, Kituo filed an application to the magistrate for notice to show cause why the director cannot be committed to civil jail or pay the amount and in June 15th, 2016, the court issued a warrant of arrest for the directors risking commitment to civil jail.

This signaled to the defendant (director) that things were getting worse and so a day later, on 20th June, 2016 he gave out a cheque of Ksh. 100,000 through Kituo lawyer, John Mwariri- defender of the poor-handed over to Grace Omuyaku, in the presence of another Kituo Officer Boniface Muinde at Kituo cha Sheria gardens. The defendant has further proposed with permission of court to be paying in installments until the whole amount now standing at Ksh. 1.6M is cleared.

Now that gives Grace a ray of hope and a smile on her face. She says that she hopes all will be well and gives a big thank you to Kituo cha Sheria for walking with her this long journey to see to it that justice prevails and the rights of those habitually trodden are upheld.

RCKM

Kituo Cha Sheria

 

 

Kituo undertakes M-Haki Market Research and Training in Nairobi

nrbi

Starting on the 8th June 2016 at the Korogocho Community Justice Centre; 10th June 2016 at the Kibera Community Justice Centre and on 15th June 2016 at the Kamukunji Community Justice Centre, Kituo has been carrying out M-Haki market research and training for community members within where our justice centers are based.

M-Haki-‘Haki Mkononi’ is the use of SMS technology to disseminate legal information to clients and Kituo is currently in the first phase of a three phase implementation process where we’re conducting market research primarily to find out what people are willing to pay for the service.

In addition, Kituo is collecting and analysing data and experiences needed to engage Kituo stakeholders including volunteer advocates, paralegals and community members. This phase is ongoing ahead of the launch of the M-Haki platform and the corresponding advocacy activities. The three Market research and training activities involved around 100 participants representing different groups from within the communities. The training and research activities were spear-headed by Kituo legal officers Ashioya Biko and Maureen Thuo assisted by the respective community justice centre coordinators.

M-Haki is an innovative and reliable technology developed by Kituo Cha Sheria intended to lessen the costs of accessing justice. To make use of this technology, Kituo has a dedicated mobile number – 0700777333  where the public can text legal questions at a small fee to be answered by Kituo lawyers and volunteer advocates. Questions are gathered from anyone and anywhere and this will save persons the trouble of using commuter fare to come to Kituo’s offices. In other words legal advice is just a click away… Haki Mkononi.

M-Haki follows the idea of delivering basic justice/legal advice to people even for those who use quite basic mobile phones. The platform also serves as an advocacy tool to be used by Kituo paralegals from the community justice centres to build their personal capacity on legal issues and create awareness among the general public on how to access the service directly.

RCKM

Kituo Cha Sheria.

Must a Father’s Name be on the Birth Certificate of a Child?

The High Court in its ruling dated May 26th 2016 stated that women may now register the names of the fathers of children, born outside marriage without their consent on the birth certificate. Lady Justice Mumbi Ngugi ruled that all birth records may include the father’s name. Further, the court declared Section 12 of the Births and Deaths Registration Act unconstitutional.

Section 12 of the Births and Deaths Registration Act Unconstitutional

Section 12 of the Births and Deaths Registration Act states that no person shall be entered in the register of births as the father of a child “except either at the joint request of the father and mother” or upon proof to the Registrar that the father and mother of the child were married to each other in accordance with the law.

When the Act was enacted there was no DNA test or conclusive method of determining the validity of any unmarried woman’s claim. Further, women generally at the time did not get children out of marriage and their claims would therefore be unsubstantiated. Where a father expressly prohibited the mother from including his name in the Birth Certificate, he was backed by the law. The effect of such a law is the large number of single mothers in our society with little to no financial backing from the fathers of these children. Therefore, an undue burden is placed on the mothers of these children whilst the father is left to go without any parental responsibility.

Whereby there was no father acknowledged, there was the practice of placing the “XXXX” marks on the birth certificates of children born outside marriage. The placing of such marks obliterates the genesis and background of a child and gives incorrect information. Consequently this obliterates a child’s history and background information, inadvertently flying in the face of constitutional provisions on the right to information and health.

This section also presupposes that each child will have both his mother and father alive and available to make a joint application for such child’s birth certificate. In the case where the mother dies at child birth, such a child would not be able to meet the criteria to have his father’s name on the birth certificate.

Furthermore, the effect of section 12 is that if a father of a child born outside marriage is not willing to have his name entered in the register as the biological father, then his name will never be entered in the register. This is because; since the mother and father are not married to each other, there will never be any proof of marriage between them as would satisfy the Registrar.

The section places an arbitrary and unfair distinction between children born in wedlock and those born outside marriage. It also places an unjustified and unwanted distinction between married and unmarried women. These categorizations further perpetuate discrimination that fuels an already patriarchal system. Promises of equality and non-discrimination to children are entrenched in the Constitution. It is not too much to demand that we begin to affect these promises with respect to children born outside marriage.

The spirit of the Ruling

The spirit of the judgement seems to be the desire to transform society, to recognize the inherent dignity and worth of all persons; to protect those who have hitherto been marginalized and to ensure that they enjoy the human rights guaranteed to all on the same basis. Further, that the best interests of the child, whatever its status of birth, must be the primary consideration in every matter concerning the child.

The Constitution and the Law of Succession Act both accord equal treatment to children born in/outside wedlock. The law of succession act provides that all children have the right of inheritance from their parents.  The judgement merely enforces the existing position of the law on equality. Nothing new is being introduced; rather a law is being brought to conformity with our Constitution.

Where the father of a child born outside marriage refuses to contribute to the upbringing of his child, the mother is compelled to seek the Court’s assistance in the form of a maintenance order, which often requires establishing paternity through a DNA test as per the ruling delivered.

However, with legislation that provides for inclusion of the particulars of fathers in the birth certificates of all children, whether born within or outside marriage, the burden imposed on women is lessened, and it is possible for men to take up their responsibilities with respect to children sired outside marriage.

Does this ruling support fraud?

The Attorney General alleged the purpose of section 12 of the Birth and Registration Act  was to  protect   putative men  from the alleged machinations of unscrupulous women (based on an unapologetic but unacceptable patriarchal mindset that wishes to protect men from taking responsibility for their actions, to the detriment of their children.)

In the court’s view, balancing the two interests, that of the men and the rights of children, there was no contest seen. Such a stated purpose, the alleged protection of men from unscrupulous women, is premised on a negative, discriminatory stereotyping of women as dishonest people who will latch onto a man for child support with no basis.

Furthermore it is provided in law that any person who fails to give notice of a birth or death registration and any person who willfully gives any false information or particulars for the purpose of registration, shall be guilty of an offence and be liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment.

It appears that should the mother of a child born outside marriage name a person as the father of her child falsely, then she will face the law.

The process of DNA sampling may be used to confirm the putative father, and the issue of costs can be addressed when such circumstances arise. Where a mother of a child born outside marriage alleges that a certain man is the father and he denies paternity, if the DNA process proves that he is indeed the father, he should be condemned to pay the costs of the DNA. However, if the DNA turns out negative, the mother should pay the cost of the test. This is as per the guidance of the court in the just concluded ruling.

Needless to say, there needs to be provision for the time within which such applications are to be made, and for notice to the alleged fathers, as well as provision for DNA testing to be undertaken to establish paternity where it is denied.

It was also argued that if names are allowed to be inserted in the Register at any point, a platform of confusion which will allow unscrupulous persons to enter any person’s name in the Register at any point in their lives for personal reasons will have been opened. Further such a situation will also open a window for unending litigation, and it is not in the best interests of the child that the name is entered in the Register at any stage, is contested, and then is struck out.

However, the court, in its ruling added that what needs to be put in place are clear rules for applying for the name of the putative father to be inserted in the birth register and certificate, for notice to be given to the person concerned so that he can agree or object, and in the event of an objection, for DNA testing to be done.

Rape and Defilement

There are unfortunate instances when children are begotten as a result of rape and sexual violence inflicted upon a woman. Naturally, such women may not particularly be inclined to include the names of the father of the child onto the children’s’ birth certificates.

Unfortunately, the judgement does not explicitly state what should happen to women in sensitive situations such as rape and if the father cannot be identified in such scenarios. It is however implied that should the identity be known through DNA testing, the father should ultimately provide for the child and we assume also appear on the birth certificate. We assume the court will resort to means such as attachment of property of the accused in the event they are paupers.

It is true that many rape victims would hardly want the names of their rapists on their children’s’ birth certificates. It seems that the judgement implies that the placing of fathers’ names is mandatory. Therefore this is a great oversight of the learned judge if that is indeed the position.

The judgement does raise some difficult questions. Especially considering it seems to eliminate the right of choice by women to exclude the names of men they have begotten children with.

By

Samantha Oswago and Wangari Karige

LAED-Kituo Cha Sheria

 

My mother’s sins; when prison is the only home a child knows…

law opinion

“Our current criminal justice system has no provision for restorative justice, in which an offender confronts the damage they have done and tries to make it right for the people they have harmed. Instead, our system of “corrections” is about arm’s-length revenge and retribution, all day and all night.” 
― Piper KermanOrange Is the New Black

Prisons are institutions set up for the purpose of taking custody and care of persons convicted of offences by courts of law. The act of imprisonment in itself ordinarily is the punishment. However in Kenya, as Omboto (2010) argues, harsh prison conditions characterized by; congestion, poor diet, debasing clothing and beddings, lack of clean water, poor sanitation, infectious diseases epidemics, homosexuality, drugs, torture and crime are part and parcel of our “rehabilitation” programs. Studies conducted at the Langata Women’s prison show that the children share the same conditions with adults. No special rooms are set aside for inmate mothers and their children hence subjecting these children to horrific and obscene situations,which include; nudity,profanity,violence, homosexuality, sexual violence and drugs. Keep in mind the fact that some of these inmates have been convicted of defilement.

Notwithstanding the foregoing, Kenyan laws allow toddlers to stay with their inmate mothers in prison in certain circumstances.  The law specifically states in Section 30(4) of the Prisons Act cap 90 Laws of Kenya that;

The infant child of a female prisoner may be received into prison with its mother and may be supplied with clothing and necessaries at public expense:

Provided that such child shall only be permitted to remain in prison until it attains the age of four years or until arrangements for its proper care outside prison are concluded, whichever shall be the earlier.

Over and above the challenges faced by the prisoners, warders themselves face challenges such as poor pay, poor living conditions and the lack of skills and expertise to adequately rehabilitate inmates.Of all the challenges facing the prison officials/warders, their deficiency in skills and expertise in penology and corrections is of primordial importance to this article. According to Omboto the want in skilled wardens is diverse from sociologists, psychiatrists, psychologists, professional counsellors,social workers and penologists.The lack of such pertinent skills may be compared to the lack of medical therapy in an endemic.The application of these skills in the rehabilitation efforts of offenders is the purpose of imprisoning the offenders in the first instance. We cannot purport to remedy an ill that we refuse to address and cure.Sadly, children are born into these conditions. Having done no crime, they are sentenced to four of their early years in incarceration, in some extreme cases even longer.

BEST INTEREST OF THE CHILD

The prison system is riddled with corruption, congestion and complacency; the warders in some cases restrict the inmate mothers from making living arrangements for the children outside the prisons. Currently, there are 387 children accompanying their mothers in prison. Catering for them has proven to be a challenge to the prison authorities. The challenges experienced in regard to these children by the warders include; suitable housing, cloths, beddings and other facilities appropriate for children. The day care established at the Lang’ata Women’s Maximum Prison is a step in the right direction. However, there seems to be a lack of adequately trained staff dealing with early education development of these children. Additionally, not all prisons are equipped with these daycares and early childhood development centres. Article 3 of the Convention on the Rights of the Child takes into consideration the Best Interest of the Child. It provides that in all actions considering children, whether undertaken by private or public social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.The government of Kenya has greatly infringed upon these rights and indeed freedoms of these children. Granted there are inmate mothers who insist on taking care of their children and those that have no alternative, but at what costs? According to the Presentation done by the Commissioner General of Prisons titled; Towards Decarceration: A Statistical Analysis of Imprisoned Offenders, Challenges and Opportunities for Reform by the Deputy for the year 2016 only, there are 2599 convicted female offenders for the year 2016 only. These women have been charged with the following offences:-

 

Type of offences Female
Order & administration of lawful authority 101
Injurious to public 31
Against persons 69
Related to property 87
Attempts & conspiracies 32
Employment  Act 54
Liquor laws 1791
Drugs related 50
Registration of persons 20
Various other offence 364
Total 2599

These children are exposed to all these manners of crime and criminals at a tender age. It is unrealistic to assume that they will not then become a product of this nurture and nature. According to the Convention on the Rights of the Child in its preamble; for the full and harmonious development of a Child’s personality, the child should grow up in a family environment, in an atmosphere of happiness, love and understanding. It further provides that a child should be brought up in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.However, the Kenyan prisons system embodies the antonyms for values such as peace, dignity, tolerance, freedom, equality and solidarity as expounded above.

Besides, prison is not a conducive environment for a child’s early development and growth because their psychological and physical welfare may be polluted and stunted. The challenges facing the prison systems and warders in terms of fund and human resource allocation married with the challenges facing the prisoners work at inhibiting proper rehabilitation. It is illogical to include infant children who are physically and psychologically immature into a system that can neither support itself nor provide special care and protection to them. In this case, Kenya jumped the gun in regards to planning. Initially there should be law and policy framework reforms specifically dealing with inmate mothers and their children, followed by the institutional reforms and finally implementation of these sound laws into practice. For example, laws or policies addressing funding, nutrition & health, early child hood development and qualifications of the children developers as well as institutional reforms to include an independent oversight authority that specifically deals with prisons.

CONCLUSION AND RECOMMENDATIONS

Little to no rehabilitation occurs in our prison system as there are far too many criminals and far too little skilled warder/official counterparts. The underfunded and overstretched meagre resources barely cater for the prisoners let alone their children.

For Kenya to fulfil its international and regional obligations expressed in the numerous conventions ratified,in regards to children, certain measure have to be taken to reform the prison system in Kenya.

To permanently alleviate and possibly eradicate these problems the government should set up children homes near the prisons which accommodate the children whose mothers have been convicted. This will ensure that the children are brought up in a conducive environment for psychological and physical development. It is important to note that the children themselves are not convicts and should not be treated as such.

By June Njoki and Wangari Karige, Legal Aid and Education Programme (LAEP)