Cattle Rustling: The Human Rights and Constitutional Perspective in Kenya’s North Rift Region with Possible Intervention

Opinion Blog

Cattle Rustling v. Cattle Raids 

Cattle rustling as opposed to cattle raids in Kenya may be traced to the 90s; with the latter documented as a metamorphosis of the former. These two may be distinguished by the kind of weapons that accompany the activities, the motive and the societal impact. Conducting cattle raids is an activity synonymous to ‘culture’ in most African Pastoralist Communities. They were conducted using sticks and crude weapons and with the aim of getting wealth for those who were poor and disabled in the community. It is also important to note that there was no killing and destruction of property. The agenda was to scare the owners of the cattle as they drove them away. However, today cattle rustlers employ the use of guns, massive destruction and loss of properties, injuries and sometimes death. There is also uncertainty and fear that engulf communities in the North Rift Region hence affecting trade, schooling and the general day to day life. The motive is different too, while in the past it was all about mutuality, today it is a commercial activity which recent media reports attribute to cartels and political leaders in the region.

At a chancery glance cattle rustling appears uncouth and primitive yet with all the laws, education, modern technology and a rapidly developing country, people still die, property is lost and the police and Government agencies maintain a defeatist attitude. This paper reflects on cattle rustling from the lense of property theory, it builds a case against the vice from a constitutional legal and human rights perspective and finally offers a few solutions to the problem.

John Locke’s property theory in the Second Treaties of Government interestingly may explain the situation. He explains that property in the ancient times was communally owned as they were given by God. Individual rights to property were only gained through an individual’s industry. The best way to explain this is the example of fishing. An individual cannot claim all the fish in a lake but by virtue of putting industry and going out to catch fish, they own what is caught. Likewise, cattle raiders assume that cattle are communally owned and given by God and by putting their industry (going out for raids); this gives them property rights. Therein lies the disconnect, we have a people who believe in an ancient concept of property in a world that has moved past that theory and a Government which assumes that these communities understand rights in rem and personam. Studying this subject does not excuse the unruly manner in which this happens however, it is clear that it may not but be a simple case or robbery and violence but a tradition grounded in strong canons of property theory. One way to solve the problem of cattle rustling may be by putting in place policies and making steps towards revolution of the concept of property among these communities. Before we get into that, what are the human rights and constitutional implications of cattle rustling?

The Constitution of Kenya, 2010 is grounded on the principle and value of the rule of law. This principle envisages a situation where there is a standard law that everyone needs to adhere to regardless of status in the society. Applied to cattle rustling in the North Rift Region, the rule of law means respect for one’s property and life. Adherence to the rule of law further means acquiring firearms in accordance with the law. Article 40(1) of the Constitution expressly permits individuals, association or even communities to own property. Article 26 (1) of the Constitution further protects life and finally Article 28 deals with human dignity. It is therefore clear that “cattle rustling” is not just a breach of human rights but it is unconstitutional.

The Penal Code (Cap 63) laws of Kenya also touches on a few things related to cattle rustling that make it an offence. Murder in Section 203 is the first which carries a sentence of death or life imprisonment upon conviction. Section 220 is attempted murder which also attracts a punishment of life imprisonment. Assault causing actual bodily harm in Section 251 always occurs a misdemeanor that carries a sentence of five years upon conviction. Robbery with violence in Section 295 which carries a sentence of death upon conviction may also be another count. Section 322 deals with handling stolen property. This is a felony which attracts a sentence not exceeding fourteen years imprisonment upon conviction. Section 333 deals with arson which attracts a prison sentence of fourteen years upon conviction. The Fire Arms Act is another legislation that makes cattle rustling an offence.

International laws further prescribe certain rights which cattle rustling contravene. First is the United Nation Covenant on Social, Economic and Cultural Rights. Cattle rustling activity unsettles especially the Marakwet and Pokot communities such that they cannot grow socially and economically. Some people in these communities have migrated to other places because of fear of cattle rustling. This vice is also in contravention of the United Nation Convention on the rights of the child. This comes to play as children are always some of the most vulnerable and often victims of these raids.  There are also young girls who are forced into early marriages so as to get protection from cattle rustlers. The Convention of elimination of all forms of discrimination against women (CEDAW) further frowns upon cattle rustling because just as children women are also victims of these circumstances and always bear the heaviest brunt. Finally, there is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT))  which also condemns the activities of cattle rustling.

The most disturbing thing in this is that while the law is sufficient, this activity keeps thriving with very little prosecution or success in combating the vice. Several leaders, politicians always talk tough but that seems to be all that goes on.

The possible measures and inteventionary steps include:-

Firstly, there need for advocacy and sensitization against cattle rustling among these communities. For a long time these pastoral communities in Kenya have been marginalized. They were either rubbished or left to their own devices hence they still hold on to this ancient and outdated concept of property. This has even led to a misdiagnosis of the actual problem, hence branding it a cultural problem. The Sapana cultural rights among the Pokot may encourage young men to get cattle but if they understood the modern conceptualization of property ownership in modern day Kenya and the criminal consequences, this may not be a problem.

Advocacy helps in teaching the law, opening up the community, disarmament efforts and changing the mindset of these people.

Secondly, the National and County Governments as well as traditional community leaders need to work on modernization of pastoralism as an economic activity. Employing modern methods in taking care of their animals such as ranching may require that they work with a specific number of animals, may improve the yields, and help them get better market prices hence help in eradicating illiteracy and levels among the communities. This also opens up the areas in terms of roads, access and infrastructure.

Thirdly, the Government needs to stop talking tough and properly enforce the law. The biggest catalyst of cattle rustling is the availability of illegal guns and light weapons.  If these guns can be taken out of the equation it will take the sting off.

Police administration need to take this seriously and clean these communities and if they can’t why not get the military involved. Criminal law may kick in, with arrests being made and guilty persons convicted. When this is done cattle rustling may be finally recognized as an offence it is rather than a cultural activity.

Finally, cattle rustling has nowadays taken a commercial dimension with political patronage. The challenge here is that some politicians provide the weapons and the market for the stolen cattle. As much as it may be uncomfortable, the best way is to cut off the head. These politicians should be arrested so that peace may prevail.

Conclusion

In conclusion, cattle rustling is a problem that touches on a number of areas within the fabric of society. Whenever these raids take place it is a question of tribes and ethnic groups living together, it is a matter of security, human rights as well as social cultural and economic issue that the Kenyan government should take seriously.           

  By:

Ouma Kizito Ajuong’

Poet, Lawyer, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD KSL, Legal Practice

 

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Success Stories-Kakamega Prison Justice Centre

Article 48 of the Constitution of Kenya specifically advocates for access to justice for all. Kituo Cha Sheria has established Prison Justice Centres that are managed and run by trained prison paralegals to assist them self-represent in court, offer legal advice to the other inmates, educating them on criminal law and guiding them on how to confidently represent themselves in Court and empower the entire prison community. Kituo has played a big role in supervising these centres and providing technical assistance in legal matters that need the attention of an advocate. To date, Kituo has established Prison Justice Centres at Shimo La Tewa Men & Women Prisons, Lang’ata Women’s Prison, Kamiti Maximum Prison, Kodiaga, Nyeri Main (King’ong’o) G.K. Prison, Kakamega GK Prison and Meru GK Prison. As a result, inmates and Prison Officers have been able to offer legal aid services to inmates and from 2010 to date 10,000 + inmates have been released following interventions by trained paralegals. The Prison justice centers have significantly contributed to the decongestion of prisons and at the same time made justice accessible to those who could not afford the services of an advocate.

These are some Success Stories from the Kakamega Prison Justice Centre…

I. Jackson  Sikunga Maloba alias Stephen Opondo Raimondi

OFFENCES: C1. Obtaining money by false pretence  C2. Unlawfully making use of another person’s identity card C/sec 313 pc and 14(1) (f) of the registration of persons Act Cap107 Laws of Kenya respectively. CRC No. 1053/2012. SPM;s Court Mumias

Jackson  Sikunga Maloba was remandee at the Kakamega Prison where he found the Prison Paralegals ready to assist him with his matter. Among some of the issues raised included; he claimed the case was a frame up, his advocate was not representing him well; his bond pending appeal was dismissed-HCCR. MISC. APP. 33/2016 to which he appealed to the High Court vide HCCR.A No 62/2016. Mr. Sikunga claims he was ailing and even walking had become a problem as he was continually being helped by other prisoners to get his meals or even clean up himself and his clothing. The basis of his appeal was a request for mercy from the courts.

The prison paralegals took up this matter and advised that he should regularly take his drugs and continue to do some walking within the compound. They also recommended that the prison social welfare officer should call his lawyer to come and give him assurances on the progress of his case. The prison documentation office should help him request a review of his sentence. The prison paralegals also advised that the prison medical officer to write a supporting report on his medication.

The Officer-In-Charge wrote to the High Court to review Mr. Sikunga’s sentence on 2nd February 2017 VIDE: KAK/G/DOC/P/1/VOL. XXII/360 and Mr. Sikunga was discharged on bond pending appeal on 17th March, 2017. Successful.

II. Derrick Onyango

OFFENCES: Being in possession of narcotic drugs C/Sec.  3(1) and 3(2) (a) of the narcotic drugs and psychotropic substances. CRC No. 2010/017. CRM’s Court KAK-1 year sentence

Mr. Onyango who was a 21 years old University student was arrested while at the Nakumatt Supermarket in Kakamega town buying rizzler papers and found in possession of a stick of bhang. He informed the prison paralegals that he needed to be helped to go back to school and continue with his studies. He was subsequently advised to write a petition  to the High Court for revision of his sentence and that he should attach his admission letter, course programme, student ID and if possible a letter from the university confirming his continuation.

The prison paralegals drafted the petition for Mr. Onyango  which was received by the High Court on 11th August, 2017- HCCR. Misc APPL No. 63/2017. He attended Court for the application severally for mentions of the same and was discharged on 26th September 2017 to serve One Year Community Service Order (C.S.O). Successful.

III. Sammy Ongadi

OFFENCE: Defilement C/Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. CRC No. 316/2012- SPM’s Court, Vihiga.

Mr. Ongadi approached the Kakamega Prison Justice Centre with a pending appeal at the High Court in Kakamega seeking help to inform the Court about his ailment in prison and the fact that he had not received proceedings to enable him prepare submissions. The prison paralegals advised him to swear an affidavit enumerating his ailments and assisted him in writing an application for court proceedings.

A request for proceedings was subsequently forwarded by the Justice centre on 7th April 2017 together with Mr. Ongadi’s affidavit which was forwarded on the same day. On hearing of his matter the prisoner was discharged by appeal on 23rd October 2017. Successful.

IV. Javan Anyanga

OFFENCES: C.T I: Gang Rape C/Sec 140/PC C.T. II: Defilement 8(1) and 8(3) C.T. III: Defilement 21/2/2008. CRC No. 65/2007-SRM’s Court Mumias. Sentence: Life

When Mr. Javan Anyanga presented his matter to the Kakamega Prison Justice Centre; his appeal had already taken long. Mr. Anyanga had become visually impaired while in prison and was requesting assistance with fast tracking of the case.

The prisoner serving a life sentence was advised to write a reminder to Court (which the prison paralegals drafted on his behalf) and was also advised to see the prison medical officer to draft for him a report to support his submissions.

The parlagals prepared the reminder which was presented to the Court together with a report from the prison medical officer to support his submissions. Mr. Anyanga was consequently discharged by appeal on 23rd October 2017. Successful.

RCKM
Kituo Cha Sheria.

Success Stories-Kodiaga Prison Justice Centre

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Article 48 of the Constitution of Kenya specifically advocates for access to justice for all. Kituo Cha Sheria has established Prison Justice Centres that are managed and run by trained prison paralegals to assist them self-represent in court, offer legal advice to the other inmates, educating them on criminal law and guiding them on how to confidently represent themselves in Court and empower the entire prison community. Kituo has played a big role in supervising these centres and providing technical assistance in legal matters that need the attention of an advocate. To date, Kituo has established Prison Justice Centres at Shimo La Tewa Men & Women Prisons, Lang’ata Women’s Prison, Kamiti Maximum Prison, Kodiaga, Nyeri Main (King’ong’o) G.K. Prison, Kakamega GK Prison and Meru GK Prison. As a result, inmates and Prison Officers have been able to offer legal aid services to inmates and from 2010 to date 10,000 + inmates have been released following interventions by trained paralegals. The Prison justice centers have significantly contributed to the decongestion of prisons and at the same time made justice accessible to those who could not afford the services of an advocate.

These are some Success Stories from the Kisumu Maximum Prison-Kodiaga Prison Justice Centre…

I. OFFENCE: HANDLING STOLEN PROPERTY: 56/2016

Samuel Kimtai Bor a resident of Kisumu was arrested in March 2016 and arraigned in Kisumu Law Courts where he was charged with handling stolen property. He stayed in remand for a period of seven and a half months awaiting hearing. Neither him or his family could afford to hire a lawyer to represent him in his case. However, the prison paralegals at the Kodiaga Justice centre were instrumental in assisting by way of training Mr. Bor on how to speak up confidently in court, how to ask questions during cross examination, re-examination and examination in chief. Subsequent to this coaching and with tips from the paralegals Mr. Bor’s case was heard and judgment made on   23rd March 2017 in his favor. He was acquitted and he is no longer at the Maximum Prison Facility.

II. OFFENCE: DEFILEMENT: 9/2013-KISUMU

Atieli Shikunyi Ofira, 87 years of age was sentenced to five years imprisonment for defiling a five year old girl. Ofira a resident of Kisumu could not afford to hire a lawyer to represent him in his case. His family members too could not afford to pay for his legal services. However, his case could not be proved beyond doubt as there had been no medical examination of the minor to ascertain these claims and there were no witnesses to attest to this crime being committed.

The Kituo trained prison paralegals were instrumental in identifying the gaps and loopholes present in his case file. They trained Ofira, on how to conduct himself in court, the relevant questions to ask during cross examination, examination in chief and re-examination.

He was acquitted on 23rd February, 2017 after the Kisumu Law Court ruled in his favor. He is no longer at the Maximum Prison Facility.

RCKM

Kituo Cha Sheria

Success Stories- M-Haki

M-Haki-Logo-revised

Kituo cha Sheria had the thought of coming up with an innovative and cost-effective service that allows for better delivery of legal services and information to more people in society and in particular, the poor and marginalized. This is what brought about, M-Haki-‘Haki Mkononi’. M-Haki started official operation on 8th March 2016 and has been of service to over 5,100 clients to date. M-Haki-‘Haki Mkononi’ is the use of SMS technology to disseminate legal information to clients. M-Haki is both innovative and reliable and is 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 to be answered by Kituo lawyers and volunteer advocates.

Some sample success stories from the platform include…
I. Brian Gicheru- Labour Matter
Brian Gicheru a resident of Nyeri County on behalf of his father wrote in to the platform to enquire on a labour matter. In his query, Brian stated that his father’s contract of service was terminated on 19th September 2017, by a Company named Hippora Business Solutions on account of redundancy.  His father’s terminal dues didn’t follow the termination up to date as required by law. Furthermore, he had worked for the company for over five years. Numerous visits to the Nairobi county labour office bore no fruit.
Kituo Cha Sheria was able to assist by referring Brian Gicheru to bring his father to our head office with all relevant documents to support his claim.
A demand letter was drafted by the legal aid team upon the visit and further along the client was referred to a volunteer advocate in Nyeri County where the cause of action arose. Kituo is following up on the matter to ensure that justice prevails.

II. Oluoch Omondi Jacob-Land Matter
Oluoch Omondi Jacob a resident of Eastleigh, Nairobi bought a parcel of land from a willing seller who is now since deceased. The conveyance process went as far as reaching land gazettment. However the land title wasn’t transferred to his name. Omondi sought for advice through M-Haki platform on what steps to take next after the deceased’s wife began to claim that she was not aware of the existence of our client. He was adequately  referred to a volunteer advocate and advised by Kituo advocate to issue any relevant documents related to that transaction to his counsel as Kituo advocate maintains contact with the counsel in question to be abreast of any progress.

III. Wairimu Gitobu-Succession Matter

Ms. Wairimu wanted to know the process of succession in a probate matter. She was given a detailed explanation of what occurs during such a procedure and the pre-requisite documents that she should acquire (death certificate of the deceased, a letter from a local chief ascertaining relation, a list of beneficiaries/ dependants et cetera. She thanked us for our services. We count this as a success.

RCKM

Kituo Cha Sheria.