The question on how to best handle situations where two minors defile each other is a common one in Kituo Cha Sheria’s community paralegals forums. These cases are numerous in our communities. Two minors mutually decide to experiment on sex and when the girl gets pregnant, her parents report to the police and the boy is arrested.
The question on how to best handle situations where two minors defile each other is a common one in Kituo Cha Sheria’s community paralegals forums. These cases are numerous in our communities. Two minors mutually decide to experiment on sex and when the girl gets pregnant, her parents report to the police and the boy is arrested.
Defilement is a crime under the Sexual Offences Act. It is defined as an act which causes penetration with a child. Consent in these cases is immaterial. While this law is aimed at protecting children from predators it does not envisage a situation where two children are involved in sexual activity hence the provisions are applied blindly to both children and adults. As a result, our borstal facilities are teeming with young men serving lengthy sentences for having sexual intercourse with adolescent girls who consented to the act. Not only is it discriminatory to only arrest the boy but also illegal that children get charged.
The Constitution of Kenya provides that a child’s best interests are of paramount importance in every matter concerning the child. Exposing minors to the harshness of the criminal justice system has a lifelong effect on children. Detention affects children’s physical and mental health preventing the enjoyment of their right to childhood, which includes the right to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma. The minors are usually held in facilities that lack adequate staff and infrastructure necessary for life skills training, counseling and other rehabilitative support.
They may face violence and other abuses from fellow detainees and also sexual assault especially when held with adults in police holding cells. Detention stigmatizes them as delinquents and exposes them to others who have committed more serious crimes. It also increases the likelihood of the children breaking the law again. Additionally, having a criminal record in Kenya prevents a person from being employed to work with a child; from holding any position which places him or her in authority; from supervision or care of a child; from becoming a foster parent or an adoptive parent; and from being able to establish a private school.
Non-intervention is the best response especially in non-serious matters or in matters where the family and school are likely to react in a constructive manner. The police, prosecution and other agencies should have discretion to dispose of such cases and divert them to community institutions. This discretion should be at all stages of the proceedings and at different levels of the juvenile justice administration starting from investigation level to disposition. The police and prosecution should be able to divert such defilement cases to community institutions considering the protection of children and the need for proportionality.
The Children’s Act provides for children who should be considered to be in need of care and protection. It includes “a child who is truant or is falling into bad associations; or who is prevented from receiving education; or who is pregnant; or who has been sexually abused; or subjected to FGM or early marriage; or who uses and traffics drugs.” The list does not mention children who defile each other. However, the list provided is not an exhaustive one since the word, ‘including’ is used. Therefore, children who defile each other should be treated as children in need of care and protection and courts should give care, guidance and supervision orders rather than criminal sanctions.
Closeup of two children holding hands – one African American and one Caucasian
In conclusion, there is a need to amend the Sexual Offences Act to deal with the predicament that it created against children. In the meantime, the ball is in the hands of the criminal justice system. The police and prosecution should divert cases where minors defile each other to community institutions like the church and schools. When intervention of the law is unavoidable, the Court should consider both children to be in need of care and protection and grant care and guidance orders.
University of Nairobi egghead, Tom Odhiambo states, ‘indeed, if Kenyans were to remember Moody’s public service in future, his prison reforms will always remain his strongest point.’[1] In his book, Riding on a Tiger, the former vice presidentis rightfully famed for his astute voice and steps towards reforms in prison. The book recounts the systemic challenges he confronted at the time. He is however grateful of the support lent by the then President, Mwai Kibaki and key technocrats in the department. Those in prison at the time felt the difference after years of repression and pain. Courtesy of his interventions, prisons acquired the reflection of reform credentials than punishment centres. Inmates got respectful buses, could engage more freely with officers and opened facilities to more human rights assessment.
Soon after Moody’s progressive involvement, the paralegals at Shimo La Tewa in collaboration with Kituo Cha Sheria successfully petitioned for their political rights to vote. In 2017, inmates cast votes for their preferred presidential candidates for the first time in history of the Republic of Kenya. Despite that stride, the right to vote is yet to be fully realized in prisons. The infrastructure to facilitate this exercise remains inadequate. In the last elections, they couldn’t vote for other seats other than president. This matter needs urgent address ahead of elections in 2022. In the very elections, less than 10 percent qualified to vote. We are at that moment when IEBC in collaboration with Prison department and the National Registration Bureau should initiate the process of raising these numbers.
You may be seeking to know how voting will improve their standing. Like every Kenyan, the right to vote is enshrined under article 38 of the Constitution. The moment a decision to elect other officers shall be made, candidates will embrace inmates’ interests in their manifestos and into the obligatory policies. Discourses on who ends up in prisons, like whether they are only built for poor, yet billionaire thieves continue plundering public resources with reckless abandon shall ensue. It may speak to rate of crime and improve research. In short, engagement in elections will augment their citizenry participation as enshrined in the constitution.
For the last one year, Kituo Cha Sheria has been implementing a project called Njia Za Haki, supported by European Union and UNDP Amkeni Wakenya. It is part of the novel Programme for Legal Empowerment and Aid Delivery in Kenya (PLEAD), a partnership involving Government of Kenya, European Union, United Nations and the Civil Society. It is framed to enhance access to justice for the poor and marginalized strengthening institutions and sensitizing communities. Kituo has been working closely with the prison department, specifically Shimo La Tewa men and women facilities in Mombasa County. This is besides the community justice centres– KICODI and Stretchers Youth Organization in Kisauni and Changamwe respectively.
Arising therefrom, the organization has trained 60 paralegals, 30 apiece in the prison facilities. Good luck, 35 have exited the facilities. These paralegals are inmates with basic education certificates. They can read and write. The training equips them with basic knowledge of the law. The knowledge empowers them to guide fellow inmates, including those under remand. They draft pleadings and ensure their counterparts have the requisite confidence to articulate perspectives in court, more a time, against state counsels. The remandees and those seeking appeals can cross examine witnesses, offer plausible responses and defenses of matters at hand. Paralegals participate with marvelous vigour. Their work is well structured. They write their own reports and update partners on progress. They conduct competitive moot courts for their practice. In the last one year alone, they have drafted 176 petitions, 205 submissions and guided acquittals of 180 persons. In the same duration, 125 sentences were reduced. Kituo forwards stationery on monthly basis, besides the requisite visits to assess progress. This model can work for all prisons in Kenya if the Legal Aid service is facilitated to work in the replica defined under the Legal Aid Act, 2016.
Njia Za Haki has provided an opportunity for partners to seek answers on status of reforms, specifically the matter of the death sentence. You recall, in 2017, the Supreme Court delivered an earthshaking finding. It directed that the mandatory death sentence in the current form be annulled and necessary amendments ensue to the Penal Code. The decision is pending implementation. It is somewhere between the office of the AG and Parliament. While the state agencies remain in the la la land, courts have embraced this precedent. Those who have been in prison for over 20 years, including, under death row are exiting. The chair of the paralegals, Mr. Yusuf Shiunzu equates the judgment to the biblical Paul and Silas.
However, guidelines are essential for clarity. In the current form, there are possibilities of abuse by court and those seeking justice. For instance, at the point of petitioning courts, the positions of the victims are never sought. A report showing extent of progress and reform, from an independent eye are hardly availed or considered. These are gaps that the legislature should be keen to address.
While at it, the Hon. Attorney General and responsible state officers should strengthen institutions of access to justice for the poor. The Legal Aid Service remains hollow with few staff and inadequate funds to run its affairs.
Finally, it is empirical that those exiting Prison facilities, especially those who served long sentences deserve sustainable and practical solutions to avoid recidivism or neglect and subsequent premature deaths. Even though the path to prison reform is still long, it must embrace access to justice for the poor. Let’s continue walking.
Mr. Zedekiah Adika is a program officer at Kituo Cha Sheria and convener of Coast Civil Society Network
“This year, the COVID-19 pandemic poses an additional threat to refugees and displaced people, who are among the most vulnerable. My recent Policy Brief on COVID-19 and People on the Move called on governments to ensure that they are included in all response and recovery efforts”-UN Secretary General, António Guterres
As the world marks the World Refugee Day on 20th June 2020, we need to be cognizant of how the COVID-19 pandemic has impacted refugees and asylum seekers who fall in the category of the marginalized and vulnerable more so those residing within our urban areas. It goes without saying that the novel Coronavirus pandemic has impacted everyone in the world- Kenyans and the refugee community alike. The pandemic has no discrimination. It knows no border, no barrier and no language.
Currently, there are close to 81,000 refugees living in Nairobi. Refugees residing in urban areas largely give up access to humanitarian assistance by multi-agencies that offer financial and material support in the refugee camps. Those residing in urban areas such as Nairobi, Mombasa, and Nakuru are required to be self-sustainable. Most refugees and asylum seekers choose to live in urban centers to access better economic opportunities and social services such as health and education for their families. Some have opened businesses while others have ventured into informal employment so as to sustain their families.
In the wake of the pandemic, the Kenyan government in order to curb the spread of the virus enforced the dusk to dawn curfew. They also enforced the lockdown of Nairobi, Mombasa, Kilifi and Kwale counties as part of stringent measures to curb inter-counties community transmission of the virus.
The enforcement of the strict measures which restricted movement has had a huge impact as it restrained mobility affecting Kenyans and refugees alike- they are not able to pursue their livelihood.
It should be noted that in the course of any crisis or pandemic, there may be numerous violation of human rights including social and economic rights, civil and political rights. As a country we should not forget that these rights are fundamental and need to be respected across the spectrum regardless of the situation being experienced in the country.
Refugee rights also recognize that in the context of serious public health threats and public emergencies threatening the life of the nation, restrictions on some rights can be justified when they have a legal basis; are strictly necessary; based on scientific evidence and neither arbitrary nor discriminatory in application; of limited duration; respectful of human dignity; subject to review and proportionate to achieve the objective.
With the scale and severity of how the pandemic is spreading it is seen as a threat to public health and the government can justify the restriction on certain rights such as imposing the curfew, imposition of quarantine and isolation as well as limiting the freedom of movement. At the same time they pay careful attention to human rights.
Refugees and other persons displaced by conflict belong to the most marginalized and vulnerable members of society. They have had an extremely difficult time adjusting to changing times. Most urban refugees who live in informal settlements have limited access to water, sanitation systems and health facilities.
At the same time, careful attention to human rights such as non-discrimination and human rights principles such as transparency and respect for human dignity can foster an effective response amidst the turmoil and disruption that inevitably results in times of crisis and limit the harm that can come from the imposition of extreme measures that do not meet the above criteria.
The government should ensure that any actions taken or any restrictions imposed concerning COVID-19 are consistent with the forgoing advice from medical and public health officials; and are justified for health and safety reasons.
At the same time, the right to be free from discrimination can be limited under the law, for example, where health and safety risks are serious and would amount to undue hardship, or where actions that appear to be discriminatory can be shown to be reasonable and justifiable.
Some of the rights that may be violated in the midst of the pandemic may include;
RESPECT OF HUMAN DIGNITY
Since the declaration of the curfew by the President to slow down COVID-19 infections across Kenya; there have been reported incidences of lethal use of force by police officers and law enforcement officers. The weapons used under the guise of enforcing the curfew are whips, batons, teargas, and live bullets. Violence has been used to clear the streets, sometimes before onset of the dusk curfew. There have been reports of police harassing individuals and the use excessive force in order to contain the situation. We have had cases where at least 5 deaths have been reported- cases directly linked to the police in enforcing the curfew orders.
Article 28 states that every person has inherent dignity and the right to have that dignity respected and protected. The law enforcement officers should be aware that even in times of such directives the Constitution is supreme. While international human rights law does not prohibit restrictions on personal liberty in times of emergency, it never permits torture or cruel, inhuman or degrading treatment, and always requires any police or military use of force to be proportional, necessary and reasonable.
ACCESS TO SEEK ASYLUM DURING THE PANDEMIC
The closure of the border entry points by the government as part of public health measures in order to contain the transnational spread of COVID-19; while making no exception to women, children and men fleeing threats to their lives and freedom contravenes international law principles of non-refoulement that prohibits countries from turning away people at a border and returning them in countries where their lives are in danger or where they are being persecuted.
The Kenyan government should find solutions that respect international human rights obligations such as right to seek asylum. They can explore medical testing and screening and have quarantine facilities at the border but allow access to asylum as a means of protection for individuals seeking protection of the country.
ACCESS TO INFORMATION AND PARTICIPATION
Everybody has the right to be informed of the threat COVID-19 poses to their health, the measures to mitigate risks; and information about ongoing response efforts. The failure to guarantee this undermines the public health response and puts everyone’s health at risk.
A rights-respecting response to COVID-19 needs to ensure that accurate and up-to-date information about the virus, access to services, service disruptions, and other aspects of the response to the outbreak is readily available and accessible to all.
“Before you judge a man walk a mile in their shoes”
Imagine yourself in this case scenario, where you have gone through school and qualified as an advocate, a doctor or an engineer in your home country, then war breaks out in your country or you experience certain circumstances that would make you fear that you may be subjected to persecution and you have to flee your country of origin and seek asylum.
As is the nature of the above mentioned circumstances, they are unpredictable and the reasons you fled your country is unresolved for a prolonged period. You find yourself in a place of vulnerability and because you have to adopt to this new situation decide to adjust and seek a livelihood in the country of asylum. You are well aware of your qualifications and as a result you start looking for jobs as is required, to sustain you and your family. The first step would be to apply for a work permit.
The process is very difficult and with every attempt you discover that it is almost impossible to obtain one. The system seems to have been designed to place you at a disadvantage despite all the vulnerabilities you already experience. The policy environment is very restrictive.
You come to the unfortunate realization that for the rest of the time you spend in that country of asylum you and your family will only have access to the informal sector, start a business or be condemned to receiving humanitarian aid for the rest of your time in the country of asylum.
Just imagine that! This is the reality of most refugees and asylum seekers all around the world.
Doctors, lawyers, teachers, engineers- persons with varying technical skills- many of whom are now either in refugee camps or stuck hawking in the streets or conducting various small business just to get by.
The Kenyan situation
Kenya’s refugee experience dates back to the early 1970s, when it hosted many Ugandans displaced by the political coups of the time. The influx of refugees into Kenya resumed in the early 1990s, triggered by conflict and insecurity in Somalia, Ethiopia, and the Great Lakes region. Among the refugee population currently living in Kenya- there are large numbers of refugees in situations of protracted displacement hosted by Kenya for more than 20 years; and refugee children who have been born and raised in Kenya.[1]
As such many of the refugees have integrated with Kenyans and have fostered strong relationships. However it seems as if the integration is only social and not economic. The restrictive policy environment surrounding wage earning employment in Kenya has made it almost impossible for a refugee to get a decent job even after years of socially integrating with members of the host Community.
What is even more unfortunate is that refugees, who are forced migrants are treated the same as aliens if not worse and more so when it comes to economic inclusion and access to services.
Article 2(6) of the Constitution of Kenya, 2010 makes every treaty and convention Kenya has ratified part and parcel of Kenyan law and this includes the 1951 Convention, the 1967 Protocol and the 1969 OAU Convention- all related to refugees and asylum seekers.
It is of importance to note that refugees are human beings and are entitled to human rights in international and national legal systems of the host country except with respect to the rights that accrue to citizens only.
Article 17(1) of the Convention provides for wage-earning employment for Refugees lawfully in the country of asylum. Further Article 17(1) must also be read in light of Article 6 of the Convention, which, collectively, requires that refugees lawfully staying and who are entitled to wage-earning employment must be exempt from any requirements to obtain work permits if they are unable to meet those requirements due to the hardship that resulted from their forced displacement.
Traditionally, refugee response actors have intervened primarily through the provision of humanitarian aid. While humanitarian aid has an essential role to play in protecting the physical security of refugees; this alone is not enough. A comprehensive response mechanism must extend beyond short-term needs if it is to enable refugees to rebuild their lives and achieve self-sufficiency during displacement. This is why their access to wage earning employment is necessary.
Unfortunately, it has become common practice in Kenya for refugees to be subjected to the same preconditions to access work permits as those of economic migrants and foreigners which should not be the case because these are people who have been forced to leave their country of origin because of a well-known fear of persecution.[2]
While fully well aware that the right to work is not absolute; the restrictions placed on the refugee applicants is not justifiable in an open and democratic court as indicated in Article 24 (1) of the Constitution of Kenya, 2010.
A brief summary of the application process is that the refugee is required to make an application to the Department of immigration and registration of persons. They do this through submission of a duly filled and signed Form 25 online form which is a standard form for all work permit applications. Further they would be required to present two copies of detailed and signed cover letter from the employer/organization/self, addressed to the Director of Immigration Services, copies of their passport in the case of refugees- this is the Conventional Travel Document, two(2) recent passport size coloured photos (for both new and renewal) ,their immigration status in the country; a valid organization Tax Compliance Certificate for new cases and most importantly a recommendation letter from the Refugee Affairs Secretariat (RAS).
You will note that in the Form 25 one of the questions asked is ‘what steps have you taken to confirm that the skills/qualifications sought are not available locally?”.
This question already prejudices refugees and this is majorly because they are in the country of asylum seeking protection from that particular state. The possibilities of them having the same skill set as the people in the country of asylum are very high. This being the basis of denying them access to wage earning employment is not justifiable as it is almost unattainable. You may find that the only specialised skill would be that they can speak a different language- however this is not enough as we have many Kenyans who are multilingual.
What does this then mean?
This means that many refugees have been cut off from wage earning employment primarily based on the lack of understanding of their specific vulnerabilities and the reasons as to which they are in the country.
If the concerned ministry and government agencies are to understand that there is a very huge difference between refugees and other aliens applying for the work permits; they would feel the need to create specific guidelines that would address this group.
Access to safe and lawful employment is a fundamental human right. It applies to all persons, including refugees and asylum seekers, and with good reason. When permitted to engage in safe and lawful work, an individual may fulfil his or her basic survival needs and contribute to the needs of the family, community and the country in which they reside. The realization of the right is the means through which the individual may achieve a range of other rights, fulfilling the human desire to feel useful, valued and productive.
In the South African Supreme Court of Appeal observed in the case of Minister of Home Affairs v. Watchenuka (2004) 1 All SA 21, per Jugent JA, para. 27 the learned Justice stated:
“The freedom to engage in productive work – even where that is not required in order to survive – is indeed a part of human dignity for mankind is pre-eminently a social species with an instinct for meaningful association. Self-esteem and the sense of self-worth– the fulfilment of what it is to be human – is most often bound up with being accepted as socially useful”.
Furthermore, with the adoption of the 2030 Agenda for Sustainable Development, 193 United Nations Member States- including Kenya- pledged to ensure “no one will be left behind” and to “endeavour to reach the furthest behind first”.
In practice, this means taking explicit action to end extreme poverty, curb inequalities, confront discrimination and fast-track progress for the furthest behind.
People are left behind when they lack the choices and capabilities that enable others to participate in or benefit from human development. This can be due to their experience of:
Absolute deprivation, where they live in multi-dimensional poverty or below other minimally accepted standards of security, income, public services, infrastructure or well-being; and
Relative disadvantage, where they face exclusion, discrimination and/or entrenched inequalities; are less able to gain influence, get an education survive setbacks, acquire wealth, access job markets or technologies; have shorter, riskier lives; rank below median in SDG outcomes and opportunities[3].
With the acknowledgement of the numerous groups in the country that may be left behind, refugees and asylum seekers are still a part of them. Refugees being part of our society for over 20 years we cannot continue to ignore the need for them to earn a living through wage earning employment.
Lack of knowledge and information is a powerful barrier to tackling the disadvantages, deprivations and discrimination that leave refugees out of the job market. The Government has the mandate to manage refugees in Kenya and as such providing an enabling environment for them to access the labour markets through wage earning employment.
In addressing this; the Department of Immigration should look into categorically differentiating refugees from economic migrants not only as to the class of permits issued, but in the administrative process. Asking of new skills being brought into the country by a refugee is asking far too much from a vulnerable population that has been forced to flee their country of origin.
The restrictive policy environment is what leads to the refugee population being over reliant on humanitarian aid and government support and as such it denies well able people to participate in growth of our economy as employers, employees, taxpayers, and innovators.
When refugees work and become self-reliant, the cost to host governments and partner organizations accruing to hosting refugees declines or completely disappears. The more barriers refugees face accessing the labour market; the less they can contribute and the greater the costs to refugees and those supporting them.[4]
Kenya should be reminded that work is an international human right, available to refugees lawfully in and lawfully staying in a country of asylum; and not merely an entitlement that may be extended or withheld as a matter of government policy or discretion.
Advocacy around this area is paramount as we cannot continue to ignore the fact that refugees too are a part of us and they deserve the opportunity to contribute to the economic growth of this country. This year Kenya and the world are reminded that everyone, including refugees, can contribute to society and Every Action Counts in the effort to create a more just, inclusive, and equal world.
#EveryActionCounts
By:
Charity Wangui, Advocate
Legal Officer
Forced Migration Programme -Kituo cha Sheria
[1] Refugees’ Right to Work and Access to Labour Markets – An Assessment*+]Roger Zetter and Héloïse Ruaudel† September 2016
Treasury Cabinet Secretary Ambassador Ukur Yattani Kanacho unveiled a budget of Kes. 2.73 Trillion on 11th June 2020. Out of the amount, Kes. 369.9 Billion was allocated to the counties[1]. The Coastal counties take home over Kes. 37.9 Billion, with Kilifi scooping the lion’s share, almost Kes. 10 Billion. Mombasa on the other hand has projected an expenditure of Kes. 14.6 Billion, with Kes. 5 Billion expected from the depleted local source, Kes. 7 Billion from central Government and over Kes. 2 Billion from grants. In the back of your mind, the Coast has sunk over Kes. 216 Billion since the dawn of the devolved economy[2].
Per se, you would envisage the lives of the Coastal people glowing positive output. It remains a mirage in the current order of events. There have been a number of vital challenges in origination of these budgets. The end product portends little for the common man. Despite laboring the burden of taxation, they remain vulnerable and at risk of death from hunger. Case in point, Covid 19 pandemic and the subsequent begging bowl by both central and county governments. State could not feed its citizens for a week. Notwithstanding the fact that they have paid taxes all their lives. The hope of a salvaging vision to put the projected amount to proper use for the good of the people is hollow.
The hoi polloi have the law on their side though. The constitution of Kenya is replete with articles requiring citizen voices in budget making process. Right from article 1, 10, 174, 201 and more. The very spirit and letter is visited in the Public Finance Management Act 2012, County Government Act 2012, and Access to Information Act 2016, related statutes, case law and policies. The State is mandated to enable citizens’ participation in their affairs.
Devolution of power and resources foresee trickling down effect. The primary focus being the Kenyan at the periphery. It is the hallmark of decentralization as anticipated under chapter eleven of the Constitution and aligned statutes. Power and resources should be in the hands of the people.
The provisions under these laws outline institutional framework and guidelines under which citizen engagement ought to be conducted. For budget process to enjoy the legitimacy of the people, there must be proactive County Executive Committee, vigilant County Assembly, functional County Budget Economic Forum, well-designed Sector forums, facilitated County Administration units where sub county and ward administrators reside. These institutions requires the oiling of essential political will to drive the people’s agenda. We lack in this aspect. The Coastal Counties have proceeded to design budget documents in blatant disregard of these institutional frameworks. For instance, Mombasa proceeded to prepare upcoming budget without a complete functional County Executive Committee. Section 129 of the Public Finance Management Act requires the tabling of budget estimates before a fully-fledged County Executive Committee defined under article 179 of the Constitution. More disturbing is the fact that since 2017, the County has never found it necessary to establish the County Budget and Economic Forum. This is despite the statutory obligation to establish the institution 30 days upon the formation of the County Executive Committee. We therefore formulated five year plan, the CIDP, without such a fundamental institution.
Access to information is another key factor. Article 35 of the Constitution and provisions under the Access to Information Act require state to be proactive in availing to the citizenry. The Public Finance Management Act (PFMA) goes ahead to set dates and procedures of budget making at the county budget. Sections 125 and 126 of the PFMA are notable examples. They outline the formulation, approval, implementation and evaluation of a county budget. These processes require citizen voice, utmost transparency and in sync content.
Currently, the requirements remain in the book. The implementers of the law are rudely reluctant to facilitate Wanjiku’s role in budget making process. Despite rushing to conjure public forums, what happens in those platforms are way below the threshold of public involvement. This financial year illustrates; in the advent of the pandemic, you would expect optimum utilization of online platforms especially social media. Information within the confines of the Coast Civil Society reference group paints a bleak picture to this case. Kituo Cha Sheria conducted an on desk research to establish the extent to which information is captured in the websites of the Coastal counties. They monitored the websites between 22nd May 2020 and 12th June 2020. Lamu has no budget document online for this financial year. Mombasa County Assembly updated their website on 28th May 2020 after the push by the Coast Civil Society Network. This happened under the Governance thematic area. Notably though, this was long after the Budget estimates were passed by the Executive and tabled at the Assembly. The lobby comprising of over 30 organizations represented by Lenggo, LSK Mombasa, Kituo Cha Sheria, Kwacha Africa and Catholic for Peace held a meeting with representatives of the county executive and the county assembly on 28th May 2020. The documents were subsequently uploaded. Consequently, the lobby sought for more time extending the original submission deadline from 2nd June 2020 to 10th June 2020. Kwale County had neither called for the submissions nor provided for modalities of engagement on the Budget Estimates. The documents are missing from their website.
The other three counties, Tana River, Taita Taveta and Kilifi are not pleasantly placed either. The sum total of documents uploaded by at their Executive and Assembly websites cannot support comprehensive analysis and issuance of sublime submissions.
The Counties’ regard to the fundamental process of budget making loathes at the dream of devolution. Little evidence evince to buoy people’s participation. In Mombasa, the Governance lobby unit had to seek an appointment with the speaker of County Assembly of Mombasa to push for copies to be provided to every ward. This is after the Sector wrote a letter calling Assembly back to session. The ‘Waheshimiwas’ had gone home and forgot their central duties of oversight, approval of budget policies, representation and legislation. Civil society had to go on social media to call them out before resumption to duty. It is a clear manifestation of a house out of touch with reality and unworthy of resources invested on them. From this process, the weakness of Assemblies are self-expressive. Their capacity to capture the moment and rise to occasion is uninspiring. They are held captive right from their political parties. The Executive remains in total control. In the advent of the masculinity of the Assembly from the National level, the poor and the vulnerable ‘cannot breathe’. May George Floyd’s soul rest in peace.
Covid 19 has made matters unbearable. Every county took a backseat in the excuse of the anti-gathering regulations. The executives in these counties formulated the budget proposals on their own terms and standards. Yet, due to Covid 19, the voices of the people needed more space for the following three reasons:
One, ideally the budget making process begun in August 2019 when the budget circular was due for release. In September, the Annual Development Plan 2020/2021 was formulated and approved. Allow me to say, in instances where this happened. This plan ought to guide the development plans in the upcoming FY. The circumstances of its creation were oblivious of the pandemic which struck us early this year. We will have to live with the consequences of the same for the next FY. Public input to the Budget Estimates was thus necessary to review development priorities and capture new normal.
Second, there is a dire need to revive economy and to boost businesses in the road to recovery. We missed an opportunity for a vibrant discourse towards resumption of growth.
Third, the mode of engagement have significantly changed with Covid 19. New ideas are emanating albeit with gaps. Social media which is a gem for the youth, doesn’t work for the elderly. Proactively, the Counties had a responsibility to seek innovative ways to touch the Citizenry. May be a blend of strategies would work. It was not the time to completely shut voices. State chose the latter.
The directive by the Ministry of transport requiring all cargo be loaded to the dreaded ‘snake’ (SGR) has led to fundamental economic downturn in the region. All families that relied on clearing and forwarding firms and truck chain businesses remain under economic oblivion. Obviously at the detriment of the region.
While the above point to a bleak future, the road towards change is clear and eminent. The vigilance of the populace remains the sole fulcrum to drive change. It is on this backdrop that Kituo Cha Sheria and other like minded organizations under the umbrella of Coast Civil Society Reference Group are on the road to reinvigoration of the voices of the masses to capture their space. The lobby will rope in key sectors like Business Community; Boda Boda, Matatu Sector, traders – both small scale and large scale, all in their numbers. We will knock the doors of the professional clusters like the Law society of Kenya, teachers, health workers, engineers and Unions in the coast to push state. The religious community of all creed must join the mission. The cancer of State Capture, lethargy in Public service and barefaced corruption must be discarded. Corona or Not, the right to involvement of people and institutional growth must begin in earnest.
Kituo cha Sheria (hereinafter referred to as “KITUO”) is the oldest legal non-governmental organization in Kenya. Its mission is to provide general legal education to the Kenyan people through the delivery of civic education programmes, legal aid, and strategic public interest litigation as well as monitoring the implementation by the State, of the constitutional provisions on human and peoples’ rights through regular research and reporting.
On the 3rd June 2020 the President issued Executive Order No. 1 of 2020 in exercise of powers conferred on him under Article 132(3) (b) of the Constitution which mandates the President to direct and co-ordinate the functions of ministries and government departments.
The Executive Order No. 1 of 2020 is designed to include the Judiciary, Commissions and Independent Offices as government organs to be organized as set out in the order and further as institutions under or functions of ministries, government departments and other constitutional bodies. Like government ministries and government departments, the Judiciary, Commissions and Independent Offices are placed under the control and direction of the President.
We are gravely concerned that the inclusion of the Judiciary, Commissions and Independent offices in the Executive Order, suggests and or creates the impression that these institutions, like government ministries or government departments are under the control or direction of the President.
To the extent Executive Order No. 1 of 2020 purports to empower the President to order and direct the organization of government and thus include the Judiciary, Commissions and Independent offices as some of the functions to be organized, it contravenes the principles of separation of powers and institutional independence.
The doctrine of separation of power contemplates an environment of separation of functions, independence and autonomy of institutions and separation of persons where a state organ does not assume control of more than one arm of Government. The spirit and vision behind separation of powers is that there be checks and balances, and that no single person or institution should have a monopoly of power.
KITUO affirms that Article 160 of the Constitution clearly provides that the Judiciary shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority, including the Executive as the Executive Order purports.
Article 161 (2) (a) of the Constitution, on the other hand, states that the head of the Judiciary is the Chief Justice. It prescribes that the Chief Justice is the chairperson of the Judicial Service Commission as stipulated by Article 171.
Article 249(2) of the Constitution guarantees institutional independence by stating that the Commissions and the holders of Independent Offices are subject to the Constitution and the law and are independent and not subject to direction or control by any person or authority.
KITUO takes cognizant of the fact that ordinary citizens including its clients approach the court, commissions and independent offices seeking justice and services and the impression that the offices are under the control of the Executive will erode the general public confidence in the institutions.
We take the view that for effective delivery of justice and services the judiciary, commissions and independent offices need to enjoy public trust and their authority need to be accepted by the general public. If the general public believe that the decisions of the judiciary, commissions and independent offices are unfair and influenced in any way, then their decisions will lose legitimacy and respect hence undermining the rule of law and the confidence that they can access justice.
It is within this background that we, therefore, assert that the President has no power to coordinate or direct the Judiciary, Commissions and Independent Offices to include: the Judiciary; the Kenya National Human Rights and Equality Commission; the National Land Commission; the Independent Electoral and Boundaries Commission; the Parliamentary Service Commission; the Judicial Service Commission; the Commission on Revenue Allocation; the Public Service Commission; the Salaries and Remuneration Commission; the Teachers Service Commission; the National Police Service Commission; the Auditor-General; the Controller of Budget; and the Director of Public Prosecutions.
KITUO stresses that the issuance of Executive Order No. 1 of 2020 exemplifies a departure from the basic principles of separation of powers and undermines the independence of the Judiciary, Commissions and Independent Offices as guaranteed by the Constitution.
KITUO, therefore, recommends that the Government nullifies and or withdraws the Executive Order No.1 of 2020 for being unconstitutional.
We finally wish to reaffirm our commitment to promote constitutionalism, the implementation of the Constitution and the rule of law and justice to all the citizens of Kenya.
The world has been plagued by a number of epidemics including the Spanish flu, HIV/AIDS, Smallpox, SARs and Ebola. These pandemics have had a devastating impact on the globe both in the number of lives claimed and the ravages wrought to the economies of the world.
The 1918 Spanish flu for example is estimated to have claimed at least 50 million lives with HIV/AIDs having claimed about 32 million globally. The current epidemic had topped about 270, 000 deaths at the time of writing this article. The economies of the world are threatened with collapse with China’s economy shrinking for the first time in 28 years.
Kenya and the COVID-19 pandemic
Locally, even with minimal loss of lives compared to the global statistics, the epidemic has had a devastating effect on our Kenyan economy with Kenya’s GDP expected to contract significantly. To address the economic impact on its economy, Kenya has so far sought from IMF and has been advanced by the institution Kshs. 79.3 billion.
Lessons from previous epidemics
The impact of the COVID-19 epidemic notwithstanding a number of lessons can be drawn from previous epidemics. Lessons on international cooperation and social distancing have been learned as effective measures to slow pandemics. International cooperation between the Soviet Union and the United States during the smallpox pandemic for example was hailed for the eradication of the disease. Previous pandemics may also play a key role in projecting the number of deaths and effect on economies during this epidemic.
Human rights based approaches
As we grapple with the epidemic and learn lessons from past epidemics, the past epidemics also have revealed that it is significant for states to adopt human rights based approaches to effectively combat epidemics.
Lessons from discrimination, stigmatization and criminalization of a pandemic
An investigation of how governments and societies responded to the AIDS epidemic at the initial stages of the pandemic reveal that many people were discriminated and stigmatized on the basis of their serostatus. Those who contracted the disease were mostly shunned by the society and were reprimanded for engaging in risky behaviour. The criminalisation of homosexual conduct and commercial sex work in most laws has been attributed to the restricted access to medical treatment for high risk populations.
For the COVID-19 pandemic, upon the declaration of the curfew in Kenya the police enforced the orders in the most un-proportionate and brutal manner. The brutality by the police was a clear demonstration of criminalization of the COVID-19 pandemic rather than treating it as a health concern.
In fact in the case challenging the curfew order it was argued by LSK and Kituo Cha Sheria that it was erroneous for the state to issue the curfew order under the Public Order Act which is a statute that mainly governs criminal conduct. The COVID-19 being a health emergency then the government should have issued the order under the Public Health Act.
Though the court did not quash the curfew order on the basis of the precautionary principle as a protective measure of the risk of the disease, the court recognised that for the Curfew Order to achieve its objectives and to be embraced by the public it should not be seen as a tool of force but something that aims to protect the health of the people.
The stigmatization of the COVID-19 pandemic in Kenya has been fueled by the forced quarantine, squalid conditions within the quarantine facilities and the requirement by individuals to pay for the quarantine fees. Most of the people who have been sent to the quarantine facilities have felt to be disproportionately targeted.
There is further no doubt that the use of quarantine measure to control the spread of COVID-19 has not been embraced by most Kenyans who view it as punishment. While the quarantine measure may be well intentioned it is obviously clear that the problem is that it is not people driven and its execution has been mismanaged.
The AIDS pandemic taught us that an effective control of the pandemic should recognize the presence of the disease and high risk persons without judgment. The government should then initiate all inclusive, community led campaigns to educate the citizenry to achieve de-stigmatization and tolerance in the society.
The government should also adopt initiatives aimed at curbing spread that are lawful, participatory and that apply uniformly. The International Covenant on Civil and Political Rights (ICCPR) dedicated to various rights requires that restrictions on the rights should be for reasons of public health or national emergency and must be lawful, necessary and proportionate. Restrictions such as forced quarantine must be strictly necessary, apply uniformly and recognizing human dignity.
The South African AIDS pandemic experience in de-criminalizing consensual sex has taught us that stigmatization and discrimination is reduced and in turn encourages access to adequate prevention and medical treatment. South Africa with its laws that abhor discrimination on the basis of sexual orientation remains a perfect example of governments that have overcome the barriers of HIV/AIDS prevention, treatment and care efforts.
There is no doubt then that from the South African HIV/AIDS experience, Kenya can take measures aimed at decriminalization and de-stigmatisation of the COVID pandemic to enhance prevention and treatment. Kenya can further enhance recognition, support and put in place targeted interventions for high risk populations like those living in slums and prisons as a critical measure in curbing the spread of COVID-19.
Conclusion
Finally, the WHO Director-General Tedros Adhanom Ghebreyesus has put it eloquently, “The greatest enemy we face is not the virus itself; it’s the stigma that turns us against each other.”
By: John Mwariri
Programme Coordinator, Legal Aid and Education Department
The COVID-19 pandemic can feel overwhelming to most of us due to new information and caring for your family and yourself. It is important to pause for a moment and collect your thoughts. Remaining calm can help. It is normal to feel stressed or overwhelmed during uncertain times like these. Emotions in response to uncertainty may include anxiety, fear, anger and sadness. Take care of yourself in order to be equipped to help your family and colleagues through this time.
Some simple tips on how to deal with stress and anxiety during this pandemic…
1. Feel free to feel your feelings
You and your colleagues are likely to feel immense pressure given the potential surge in care demands, risk of infection and equipment shortages, among other stressors. Experiencing stress and the feelings associated with it are by no means a sign of weakness or a reflection on your ability to do your job.
2. Intentionally employ coping strategies
Put into practice strategies that have worked for you in the past during times of stress. These can include getting enough rest and finding rest time during work or between shifts, eating meals (ideally, healthy food, on a schedule), engaging in physical activity and staying in contact (with appropriate social distancing) with family and friends.
3. Perform regular check-ins with yourself
Monitor yourself for symptoms of depression/stress disorder such as prolonged sadness, difficulty sleeping, intrusive memories and/or feelings of hopelessness. Talk to a trusted colleague or supervisor. Be open to seeking professional help if symptoms persist or worsen over time.
4. Take breaks from the news and social media
Make a regular habit of stepping away from your computer and smartphone from time to time. When returning online, focus on information from reputable sources, not just sources in your social media feed. You don’t have to take in everything produced by a 24/7 news cycle.
5. Be fortified by remembering the importance and meaning of your work
Remind yourself that despite the current challenges and frustrations, yours is a noble calling – taking care of the most vulnerable in the community. Together, we are all stronger.
A psychologist’s perspective in these COVID-19 pandemic times
A majority of us have had predetermined set schedules an 8am-5pm job with clear lines between our homes and the work place. Since early March, 2020 these walls came tumbling down and no one knows exactly when they will be rebuilt, although we are asked to keep hope alive. The world is faced with a virus so lethal and cruel which has not just put our humanity to test, but also gripped us with fear and lots of introspection.
Man must live! Life must go on! Bills must be paid!
Most importantly we must safeguard our HEALTH as well as look into rebuilding after the turbulence is over. How are we transiting? To what extent has our resilience been pushed to? How is the experience of working from home as foreign as it sounds?
From a mental health perspective experts and pseudo-experts across the world have put forth some recommendations- people are wired differently but here are some cues:-
Drastic changes require drastic adjustments: For most of the people who have always separated the office and workplace function, the sudden shift of the office to your home means re-adjustment to bring the office amenities to the household. Beyond the need for infrastructure (computer, internet); is the need for a quiet working space, and for most people this has become either the dining table or the bedroom but if you have the little running, hyper active and over energized soldiers then your best bet is the bedroom working under lock and key.
Time management is an utmost discipline: Suddenly we all have a lot of time in our hands but confronted with very few options. An old adage goes, to whom much is given, much is expected, and this time we are almost all equally gifted with long extended hours at home. Managing this time becomes critical to achieve an effective work and life or is it home balance. Once we have attended to the work needs, we have been forced to become creative in spending time to make the stay at home interesting.
Technological savviness is inevitable: With the transition almost all services have become virtual, with technology being employed in sharing, meetings, group tasks and even conferences. Suddenly distant IT terms like ‘Microsoft teams, drop box, we transfer, documents collaborations, etc have become inevitable. Needless to say some people are more challenged than others, but one thing that is clear is that we cannot avoid technology. Virtual IT support has become the norm but this means you have to work on the nuts and bolts of learning software yourself. But take it in stride; it’s all in the learning curve!
Work life balance taken literally: For the longest time we’ve been guilty of tossing the statement work-life balance and especially in relation to the family. However the full experience had been limited to the weekends that are further disrupted by personal errands, limiting it to a few hours of interaction. However, the experience of being under the same floor with our families for extended hours- 24/7 is almost surreal. Gone are the days families would exchange small talk and pleasantries between catching up on news, doing homework and having dinner together before catching sleep for a few hours before the routine replays. With no school or much engagement outside, there is all the time and suddenly there is need to have longer and hopefully meaningful and impactful conversations as a unit. Consequently, many people are relearning their children, spouses, and partners and even rediscovering themselves and their hidden talents and gifts, given the time in our hands.
When to hold and when to let go: When initially catching up on the news every second was critically important for most people, as the pandemic evolves, some people have sometimes opted to have a media block. This could be so as to avoid unnecessary panic but also to focus on work or maybe it’s the adjustment setting in, that actually working from home can happen. In the face of such a pandemic, psychologists have advised that keeping off the negative news is important, as it may have negative consequences on your health.
The true value of colleagueship: Once upon a time before COVID-19, weekends and sometimes working away from the office was one of those welcome breaks from sometimes monotonous office spaces with the same people and same vibe. But as the days go by, and with every consultation coming at a cost, and brainstorming sessions having to be pre-planned unlike when you’d just walk up to a colleague to pick their brain on an issue; the invaluable importance of the these engagements is becoming avid. We are slowly learning that the 8 hours that sometimes came across as toilsome, offered a lot in terms of comradeship that we may have often downplayed. Boundaries have not just been challenged but thoroughly redefined.
Health is the greatest wealth; with the globe grinding to a halt because of the virus, there has been great introspection of what ones health and the health of a nation means and the need to safeguard health as the greatest wealth.
As we continue to novel our experiences, we must remain positive and hopeful, because after this tide, we have an opportunity to not just rebuild but to better what we had previously.
Stay close to your normal routine: Try and maintain some semblance of structure from the pre-quarantine days. For those individuals with children, sticking to a routine might be easier; however as you work from home, it could be tempting to fall into a more lethargic lifestyle, which could lead to negative thinking. Wake up and go to bed around the same time, eat meals, shower, adapt your exercise regimen, and get out of your PJ’s. Do laundry on Sundays as usual. Not only will sticking to your normal routine keep you active and less likely to spiral, it will be easier to readjust to the outside world when it’s time to get back to work.
Avoid obsessing over endless Corona virus coverage: Freeing up your day from work or social obligations gives you plenty of time to obsess, and if you have a tendency to consult Google for every itch and sneeze, you may be over-researching the pandemic as well. Choosing only certain credible websites (who.int or Kenyan Ministry of Health or is it Mutahi Kagwe daily briefs??) fora limited amount of time each day (perhaps two chunks of 30 minutes each) will be in your best interest during this time.
A chaotic home can lead to a chaotic mind: With all the uncertainty happening outside your home, keep the inside organized, predictable and clean. Setting up mental zones for daily activities can be helpful to organize your day. For example, try not to eat in bed or work on the sofa- just as before, eat at the kitchen table dining table and work at your desk or an equivalent. Loosening these boundaries just muddles your routine and can make the day feel very long.
Additionally, a cluttered home can cause you to become uneasy and claustrophobic of your environment- so keep it tidy.
Start a new quarantine ritual: With this newfound time, why not do something special during these quarantined days? For example, perhaps you can start a daily journal to jot down thoughts and feelings to reflect on later. Or take a walk every day at 4 pm, connect with your loved ones over phone every morning, or start a watercolor painting which you can add to everyday. Learn a new recipe. Just be innovative….and stay safe!
The article was compiled by Shem Alubala a psychologist at MHPSS- Kituo Cha Sheria with pieces drawn from a number of articles online.
MHPSS:Kituo Cha Sheria and GIZ have worked together since 2017 in providing mental health and psychosocial support to refugees in urban areas through the Mental Health and Psycho-Social support Services (MHPSS) which is under the Forced Migration Program. The MHPSS program at Kituo cha Sheria is part of urban refugee MHPSS working group comprising of UNHCR, RCK, HIAS, DRC, CVT, ReFuShe, NCCK, Hesed Africa, AAA, MSF and REFUGE POINT. The program is also an active member of SGBV (sexual gender based violence) and IPPL (integrating psychosocial peace and legal) working groups. MHPSS’s focus is on refugees and the host community with emphasis on mental health awareness creation, individual counseling, group counseling, community forums, training of key stakeholders like the police, judiciary and other government officials on the mental health concerns among the persons of concern (refugees and host community). In addition, the program offers self-care and team training to the Kituo staff and has been of support to the team in terms of debriefing and emotional support.
Haki Blog-Kituo Cha Sheria 