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The Kenyan Woman’s Place in Succession

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Introduction

The law of succession also referred to as the law of inheritance basically deals with the transmission of property rights from the dead to the living. This area of law deals with transmission from the dead to the living and consequently inheritance is common in all human societies and is therefore a concept of universal application.

The 5th edition of the Black’s Law Dictionary defines succession or inheritance as ‘’the devolution of title to property under the law of descent and distribution.’’ This definition therefore excludes those who take by deed, grant or any other form of purchase contract.

Arguably, this is driven by the desire to acquire property and as such, it is one of the ways of acquiring property due to the fact that when someone dies, the right to own and enjoy property rights die with them as well thus the rights over the property have to be acquired by someone else.

With consideration to the foregoing, the aspect of control has to also be factored in and considered. In most cases, people exercise this control in ways that are legal in the eyes of the law. However, philosophical decisions behind succession are the right of the owner to control that property even after death. Such people can do so through a will.

The main purpose of succession laws therefore is to provide the mechanisms through which property will be transmitted from the deceased to those who survive him/her and this automatically involves the following:

  1. Identifying the legal claimants who claim the property.
  2. Identifying the procedures of which such rightful claimants or dependents succeed to the property of the deceased.
  3. Identifying the mechanisms for dispute resolution as provided so as to resolve any conflicts between persons who claim to be rightful owners.

However, patriarchal ideologies give shape to family life and defines it in terms of a bread winning husband and a domesticated wife or rather a housewife which in many cases is domesticated by the males despite the fact that some of these women may be making substantial contributions to the household income. Consequently men are attributed with greater economic power when it comes to determining how the family income and resources should be allocated.

Various communities and societies have their own set of rules despite the fact that inheritance is a universal concept. In Kenya however, we have Cap 160 which is the law of succession act and which is of general application. There are other laws which apply such as Islamic laws and customary laws which are fortunately or unfortunately exempted by the Act but still apply informally in practice.

During the colonial period, various laws used to apply and various statutes applied to the various communities at that time such as to Europeans, Africans, Hindus and Muslims as well. The advent of independence saw an attempt at moving towards uniformity i.e. an attempt to consolidate and harmonize the various laws of succession into one statute catering for various peoples of Kenya. This culminated in the enactment of the law of succession act in 1972. This was done with the aim of bringing to an end differential treatment of people carried out during the colonial period. After independence, emphasis was on equality and the enactment of the law of succession act was an attempt at this equality.

The succession of the estate of a deceased may however take two forms. It may be by a will which is referred to as testate succession or can also be without a will which will thus result to intestate succession. Both forms are recognized by the law regulating matters of succession in Kenya. Intestate succession or rather intestacy occurs when a person dies without having made a will or the persons attempt to die testate fail upon the invalidation of his will by a court of law or the person revokes his will and subsequently dies without having made another will.[1]

Intestacy may therefore be total or partial. It is said to be total where the intestate has left no valid will. It is partial where a person fails to include all his property in his otherwise valid will or part of the will is revoked or a person acquires property subsequent to the making of the will that is not ambulatory. The property not covered by the will is governed by the intestacy provisions or is subject to intestate succession.

The rules of intestacy however apply to property that is capable of being disposed off by a will and do not apply to joint property which passes by survivorship or to nominations, life policies written in trust, or the subject of a dornatio mortis causa and therefore Cap 160 makes provisions for both monogamous and polygamous situations. The nature of devolution of property therefore depends on whether the deceased was polygamous or monogamous.

The succession of the estate of a deceased could also be testate in that he dies leaving a valid will to direct how his estate should be devolved after his death. Despite the fact that this could be the case, women are still marginalized and affected by cultural practices and customary laws in great proportions.

This could occur where the deceased dies testate but in his will and due to cultural demands, excludes the girl child from his otherwise valid will. This has the effect that such a girl will not have a place in succession and it’s because the society’s background allows so. This shows that even though the deceased might die testate, women still face the risk of being disinherited and might as well have no place when it comes to succession.

Customary laws in most communities are never fair and do not safeguard the rights of women whether the spouse, spouses or even the girl child. This therefore means that when referring to women in this context, the girl child is also included because in one way or another, she will end up being affected by the same issues already affecting and similar to those affecting their mothers.

What does the Law of Succession Act say?

The Law of Succession Act provides that ’’except as otherwise provided in this act or any other written law, the provisions of this act shall constitute the law of Kenya in respect of and shall have universal application to, all cases of intestate or testamentary succession to the estate of deceased persons dying after the commencement of this act and to the administration of estates of those persons.’’[2]

The Law of Succession Act makes various provisions to regulate inheritance matters for the various types of marriages. The Act makes provisions for both Monogamous and polygamous types of marriages. The nature of devolution of property in intestate succession depends on whether the deceased was polygamous or monogamous. However, the rules of intestacy do not apply to the provisions of Section 32 of the Act.[3]

Most Kenyans undergo Christian marriages which of course are done under the African Christian Marriage and Divorce Act while many others choose to have Civil marriages conducted under the Marriage Act. The marriages conducted under the two Acts are monogamous in nature and therefore subsequent women and children who will have been begotten outside such a marriage would be concubines and therefore illegitimate respectively and according to the provisions of the Act.[4]

Legislative intervention has however addressed the problem. An amendment to the Law of Succession Act now regards the subsequent women as a wife and the subsequent children as legitimate.[5] This is to ensure that all are catered for and for the sole purpose of succeeding the man in the event that he dies. The amendment can be attributed to the perception of the Traditional African society on the family unit.

Monogamous Marriages

The law of succession act provides that subject to the provisions of Section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net intestate estate provided that, if the surviving spouse is a widow, that interest shall determine upon he re-marriage to any person.[6]

On the other hand, the Matrimonial Property Act provides that, a married woman has the same rights as a married man. These rights include to acquire, hold, administer, control, use and dispose of property whether movable or immovable, to enter into a contract and sue in her name.[7] This is a provision whose main purpose is to ensure that men and women are equal or rather have an equal status in a marriage union.

The Law of Succession Act provides that a spouse who makes a contribution towards the improvement of a non matrimonial property acquires a beneficial interest in the property equal to the contribution made by that spouse.[8] In this case, contribution means monetary and non-monetary contribution which includes domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work as well as provided for by the act.[9]

The above assertions were reiterated in the case of Karanja v Karanja[10] where the court recognized the fact that a wife could help her husband acquire property through direct financial contribution. The contribution of a wife as a housewife or rather a housekeeper is no less important and her duties of taking care of her husband and children cannot be overlooked.

The dichotomy of continuum has also posed such a great challenge to succession matters. This has been between the western approaches and the traditional African approaches to issues concerning succession. The westernized jurisprudence puts matrimonial property within the limited confines of the family which is something that has been defined and interpreted by courts before.[11]

In the case of Rono v Rono[12] the sons claimed a greater share of their deceased father’s property that their sisters and their fathers widow. They advanced the argument that under Keiyo traditions, girls have no right to inheritance of their father’s estate and that even customary law supported their claim. However, the court found that where discrimination is at stake, the constitution and human rights standards must prevail.

In 2008, the above challenge was addressed again. In Re Estate of Lerionka Ntutu (deceased), it was argued that Maasai customary law did not recognize a daughter’s right to inherit property from her deceased father’s estate. The court and specifically Lady Justice Rawal made reference to and with reliance on the Rono v Rono decision overruled the application of Maasai customary law and therefore ruled that the daughters of a Maasai who had died without leaving a will were entitled to inherit his property not forgetting to emphasize the need to respect the requirements of CEDAW and International law together with women’s inheritance rights.[13]

In the above case, the question was whether the court was to apply the Law of Succession Act or apply the customary law of the Maasai community. The issue was clarified when Justice Rawal among other things held that any tenet of customary law which would abrogate the right of daughters to inheritance would be repugnant to justice and morality and could not be applied. This was a win for women because it meant that the daughter’s right to inheritance was recognized by the law.

 Polygamous Marriages

The Law of Succession Act provides that where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.[14]

The Marriage Act provides that Islamic and customary marriages are presumed to be polygamous or that they are potentially polygamous.[15] This has the effect that such marriages are considered to be polygamous before the law. The Act further provides that a person in a polygamous marriage shall not contract another, monogamous marriage.[16] Consequently, when one of the above marriages has been contracted, one lacks the capacity to contract a monogamous marriage.

Previously, women who were caught up in a polygamous labyrinth did not get anything in terms of inheritance of their deceased husbands which was very unfortunate. In Re Ruenji’s Estate, the marriage was under the African Christian Marriage and Divorce Act and Sachdeva J. held that women married under customary law by a man who had already or rather previously married under statutory law were not wives and their children were not children for the purposes of succession of the estate and were therefore not entitled to share in the estate of the deceased.[17]

In Re Ogola’s Estate, the same kind of holding was made. Simpson J. held that, a man married under statute is statute barred from contracting other marriages during the pendency of the statutory marriage and that any marriage so contracted are null and void, and the women so married are not entitled together with their children to inherit on the intestacy of the deceased man. This decision again bluntly women who were second wives to men who were already married under statute.[18]

In the matter of the Estate of Samuel Hopewell Gacharamu, the deceased had married his first wife under Gikuyu customary law. When he married a second wife, he married under the Kamba customary law although he again proceeded to marry the second wife under the Marriage Act. The issue that arose was as to who was the widow of the deceased and so entitled to inherit and it was also contentious as to what share should go to the two wives and children if both of them were declared widows.

The court held that the two were married under Gikuyu and Kamba customary law respectively and that the fact that the second wife was married under the Marriage Act merely facilitated the registration of that marriage but didn’t change the character of the marriage or even affect its validity. The two women together with their children were therefore entitled to a share of the deceased’s estate.

The decision in the Estate of Samuel Hopewell Gacharamu was reiterated in the decision in the Estate of Duncan Kiiru Karuku when the court stated that for the purpose of intestate succession, despite the fact that the first marriage was conducted under statute, the other wives and their children were the wives and children of the deceased and were therefore entitled to inherit.[19] Reference should however be made to Section 29 of Cap 160. The Act further provides for the mode of distribution.[20] In the above case, if not for the intervention of the court, the other wives would have been disinherited unfairly. This seems to be a direct interpretation of Section 3 (5) of the Law of Succession Act.[21]

In the Estate of Benson Ndirangu Mathenge, the deceased was survived by his two widows and their children as well. The first widow had four children while the second widow had six children. Ondeyo J. stated that the first house comprised of five units while the second house was comprised of seven units. The court stated that the two houses combined comprised of twelve units if looked at in terms of units. The 40 acre piece of land available for distribution was divided into twelve units out of which five were given to the first widow and her four children and the remaining seven to the second widow and her six children.[22]

What of married daughters?

Married daughters are still entitled to inherit their late father’s estate. The Constitution of Kenya 2010 provides that subject to Article 65, every person has the right, either individually or I association with others, to acquire and own property.[23] The constitution also provides that, the state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.[24]

In the case of Samson Kiogora Rukunga v Zipporah Gaiti Rukunga,[25] the dispute was as to whether a married daughter has a right to inheritance. This was in Meru High Court where the objector, Consolata Ntibuka went to court to challenge her brother’s decision to evict her from their deceased fathers land on the ground that she was married. The matter was brought before Lady Justice Mary Kasango. Lady Justice Mary Kasango stated that in her view, the law as it is now, it matters not whether a daughter is married or not when it comes to consideration of whether she is entitled to inherit her parents estate.

The Constitution of Kenya 2010 in Chapter Five on Land and Environment provides that one of the principles of land policy is the elimination of gender discrimination in law, customs and practices related to land and property in land.[26] The Constitution further provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.[27] The above provisions of the Constitution of Kenya 2010 are tailored to ensure equality between men and women irrespective of the gender dominance.

The position that even married daughters are entitled to inherit their deceased father’s estates has again been reaffirmed in Re Estate of Pricilla Wairimu Kamau[28] where the court and specifically Lady Justice Martha Koome reaffirmed the provisions of the Law of Succession Act that daughters have equal inheritance rights just like sons do and she therefore held that the law doesn’t at all distinguish the children of the deceased on the basis of their gender or marital status.  The above ruling is also a win for the women a step towards ensuring equality between men and women in succession.

What if I am a Muslim woman?  

The Law of Succession Act further provides that “subject to subsection (4), the provisions of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions, the devolution of the estate of any such person shall be governed by Muslim law.”[29] This therefore means that matters to do with devolution of property of the deceased will conform to the provisions of the Holy Quran which states how the estate of the deceased shall be distributed.

The law of inheritance is a vital aspect of the Islam religion. Unfortunately, it can be argued that there is no equality for members subscribing to that religion when it comes to succession. Take for example the provision of the holy Quran that says, ‘’Allah ordains concerning your children that, the male shall have a share equivalent to that of two females. If the children are females numbering two or more, their proportion is two thirds of the inheritance.’’ [30] This is a clear disproportionate share amongst sons and daughters. But what can the law do about it? Well, nothing. Muslims are not subject to the provisions of the Law of Succession Act, period.

Conclusion

The law is everywhere and literally affects everything. It permeates every aspect of life to the point where whenever you peel off the layer of reality, the web of law is just beneath it. One would then ask themselves, where is this law that is said to have far reaching effects when women are being frustrated by men and a society which bows down to customary laws that violate women’s rights? Does it hate women? Is the law a chauvinist? Reflecting from all the assertions made above, it is clear that the issues affecting women are closely related to each other if not intertwined with legal stagnation, attitudes towards women, ignorance of the law and gender insensitivity.

The government has a role to play through legislation in combating the ill and rot in the society levelled against women with regard to succession. Legislation should therefore ensure equality between men and women and create a support mechanism for women’s claims as this is the best approach and solution to the paralysis of desperate women trying to figure out which way to go. It is the best way to understand the contours and cracks of their desperation and suffering. Women should be empowered to demand their rights, they should not wait for things to happen to them, they should be able to make things happen.

BY:
Kayere Ephraim

LAED-Kituo Cha Sheria

[1] See Section 34 of the Law of Succession Act

[2] Section 2 (1) of the Law of Succession Act

[3] Section 32 of the Law of Succession Act provides that ‘’the provisions of this part shall not apply to Agricultural land and crops thereon; or livestock situated in such areas as the Minister may, by notice in the gazette, specify.’’

[4] See Section 2 (2) of the Law of Succession Act

[5] Section 3 (5) of the Law of Succession Act

[6] Section 35 (1) of the Law of Succession Act

[7] Section 4 of the Matrimonial Property Act

[8] See Section 9 of the Matrimonial Property Act

[9] Section 2 of the Matrimonial Property Act

[10] Karanja v Karanja [1976] KLR 356

[11] See the case of Hyde v Hyde [1861-73] ALLER 175

[12] Rono v Rono & another(2008) KLR G & F 803

[13] Re Estate of Lerionka Ntutu, [2008] eKLR

[14] See Section 40 (1) of the Law of Succession Act

[15] Section 6 (3) of the Marriage Act

[16] Section 9 (b) of the Marriage Act

[17] Re Ruenji’s Estate (1977) KLR 21

[18] Re Ogola’s Estate (1978) KLR 18

[19] Succession Cause No. 74 of 1987, Estate of Duncan Kiiru Karuku

[20] Section 40-42 of the Law of Succession Act

[21] Section 52 of the Law of Succession Act provides that, notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular Section 29 and 40 thereof, and her children accordingly children within the meaning of this Act.

[22] High Court Succession Cause No. 231 of 1998

[23] See Article 40 (1) of the Constitution of Kenya 2010

[24] Article 27 (4) of the Constitution of Kenya 2010

[25] See the case of Samson Kiogora Rukunga v Zipporah Gaiti Rukunga 2001 [eKLR] available at http://www.kenyalaw.org

[26] See Article 60 (f) of the Constitution of Kenya 2010

[27] Article 27 (3) of the Constitution of Kenya 2010

[28] See the case of Re Estate Pricilla Wairimu Kamau [2005] eKLR

[29] Section 2 (3) of the Law of Succession Act

[30] See Sura 4 Verse 11 of the Holy Quran

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When he said “I do” he never said what he did…

law opinion

Every one applauded as they were pronounced one.  Her cheeks turned red after the kiss, it was the happiest day of her life. He had stolen her heart, and she had stolen his last name- or at least that is what the wedding invitations said…

The sermon that day was on a successful marriage in the eyes of the lord. “But I want you to realize that the head of every man is Christ, and the head of the woman is man, and the head of Christ is God.’

Power  imbalances among couples does not begin on the wedding day but way before. Transpiring as a result of the power culturally bestowed onto men (and their families), reinforced by religion as seen above, and approved by customs such as the payment of bride wealth. (Dodoo, 1998). These alter the gender dynamics in marital relationships; limiting women’s independence, perpetrating unequal gender power relations and altering sex negotiation capacities.

Dowry payment or bride price-whichever your poison, is a wide spread practice in the African society. It includes the transfer of wealth from the husband’s family to that of the wife .in the past, it was done by delivering livestock as a sign of appreciation for some, or as a symbol of wealth to others, showing that the Man could take care of a family.  Dowry evolved to bride –price and the kind gesture was commercialized as the money system was introduced. Daughters then became investments and wife’s became property.

The bought cannot be in the same position as the buyer. The woman therefore has no much voice especially when it comes to her sexual autonomy. Whenever the husband gets home drunk or sober as long as he is the mood then the wife’s opinion is not held in high regards.  Some will rape as a form of discipline, some to assert their position as breadwinners. All in all bride price payment has a huge role to play. According to Dr. Onyango through bride wealth a man is seen as having paid for the reproductive labor, hence her sexuality itself is bought.

A young lady forced into a marriage because the “rich” husband could pay the price is also vulnerable and will mostly fall victim to marital rape. This is very common in pastoralist communities who instead of taking their children to school will marry them off young. Some to get money to pay off bride-price for their brothers- at the expense of their sisters who are perceived as sex objects to give birth and take care of babies. A woman forced into marriage will not have much control over her sexuality.

Widow cleansing after an inheritance is a very common practice in Africa. Cultural anthropologists emphasize the ritualistic function of widow inheritance. Among the Luo of Kenya for example, it was tradition that when a woman’s husband died, she had to engage in sexual intercourse without a condom with a “cleanser,” often a non-relative of the deceased husband, to remove the impurity she is believed to have acquired from the death of her husband. (Ochalla, 1996).

Husbands in the African context do not see the need for conjugal consent in a marriage. Some will justify with religion, some with cultural beliefs. So Is it really rape when the perpetrator is a spouse?

Rape may be defined as sexual intercourse with a person without their consent. This may be as a result of physical force or threats, or because the person was unconscious or asleep, or because consent as to the nature of the act was obtained through fraud. (Campbell, 1979). It is also rape if the person is mentally incapable of understanding what is being consented to. The defendant must be proved to have known that the person did not consent or have been reckless as to consent.
Campbell further defines marital rape as any unwanted sexual acts by a married partner or a former married partner committed without consent or against that partner’s will. This may be obtained by force, or threat of force, intimidation, or when a person is unable to consent. These sexual acts include intercourse, anal or oral sex, forced sexual behavior with other individuals, and other sexual activities that are considered by the victim as degrading, humiliating, painful, and unwanted.

In 1 Corinthians 7:3-5 it is written that:

The husband should fulfill his marital duty to his wife, and likewise the wife to her husband. The wife does not have authority over her own body but yields it to her husband. In the same way, the husband does not have authority over his own body but yields it to his wife. Do not deprive each other except perhaps by mutual consent and for a time, so that you may devote yourselves to prayer. Then come together again so that Satan will not tempt you because of your lack of self-control.

This may be interpreted to mean that once married, one has no authority over their body.

In the Islamic context It was narrated that Abu Hurayrah (may Allaah be pleased with him) said: “The Messenger of Allaah (peace and blessings of Allaah be upon him) said: ‘When a man calls his wife to his bed and she refuses, and he went to sleep angry with her, the angels will curse her until morning.’” (Narrated by al-Bukhaari, 3065; Muslim, 1436)

This is a hadeeth told, directing a wife to help her husband seek his satisfaction, because a man is less patient than a woman when it comes to doing without intercourse. The most disturbing thing for a man is his sexual impulse, so Islam urges women to help their husbands in this regard. (Adapted and abbreviated from the commentary by al-Haafiz Ibn Hijr – may Allaah have mercy on him – on this hadeeth in Fath al-Baari).

Further According to one law maker during the passing of the Sexual Offences Act he said:

“An activity between a man and his wife in his bedroom cannot within reason be constituted to be rape. Many people believe this is not an African issue. Marriage creates sexual license to each party … that is the license they get by saying ‘I do’.”

The law interpreters have not been left behind as Lord Matthew Hale’s proposition (known as the Hale doctrine) exemplified the same as follows:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

This clearly proves that the mindset is shared by persons from all fields of life to prove that a wife is an inferior being to her husband. The sexual offences act hits the final blow as it states in Section 43(5) that:

‘with regards to claims of sexual abuse such as rape it shall not apply in respect of persons who are lawful married to each other.’

Kenya has one of the most comprehensive Bill of Rights in Africa that has addressed a lot of human rights issues. Article 45 of the Constitution recognizes that parties in a marriage are equal. That means that all things have to be done with the knowledge and agreement of the parties once you get married. Further, Article 29 guarantees all; including spouses, the freedom from inhuman and degrading treatment.

Marital rape is a form of domestic violence often overlooked by the society because of patriarchal ideologies that emphasize male superiority in marriage and stereotypes justifying marital rape. It provides arguments and reasons necessitating criminalization of rape within marriage. Marital rape happens frequently, causing health problems, pain and distress to abused women. Children in households where marital rape occurs often suffer from the psychological effects of witnessing violence, and because it can undermine the ability of their mothers to care for them (Amnesty, 2002)

Marital rape is one of the most under-reported violent crimes because it is socially tolerated. (Mbote, 2000) Some abused women are afraid to report the violence because they rely financially on their husbands for their upkeep and children’s maintenance. Others feel unable to speak out due to fear and humiliation.

The intermingling of traditional and modern meanings of such concepts should not be underestimated nor easily overlooked when addressing the issue of rape among married couples. Research, prevention, intervention, and treatment programs must therefore be sensitive toward culturally appropriate approaches to this issue and must be mindful of the language used to express the various experiences and perceptions in order to gauge an accurate assessment of the prevalence of rape among married couples.

Recommendations

Criminalizing marital rape

There are three options open to the Kenyan legislature. One is by removing the exemption contained in Section 43 (5) of the SOA without additional language. The effect of this would be that marital rape and rape by other perpetrators would be treated the same way. The second option involves enactment of provisions specifically prescribing marital rape, either by specifying that a husband can be held liable for the rape of his wife, or by adding that the fact that the perpetrator is married to the complainant is no defense in a charge of rape. Thirdly, the legislature can enact additional legislation protecting women from spousal sexual violence. However, while criminalization is a necessary first step in the protection of women from marital rape, it is not sufficient as the only remedy. This is because of the inherent limitations of criminal law.

The criminalization of conduct does not necessarily result in change of people’s attitudes towards the conduct.

Judicial intervention

Courts have a primary role in the enforcement and protection of human rights. An active and creative judiciary can be critical in the protection of married women from spousal sexual violence. An important tool at the disposal of the Kenyan judiciary is their power of judicial review which includes nullifying and striking out legislation on the ground that it is unconstitutional. A constitutional challenge may therefore be brought against the marital rape exemption in section 43 (5) of the SOA under the equality and non-discrimination clauses of the Constitution, particularly as they clearly outlaw discrimination on the ground of marital status. From a strategic point of view, bringing a constitutional challenge may be easier than legislative change as litigation would avoid the publicity and likely polarization of legislative reform.

Public education and awareness-raising

There is also need for sustained public education and awareness-raising on the issue of gender based violence with a view to dismantling of gender stereotypes and negative cultural attitudes against women. Both women and men need to be aware of the physical, psychological and economic harms caused by sexual violence at an individual and societal level. It would also be useful to engage traditional and community justice structures in such a campaign with a view to making them more democratic and gender sensitive.

BY;

James Anyanzwa and Kabura Mbiriri

Forced Migration Programme-Kituo Cha Sheria

Supremacy of ‘State operated offenses’ in Kenya

law opinion

Supremacy of ‘State operated offenses’ in Kenya

Chapter 4 of the Constitution of Kenya 2010 provides for a wide range of rights and fundamental freedoms to all citizens. However, most civilians have had to vulnerably dance to the tune of police officers who blatantly violate these rights and fundamental freedoms guaranteed to the unfortunately ignorant population.

These I call ‘state operated offenses’ which are not at all backed by any written laws and therefore not even offenses as such and are unfortunately applied on the public by the ignorant police as well. These are rogue police officers who do not have or even appear to have the slightest idea or comprehension and appreciation of the law of the law.

Various written laws including our very own Constitution promulgated in 2010 and which is the supreme law of the land, the National Police Service Act and even the Traffic Act give specific guidelines and provide procedures to be followed when carrying out of duties by police officers. It is rather sad that these individuals do not even appreciate the principles laws and guidelines that guide and regulate their duties as should be the case.

If you look at Sections 42 and 43 of the Traffic Act, you will clearly see that it provides for a maximum statutory penalty for offenses in relation to speed. For instance the fine for exceeding the speed limit should not at all exceed Kshs. 100, 000. But is that really the case on the ground?

Rule 54 A (1) of the Traffic Amendment Rules, 2009 covers only public service vehicles and taxis. These are regulations on the tinting of vehicle windows. However, the Inspector General of Police had gone ahead to give a directive that all vehicles with tint be removed. This was illegal and the courts clarified the position of the law when Justice Odunga George ruled that the order only applied to public service vehicles.

Is a police officer allowed to enter your vehicle?

Section 117 (3) of the traffic act provides that when a minor traffic offence is committed, the police officer should serve you or the owner of the vehicle with a police notification form charging you with having committed the offenses indicated in the said form. The said form can also be affixed prominently on the vehicle and the act further provides that the charged individual should appear before court within the next 48 hours.

However, this is not the case as many motorists’ right to privacy is violated by the same police officers who are supposed to protect this right whenever they enter their vehicles and literally force them to drive to the police stations over petty and minor traffic offences. This is total intimidation and absolute invasion of the right to privacy as provided for in article 31 of the constitution of Kenya 2010.

The man in uniform confisticated your licence?

One may ask themselves why would I not give him my licence? The simple reason is that the provisions of the Traffic Act do not permit that in all circumstances. section 79 (1) of the Traffic Act provides that ‘where a person is charged with an offence under this act for which the penalty may be or shall include disqualification for holding or obtaining a license, or suspension, cancellation or endorsement of a license, he shall, if he holds a driving license or provisional driving license, produce that license at the time of the hearing to the court by which the charge is to be heard.’

Section 79 (3) further provides that, ‘at the time when a person to whom subsection (1) applies is charged with the offence, a police officer in uniform may demand from that person any driving license or provisional driving license which he holds and if the license is delivered the police officer shall deliver it to the court by which the charge is to be heard.’

The effect of the above provision of the law is that when a police officer arrests you for an offense that does not warrant or whose penalty does not include disqualification or obtaining a license or suspension or cancellation or endorsement of a license, he has no right at all under the law to confiscate your driving license. Well, now you know.

Asked to step out of public service vehicles?

As a passenger in a public service, police officers are not allowed to ask you to step out of the vehicle in the event that the driver has committed an offense provided that the vehicle is roadworthy. The law only allows that the driver pays an instant fine on the spot. However, if the vehicle is carrying excess passengers or those who are not wearing seat belts, then the officers in uniform are within the law to ask you to step down immediately.

Did you pay illegal charges?

Section 106 (1) of the Traffic Act provides that where any vehicle is found in use on a road in contravention of the provisions of this act, or where any vehicle has been left on any road or other public place in such circumstances as to make it appear that such vehicle has been abandoned or should be removed to a place of safety, or where any vehicle has been left on a road in a position which causes or is likely to cause danger to other road users and the owner or driver cannot readily be found, it shall be lawful for any police officer or any inspector to take the vehicle or cause it to be taken to a police station or other place of safety by such method, route and under such conditions as he may consider necessary, having regard to all the circumstances of the case.’

The effect of the above provision is that in the event that you have been arrested by a police officer proceeds to tow your vehicle without your consent then you are not liable to pay towing fees. Many motorist fall victims of this ruthless vice which is perpetuated by the police officers as a means of extortion when they are available and can as well drive their own vehicles to the police station if and when required to do so.

Arrested in a bar?

When partaking of alcoholic drinks in a bar or somewhere in the outskirts of town, you should enjoy you drink in peace. In the event that your den of choice is run by an unlicensed operator, whenever the police storm the place, they are not supposed to arrest you but the owner of the place.

The above can be said to be the interpretation of the Alcoholic Drinks Control Act which provides in section 37 (1) that, ‘’if any person purchases any alcoholic drink from a licensee whose license does not cover the sale of that alcoholic drink for consumption on the premises, and drinks the alcoholic drink on the premises where it is sold, or in any premises adjoining or near to those premises, if belonging to the seller of the alcoholic drink or under his control or used by his permission, or on any highway adjoining or near any such premises, and it is proved to the court that the drinking of the alcoholic drink was with the privity or consent of the licensee who sold the alcoholic drink, the licensee commits an offence.’’ despite the above provision, members of the public have continuously been arrested by the police who extort money from them for partaking in unlicensed bars.

Kayere Ephraim

LAED- Kituo cha Sheria

The Prison Voter Registration Exercise: Observations and Recommendations

KITUO LOGO with Legal Advice Centre

The genesis of the push for voting rights of prisoners began soon after the promulgation of the Constitution in 2010 where in a historic judgement; the Court held that prisoners had the right to vote in the referendum.

As of April, 2016 Kenya had well over 56,000 prisoners most of whom are eligible to be registered as voters. When the IEBC began the voter registration exercise in the year 2012, its main target was to register 18 million Kenyans. But by the end of the exercise on 19th December 2012, they had barely reached 15 million despite the heavy campaign for people to go out and get registered.

This year, the push for registration of the prisoners was spearheaded by Kituo Cha Sheria. A letter was issued on the 25th of January to the IEBC after it was reported by various media outlets that the IEBC had no intention of extending the Voter registration exercise to remandees and the convicted. Furthermore, the IEBC   had not gazetted 118 prison facilities as polling stations for elections and voting. The push for consideration of the prisoners’ voter rights was largely premised on the Constitution.

Article 38 of the Constitution of Kenya provides:

  1. Every citizen is free to make political choices, which includes the right—

-to form, or participate in forming, a political party;

-to participate in the activities of, or recruit members for, a political party; or

-to campaign for a political party or cause.

  1. Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—

-any elective public body or office established under this Constitution; or

-any office  of any political party of which the citizen is a member.

  1. Every adult citizen has the right, without unreasonable restrictions—

-to be registered as a voter;

-to vote by secret ballot in any election or referendum; and

-to be a candidate for public office, or office within a political party of which  the citizen is  a member and, if elected, to hold office.

 It is through this push that the IEBC together with stakeholders such as The National Registration Bureau (NRB) and the Kenya Prisons Service began the process of prison voter registration.

Kituo was able to monitor the week long activity through our extensive Prison Justice Paralegal network ranging from Kodiaga prison in Kisumu, Kakamega Main Prison, Nyeri (King’ong’o) Prison, Meru Prison and at the Coast where we had paralegals reporting from King’orani, Kwale and Shimo La Tewa Prisons.

All in all the exercise ran smoothly. It is in this regard that we, as Kituo wish to commend the government through the IEBC on taking progressive steps towards facilitating the registration of prisoners as voters. However there were some pertinent areas that the stakeholders   involved fell short and which we feel should be publicly addressed.

For instance, there were several instances whereby prisoners who did not have proper Identification Cards were not registered as voters. This left out a large number of potential voters who had other government-issued documents like waiting cards which ideally should suffice as identification and proof of application for ID. This was largely the responsibility of the NRB (National Registration Bureau).

Secondly, the question of which electoral positions the prisoners could vote for came into question. Our position as Kituo is that Prisoners should be eligible to vote for all six positions and not be restricted to any specific vote- the presidential vote.

Finally, there was poor communication between the IEBC, the Prisons Service and the prisons/inmates as to the directive that they would be eligible for voter registration.

In some of our justice centres, no communication had been delivered on the intended exercise. We had to follow up with IEBC regional offices in some areas in order to find out if they had issued such information to the prisons.

It would be important to have the prisons service on board as they have a great role to play in terms of making administrative arrangements that would allow the prisoners cast their votes.

It is in light of the above that Kituo believes that it is imperative that the IEBC must guarantee the participation of prisoners not only upon the prompting of civil society but independently as an institution. A lesson to be learnt from this exercise is that other stakeholders need to be actively involved in time in order to ensure maximum results when it comes to voter registration in Kenyan Prisons.

We at Kituo believe this can only be ensured in the future through a tripartite action plan that includes;

  • Effective voter registration in prisons across the country. Policy guidelines must be put in place for future prisoner voter registration and prisoner information in training curriculums/manuals. This goes hand in hand with accreditation of election officials from gazetted prison centres.
  • Stake holder involvement prior to elections and even post elections. Such factors include The Kenya Prisons Service, Registrar of persons, Civil Society et cetera.
  • Effective communication mechanism regarding access to voter information, documentation and mode of voting and in which polling centres.

The reading of the provisions of article 21 of the constitution shows clearly that the intent of the drafters envisaged that no class of persons should be locked out from participating in choosing a government of their choice. It is the government’s prerogative to ensure that does not occur.

Kituo cha Sheria

We Care for Justice

The Doctors Strike: A Stark Picture of the State of Affairs in Kenya

law opinionProtest is when I say I don’t like this. Resistance is when I put an end to what I don’t like. Protest is when I say I refuse to go along with this anymore. Resistance is when I make sure everybody else stops going along too.” Ulrike Marie Meinhof

It has been over 90 days now since the doctor’s strike began.

That is a short or overbearingly long time to be without public healthcare depending on where one falls on the social class divide- poor or rich which for majority of Kenyans, it is the former.

Kenya boasts one of sub-Saharan Africa’s fastest growing economies and a national budget amounting to well over One trillion Kenya shillings.

In 2015 more than a quarter of that budget went missing entirely and only 1 percent was spent legally, according to a comprehensive audit by the independent auditor general.

Of the amount that disappeared, a substantial amount about Kshs five billion  came from Kenya’s health ministry.

Doctors therefore argue if government officials can swindle that much money, then the government surely can come up with the funds to implement the 2013 CBA agreement.

The Genesis of the CBA…

In 2013, Kenya’s government agreed to increase salaries for doctors, dentists and other medical professionals.

The striking medical practitioners want a 300% pay rise from their current salary of up to Kshs 130,000 and walked of the job in December after the government refused to implement a three year old joint Collective Bargaining Agreement (CBA).

The agreement was also intended to bolster Kenya’s public health system, setting aside money to fund medical research and to provide doctors with ongoing training to improve their skills. It would also create 400 new residency positions, establish overtime pay, create a grievance procedure for equipment shortages, and hire 1,200 new doctors each year for four years to address the severe nationwide shortage.

Over four years on, officials still haven’t begun to implement any of those changes.

Interestingly, during the same years in which the government was deliberating over whether to raise doctors’ salaries, Kenyan politicians voted repeatedly to raise their own. Kenyan Parliamentarians now earn about Kshs 532,000 per month and thousands of shillings more in annual perks. They are the second most highly paid politicians in the world.

There is something unsettlingly dystopian and truly disturbing about a country having both some of the world’s highest paid legislators and doctors who have little to no equipment, medication and facilities. The same could be said for other professions such as teachers, nurses etc.

Is the CBA legally binding?

The argument of the government has been that the CBA is indeed illegal,; that it is yet to be registered.

However, in a relatively recent turn of events, Justice Monica Mbaru declared the CBA binding and asked the parties to discuss Article 4 which had been suspended pending SRC’s evaluation and input whose report is now out. The Court declared the strike illegal, not the CBA.

There was a case before Judge Hellen Wasilwa of the Employment and Labour Relations Court that was brought forward by the council of governors to try and stop the strike, not the validity of the CBA.

The judgement issued on 6th October 2016 directed that the CBA is binding and to be registered as it is after 90 days if the parties involved didn’t iron out the issues in Article 4.

The government appealed specifically against the automatic registration at the Court of Appeal pending hearing and not against the validity of the CBA.

The long and short of it is that the CBA is legal and binding.

Government response to the strike?

The government has chosen a roughly callous approach to attempt to end the strike. From threatening doctors with sacking letters, with-holding salaries and even boldly threatening to import foreign doctors from countries such as Cuba and India.

Union leaders have been jailed for contempt of court. The sentencing prompted the Kenya Medical Practitioners and Dentists Union to say it was calling off talks with the government. Doctors have rejected a government offer of a 40 percent rise, saying it falls short of promises made in a 2013 agreement including staff shortages and a lack of equipment etc.

It is quite unfortunate that such measures have to be resorted to by the government that is knee deep in one financial scandal after another . . . some of which have details as incredulous as public money being carried in sacks and being taken to stone quarries.

Meanwhile, the average Kenyan suffers. . .

Millions of Kenyans have been unable to access care in public hospitals. Several have passed on as a direct result of lack of proper medical attention and access to public health care.

Conclusion

In the current strike, doctors have clearly outlined the benefits of their demands to the general public and the government. These demands include better equipment, training and more doctors for the healthcare sector in the country. Data from the Ministry of Health shows that there were only about 9,734 registered doctors to attend to a population of 44 million plus.

A much bigger responsibility as compared to the WHO recommended standard of one doctor is to 600 civilians.

The CBA will also cover healthcare financing. The National Hospital Funding falls spectacularly short of providing universal healthcare to citizens of this country.

This whole debacle then raises the question; is it not the duty of the government as the custodian of our taxes to provide proper healthcare for its citizens? Is it thus unreasonable for doctors who have shared stories as grotesque as performing surgeries using flashlight, working very late into the night several days a week due to lack of enough personnel; receiving paltry enumeration and little to no equipment  to demand better?

The doctor’s strike ended at the 100-day mark after doctors reached a deal with the government. It is not clear how much of the doctor’s demands were met but dozens died without care during the period of the strike._

By:

Samantha Oswago

AGCP- Kituo cha Sheria.

 

 

 

The untold tales of a refugee…

dadaab

I am a potential refugee…you are a potential refugee…Amina is a recognized refugee living in Kenya, forced by circumstances to flee a place she knew as home a place she identified with the majority, where her skin color was not any different from her neighbors.

As she sat in the screening room soiled, her torn shoes telling the tales of hardships she looked at me and in her eyes I saw remorse, those documentaries on the African child had nothing on what was written on her face. So I quickly introduced myself and when it was her turn she spoke in nostalgia of a time where all she had to care about was getting to school on time and having her homework done. It seemed like ages ago …soon enough her baby’s cry got louder her cracked lips and pale face indicated that she had not had a decent meal in a long time but the baby needed to feed.

I was 15 when we managed to flee to Kenya. My step mother and my 3 younger siblings had just escaped death my step dad was killed by the militia who burnt down our house we managed to escape through the windows my step dad was not so lucky. My step mom knew of a truck driver who owed her a favor; he agreed to get us to Kenya. We were optimistic that it would be a new beginning for all of us; we finally had a sense of safety. I had so many plans maybe I could even go back to school make friends one day I will even start my own family. We had been told of how good life was in the city. The good schools, clean water, friendly people- nothing like in my country.

“Life here is nothing like I expected,” Amina continues explaining now with tears rolling down her cheeks. When we got to Nairobi a well wisher accommodated us for a few weeks we had to pick up odd jobs like doing laundry and cleaning people’s homes with little pay during the day while in the night the master (owner of the house) would call me into his room to…long pause….to clean. She looked at her breast feeding child and again broke into tears at this point I was not sure if she was crying because of her traumatizing past or because the child was suckling on empty breasts.

As soon as the lady of the house discovered of the night escapades with her husband she bitterly kicked us out. Her foster mother hated her for it she was the reason why they slept outside and hungry. She felt disillusioned, hopeless and had no reasons to live. She had to find a solution to the problems. Amina is 17, HIV positive and with child of a man she met once for a few hours in her now routinely night escapades. With her refugee status determination interview in 2019 she had to get creative as being in Kenya was the only durable solution.

This is not just Amina’s story, but the story of many other women. Most cultures have denied women the tools and resources to benefit their well-being. During these times women are mostly vulnerable as the burden of survival mostly falls upon them. They not only have to take care of themselves, but the rest of the family as well.  This is done without much social-economic development since women have not been empowered.

Most urban Refugees have been reported to be commercial sex workers they do this in cities where sex work is both legal and illegal but who can blame them? They need a means to an end. Refugees have restricted access to job opportunities, they experience language barriers, lack of proper paperwork evidencing school graduation or other job requirements (a number of refugees reported that their diplomas and other documentation had been permanently lost, so despite meet­ing educational requirements they were turned away from formal employment).

There are few studies done in this area. The stigma that comes with commercial sex work has led to extensive compromises on the protection of refugee sex workers. Protection from GBV risks has became a nightmare since perpetrators of violence know sex workers can­not officially report violence without fear of being arrested due to the nature of their work, and refugee sex workers not only risk arrest, but also their right to stay in the host country. Where refugees do not speak the language of the host community, they are even more fearful of the police, since if arrested they would be unable to assert their rights or understand what is happening, which creates further avenues for abuse to occur while in detention.

A lot needs to be done to the refugee community and more especially for female refugees. Empower these women; give them access to resources that will help them grow a different set of skills and this can be only be done if refugee woman is involved in decision-making and leadership. Discussions about sexual and gender based within the refugee community provided by organizations also need to be enhanced. However, this can not only be left to few organizations; it is upon each and every one of us who for the refugees- we should all care!

I’m sure you’re thinking-“But why all this concern” because you too are a potential refugee. As you sit there with your spinning chair with that Kenyan flag wristband indicating the love for your country; “hakuna matata” tune playing in your head since you just won your last Sportpesa bet, thinking that this is a non-issue then think again.

Didn’t we just discover oil in Turkana? …reference “the resource curse”; post-election violence, tribal conflicts, Al-shabaab militia et.al now do you care to know who a refugee is? …good; Articles 1 and 2 of the United Nations (UN) Convention and Articles 1 and 2 of the Organization of African Union (OAU) Convention;…a refugee is a person owing to well founded fear of persecution for reasons of race, religion, nationality membership of a particular group or political opinion is outside their nationality and as a result of such events, is unable or, unwilling to return.

#iWelcome

By:-

Kabura Mbiriri

Forced Migration Programme

Kituo cha Sheria.

Prisoners’ right to vote.

prison23‘‘Giving inmates the vote isn’t just constitutionally the right thing to do; it could also help the country solve one of is most intractable problems.’’

The concept of universal suffrage is defined as every adult citizen capable of voting has the right to vote and the opportunities to vote.

One of the most critical ways that individuals can influence governmental decision-making is through voting. Voting is a formal expression of preference for a candidate for office or for a proposed resolution of an issue.

The Universal Declaration of Human Rights, adopted unanimously by the United Nations General Assembly in 1948, recognizes the integral role that transparent and open elections play in ensuring the fundamental right to participatory government.

The Universal Declaration of Human Rights clearly stipulates under Article 21:

Everyone has the right to take part in the government of his/her country, directly or through freely chosen representatives. Everyone has the right of equal access to public service in his country. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures.

Article 38 of the Constitution of Kenya provides:

  1. Every citizen is free to make political choices, which includes the right—
    1. to form, or participate in forming, a political party;
    2. to participate in the activities of, or recruit members for, a political party; or
    3. to campaign for a political party or cause.
  2. Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—
    1. any elective public body or office established under this Constitution; or
    2. any office  of any political party of which the citizen is a member.
  3. Every adult citizen has the right, without unreasonable restrictions—
    1. to be registered as a voter;
    2. to vote by secret ballot in any election or referendum; and
    3. to be a candidate for public office, or office within a political party of which  the citizen is  a member and, if elected, to hold office.

Is this Right Applicable to Prisoners?

The reading of provisions of Article 21 of the Constitution shows clearly that the intent of the drafters envisaged that no class of persons should be locked out from participating in choosing a government of their choice.There can be no selective application of rights when it comes to citizens of a country.

Therefore it is important to ask just why is it even acceptable to question prisoners’, right to vote?It is wrong to perpetuate the view point that prisoners are a qualitatively distinct group of persons in the outside world and that disenfranchisement arising from this false narrative i.e. taking away the right to vote is a just penalty or “retribution’ upon this class of persons.

As of 2009 Kenya had well over 50,000 prisoners most of whom are eligible to be registered as voters. When the IEBC began the voter registration exercise in the year 2012, its main target was to register 18 million Kenyans. But by the end of the exercise on 19th December 2012, they had barely reached 15 million despite the heavy campaign for people to go out and get registered.

The reality that prisoners may have an impact on the outcome of the elections is an argument in favour of allowing them to vote rather than against it. All in all our view is that prisoners should be allowed to participate in choosing their government as they are also affected by it.

Situational Analysis: Kenya

The genesis of the push for voting rights of prisoners began soon after the promulgation of the Constitution in 2010 where in a historic judgement; the Court held that prisoners had the right to vote in the referendum.

The Attorney General and concerned authorities were directed to facilitate accessibility of prisons and prisoners’ identification documents to enable the then Interim Independent Electoral Commission to register eligible prisoners. Prisoners however, did not vote.

This   was subsequently followed by a public interest action by the Legal Resources Foundation   in 2012, enjoined as an interested party seeking orders that IEBC registers prisoners in preparation for the 4th March, 2013 elections.

However, once more, the prisoners did not get to vote as the Court upheld that re-opening registration would have a negative effect on the smooth running of elections.

The court however, faulted the IEBC and other State Organs for not facilitating and promoting prisoners’ right to vote.

Fast forward to 2017 and beyond, it is imperative that the IEBC must guarantee the participation of prisoners.

We at Kituo believe this can only be ensured through a tripartite action plan that includes;

  1. Effective voter registration in prisons across the country; policy guidelines must be put in place for future prisoner voter registration and prisoner information in training curriculums/manuals. This goes hand in hand with accreditation of election officials from gazetted prison centres. [IEBC has since announced that prisoners will only be allowed to vote for the presidential seat as they make proposals for regulation of their participation-31st January, 2016].
  2. Stake holder involvement prior to elections and even post elections. Such players include The Kenya Prisons Service, the Registrar of Persons, Civil Society, et cetera.
  3. Effective communication mechanism regarding access to voter information, documentation and mode of voting and in which voting centres.

Conclusion…

A loss of rights should not be part of a prisoner’s punishment, and removal from society should not entail removal from society’s privileges including the right to vote.

There is no link between deterrence of crime and disenfranchisement of prisoners.

Samantha Oswago.

Advocacy Governance and Community Partnerships

Kituo cha Sheria.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion

Also from my point of view prisoners should be given the right to vote but it should have some measures placed on this. As I believe right to vote is a right not a privilege and people are sent to prison to lose their liberty not their identity. Giving prisoner the right to vote can add to their process of rehabilitation as they will not be alienated from the society which they tend to go back in to once out of prison.

I cannot see a link between deterrence of crime an disenfranchisement of prisoners, as pointed out by the prisoner reform service given prisoners the right to vote can a have a number of advantages also it can save thousands of pounds of tax payers money which the government would have to pay out if they choose not to implement the ruling. As Susan argues that

It is ironic that the Government has declared a commitment to promoting universal suffrage,58 is concerned about underregistration among the electorate, and has introduced a new bill this session,59 which, is designed inter alia to improve electoral registration, but at the same time it continues to exclude convicted prisoners.

 

Know your Labour Rights Vlogs

Are you employed or looking for employment? Then this is for you!

All you need to know about your labour rights!

You may watch your labour rights explained Haki Vlogs HERE>>

 

Types of workers >>>https://www.youtube.com/watch?v=Koh23ked8zA

  • Permanent Worker:
    • you have a written employment contract identifying you as a permanent worker
    • or if you do not have a written contract but you are paid at the end of 30 days.
  • Casual worker
    • You work for a short period of time – usually not more than24 hours and you are paid at the end of each day
    • You have no guarantee of being employed more than 24 hours and you can be dismissed at only one day’s notice
  • Fixed term –contract worker
    • You are employed for one determined fixed period of time which is more than one day
  • Any employment of 3 months or longer should have his/her contract in writing.
  • A worker who does not have a letter of appointment or a written employment contract will find it difficult to prove a right to benefits.
  • Oral Contracts are recognized under the Kenyan law.

Wages and Salary

  • Every worker is entitled to receive full payment for work done
  • In case of summary dismissal, wages are paid up to the date of dismissal
  • Every permanent worker is entitled to housing accommodation or housing allowance.
  • The rates for housing allowance or accommodation can be found on the current Year’s Wage Orders- Google – Kenya 2016 Year’s Wage Orders, click on Kenya Law.Org link and you will find a legal notice on the regulation of wages or click on http://www.africapay.org/kenya/home/salary/minimum-wages.
  • Minimum wage is determined by the job description and region of work. Those working in cities (Nairobi, Mombasa and Kisumu) earn more than those working in municipalities (Mavoko Town Council, Riuru Town Council, Limuru Town Council) and those working in areas that are neither cities nor municipalities earn less.

For example: Minimum Consolidated Wages by Region and Occupation in Kenya with effect from May 1, 2015

Occupation/Grade Region Minimum Wage per hour Minimum wage per day Minimum wage per month
Cleaners, Gardeners, General Workers, House servants, Children’s ayah, Sweepers, Day watchmen, Messengers Cities
(Nairobi, Mombasa and Kisumu)
97.90 527.10 10,954.70
Municipalities, Mavoko Town Council, Riuru Town Council, Limuru Town Council 89.50 484.30 10,107.10
All other areas (neither cities nor municipalities nor town councils) 54.70 296.20 5,844.20

 

What happens when an employer has not being paying minimum wages?

This is calculated based on the minimum wage set for the year. E,g you have a house help and you have been paying her KES 8000 per month since 2013.

Minimum wage for 2013/2014 for house helps was set at:  9785/= . So you owe your house help ( 9785-8000)* number of months worked in addition to her 8,000/= per month salary. In short you need to add him or her KES 1785 on top of the KES 8000 per month for the year 2013/2014.

Minimum wage for 2015/2016 for house helps was set at 10,954/=. So you owe your house help (10,954-8000) * number of months worked in addition to her 8,000/= per month salary. In short you need to add him or her 2954 on top of the KES 8000 per month for the year 2015/2016.

Types of Leave >>>https://www.youtube.com/watch?v=tBoYT9vPFE8&t=29s

Annual Leave

  • Every employee is entitled to at least 21 working days of leave after completing 12 consecutive working months
  • If an employee is terminated after working at least 2 consecutive months , he/she must be given at least 1 ¾ days of paid leave for each completed month of work except if he/she is summarily dismissed.
  • Public holidays and sick leave days are not counted as leave days
  • Some industries e.g hotel and security give workers a leave travelling allowance

Sick Leave

  • A worker who falls ill must inform the employee
  • The employer once informed must provide the employee with proper medical attention
  • After completing 2 consecutive months of work, a permanent worker is entitled to at least 7 days of fully paid sick leave. After that, a worker is entitled to 7 days of sick leave with half pay.
  • To obtain sick leave, a worker must produce a letter signed by a qualified medical personnel.
  • If a worker has an accident at work and the accident is not the worker’s fault , the employer must pay the worker the full salary for the period he/she is absent from work until the worker is certified  incapable of returning to work.

Maternity and Paternity Leave

  • A woman takes 3 months maternity leave with full pay.
  • The female employee must give written notice , no less than 7 days in advance at which date she intends to leave and return to work.
  • A woman who has taken maternity leave cannot in the same year claim annual leave unless the employer agrees in writing.
  • Male employees are entitled to 2 weeks paternity leave with full pay

For more information on your labour rights write to info@kituochasheria.or.ke or SMS 0700777333

Wage Deductions >>>https://www.youtube.com/watch?v=g_ArklYC8F4

If the worker is absent from work without leave, the employer can deduct wages equal to the amount of time when the worker did not work.

An employer may deduct any contributions by a worker to his or her retirement or provident fund.

If a worker loses or damages goods or money at the work place, the employer may deduct the value of the lost goods or money from the worker’s wages

Salary advances or loans can be deducted from wages.

NOTE: An employee may not make deductions form wages as a form of punishment. Moreover, the total amount of deductions shall not exceed 2/3rds of the worker’s total wages.

  • Every employer is required by law to deduct a certain amount to pay the NSSF, NHIF and PAYE.

NSSF

  • Workers save a portion of their present earnings and contribute it to a retirement or pension fund.
  • Any employer with more than 5 employees must make payments to NSSF from his employees wages.
  • To find out how much you should be contributing towards NSSF click on this link : http://calculator.co.ke/nssf-pension-contributions-calculator
  • Casual workers do not benefit from this scheme, so they do not have to pay into it.
  • A worker is entitled to his /her NSSF payments after he/she reaches 65 years old and has retired from regular employment.
  • However a worker can access his/her NSSF contributions before the retirement age by supplying a letter of appointment , termination latter and a declaration that he/she is not able to continue making contributions.
  • A worker who is forced to retire because he /she is suffering any physical or mental incapacity can also benefit from this fund.
  • An employer who fails to make these payments is guilty of a criminal offence and should be reported at the nearest NSSF office.
  • An employee has the right to know if the employer is making NSSF payments and can write to NSSF to confirm.

PAYE

NHIF

  • All workers make a contribution to this fund to offset medical bills when admitted in hospital.
  • Click here http://www.nhif.or.ke/healthinsurance/ to find out how much you should be contributing to NHIF.

Working Hours

  • 8 hours per day except for certain types of workers such as watchmen, herdsmen and caretakers.

Overtime payment

  • This is any period worked in excess of the regular working hours
  • An employer must give 24 hours’ notice for overtime requests
  • A worker cannot be forced to work overtime and should be compensated for any overtime work
  • Overtime= 1 ½ times the worker’s normal hourly rate for any time worked over the normal working hours
  • If overtime is on the worker’s normal rest day or public holiday, overtime pay is twice the normal hourly rate
  • If the worker is not employed by the hour, the basic hourly rate = 1/225 of the employers monthly wage.
  • A worker cannot be asked to work more than 116 hours in any consecutive 2 week period. For night workers it should not exceed 144 hours for 2 consecutive weeks.
  • An employer can offer time off in place of overtime pay if the worker agrees in writing.

For more information on your labour rights write to info@kituochasheria.or.ke or SMS 0700777333

Kituo cha Sheria

We Care for Justice

 

ACTIVITIES DURING THE 16 DAYS OF ACTIVISM

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The 16 days of Activism that started on the 25th of November 2016 is currently on -going and we have a lot more planned during this period.

As of right now we are working with very fun and interesting projects surrounding the 16 days of activism. We are also sharing two videos on rape # take a stand and let’s set the record straight” The clip will feature an explanation on rape and going through different excuses on rape.

We will arrange the following activities during the 16 days of activism

First, we will have Radio talk shows on Jambo radio, Rueben radio and Ghetto radio on sexual gender based violence (SGBV) .The talk show will include guest speakers and Kituo staff talking on how SGBV affects girls’ education.  (Specific dates: TBA)

International day for Persons living with Disabilities

In the interest of mainstreaming and including person with disabilities in our activities; Kituo will converge together with persons living with disabilities on the 9th of December at Mukuru Kwa Njenga to celebrate the international day for person with disabilities. The theme for the day is inclusion matters; access and empowerment for people of all abilities. The day will be celebrated under the Dutch Embassy as the projects targets person living with disabilities. In facilitating access to justice in eviction and sexual gender based violence matters.

Candle light Dinner with Survivors of S.G.B.V

The 14th of December will be the conclusion of the 16 days of activism for Kituo Cha Sheria. On this day we will have an evening candle lit dinner at Amber Hotel in Nairobi as the main event for the Sexual gender based violence survivors, guests and other stakeholders to appreciate and show our support with them.

Except for these community activities the blog will be updated every day on informative posts on SGBV and also documenting our activities during the 16 days of activism. And your activeness in our #IamAware challenge!

#IamAware Challenge

 

violenceKituo wants you to get active during the 16 days of activism. The goal is to spread as much awareness on sexual gender based violence as we possibly can, together.
We are challenging you and your friends to spread awareness about SGBV through social media. The challenge is to upload a Facebook update, Twitter, Ínstagram, a blog post or short videos where you say a fact about SGBV for example saying:
“I am aware that sexual gender based violence has a grave impact on a person´s life #IamAware”
Or
“I am aware that a person who commits rape is liable upon conviction to imprisonment for a term which shall not be less than ten years. #IamAware”
Use the hashtag #IamAware and tag Kituo Cha Sheria so we can see your updates. Here´s the fun part:

We will select a number of articles and photos that will be featured on our Haki blog and Facebook page. The persons will also be invited for a high level dinner on the 14th of December as we conclude the 16 days of activism.

Our objective: behind the #IamAware Campaign is to motivate people to find out more about the issue and impact of SGBV. Secondly, show that we together can learn and spread awareness.
Knowledge is power.
Let´s go and spread awareness together!
If you are not a part of these social media outlets, we welcome you to email us, every contribution counts.
If you have any questions you can email us or just comment below.
Kituo email contacts: info@kituochasheria.or.ke