UN INTERNATIONAL DAY IN SUPPORT OF VICTIMS OF TORTURE

KITUO MARKS UN INTERNATIONAL DAY IN SUPPORT OF VICTIMS OF TORTURE

26 June is the UN International Day in Support of Victims of Torture. This year’s 26 June Global Campaign seeks to facilitate action by local groups and organizations across the world who work every day to support victims of torture and ill-treatment.

Kituo Cha Sheria joins the world to commemorate this International day in support of Victims of Torture and this article seeks to explore the efforts that have been made in the realization of taking human rights approach to issues of Migration and what our Organization, Kituo has been undertaking to advance these interests. Today we commemorate the United Nations International Day in Support of Victims of Torture.

Many torture survivors and their families across the world are forced to leave their homelands to avoid further torture, ill-treatment and discrimination. The journey often brings with it additional trauma and uncertainty, but arrival at an intended or unintended destination eventually occurs – most often in a country close-by, or maybe at a previously unimaginable distance. The new location is away from a familiar way of doing things, a support network, a means of supporting one’s family. Existence is precarious. Torture trauma can make the already challenging task of making a life anew completely overwhelming – even years later.

Equally, many migrants and their families across the world face the threat of torture and ill-treatment in the country in which they settle or pass through – simply by virtue of being a migrant. So often in contemporary society the finger of blame is pointed at the migrant, without it being recognized that they are frequently the victims of torture, rape, enslavement, trafficking and murder.

Since time immemorial, human beings have been migrating in search of better opportunities, pasture and a better life for their families. Each one of us, in one way or the other is as a result of migration.  In my case, my ancestors migrated from the Bahr el Ghazal region In South Sudan. In these modern times people are still migrating in pursuit of a better life however of concern are the cases of forceful displacement due to issues of persecution, conflict, generalized violence or human rights violations. In this article we will talk about migrants to mean refugees, asylum-seekers and stateless people collectively.

“The act of torture supports and encourages a system of impunity. It can take years before the perpetrator is brought to justice, but rehabilitation gives victims the necessary strength to wait for this justice.” – Olga Sadovskaya, Deputy chair of the Committee Against Torture

The United Nations High Commissioner for Refugees (UNHCR) in 2015 estimated that there were 65.3 Million people who have been forcibly displaced and among these migrants, there are migrants who have undergone different forms of torture.  The forms of torture include beatings and starvation, sexual violence, arbitrary and violent detention of Migrants.   The torture occurs in their country of origin, during transit and they continue to experience torture in the countries that they seek asylum. UNHCR estimates among refugees alone between 5 -35 percent are torture survivors.

In their efforts to recover from the different forms of torture, their survival and recovery is further compounded by being far away from their home country, economic difficulties and constant threats of insecurity.

The survivors of torture require a holistic plan of intervention to assist them in their recovery process. The approaches include and not limited to legal, social, medical and psychological assistance and offering livelihood assistance to the survivors. As an organization, Kituo, through the Forced Migration Program has been in the frontline in providing much needed assistance through the provision of legal advice and representation in court and psychological assistance.

One of the concerns of survivors of torture is highlighted in the process of seeking justice and acquisition of legal status. The Refugee Determination Process can be long and strenuous further exacerbating the efforts of asylum seekers and refugees to adjust to their new environment (Host community). Torture victims have a right to pursue justice and throughout this process of legal assistance as an organization we  are careful to offer therapeutic jurisprudential approach where the clients are prioritized as human beings and ensuring that all actors involved will be apply the law in a therapeutic, less harmful  and in a beneficial way. To achieve these recommendations/efforts  Kituo Cha Sheria is actively involved in the training of the Court Users Committees and Government officers (e.g Police) on matters concerning Refugee Law, issues of documentation  and the effects of trauma on the migrants  and improving inhumane conditions of detention or possible torture. All in an effort to improve delivery of services and enhance the human rights of the migrant; Kituo also responds to the challenge of arbitrary detention through conducting frequent detention monitoring in police stations and prisons. Kituo also creates awareness to clients on their rights and creats referral linkages and finally maintaining a positive relationship with the police to ensure in case of an arrest of the persons of concern the organization can be informed and swift action is taken to secure release of the migrant.

Many clients however are sometimes unable and unwilling to pursue legal assistance because they are still grappling with the physical and psychological effects of torture. They have to deal with Post-Traumatic Stress Disorder, depression, anxiety and suicidal tendencies which reduce their ability to reclaim their rights or seek legal assistance. Some of the migrants may be reluctant to report due to fear of negative outcomes such as being detained or deported. They also grapple with fear of shame and stigmatization.  The reluctance to reveal details of their flight when in detention or during Refugee status determination may be construed as a refusal to cooperate; withholding of information or the giving of misleading information by lying. These misunderstandings undermine the credibility of migrants.

The ongoing effects of trauma like constant fear, re-living the traumatic events- flashbacks disables people’s daily functioning and their ability to fulfill even their basic needs. Kituo in efforts to provide relief to the migrants also offers trauma focused psychological intervention as they continue to pursue legal redress. The migrants are also offered information on what other organizations could help to fulfill the other pending and important needs they may have for instance- livelihood assistance.

As an organization that embodies the human rights aspect Kituo will continue to stand with all migrants in particular victims of different forms of torture to ensure that they get justice through advocacy efforts and legal assistance not forgetting the psychological intervention that will ensure the client is ready to take the long journey pursuing justice for their cases.

By:

Jane Corazon

MHPSS-Kituo Cha Sheria

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Kituo Reaffirms Commitment to Safeguarding Refugee Rights in Celebrating World Refugees Day 2019

The world is currently witnessing the worst refugee crisis in history. The number of people fleeing their countries is on the rise, a phenomenal that is increasingly creating social and economic problems especially to the host countries. According to the United Nations High Commission for Refugees (UNHCR) figures, the current refugee numbers in the World stand at 70.8 million people, the highest numbers ever recorded. This has been brought about mainly due to the increased conflicts around the globe.

The 1951 Refugee Convention defines a refugee as one who ‘’owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, owing to such fear, is unwilling to avail himself of the protection of that country.’’

Kituo Advocates after a court representing clients

Kenya is now the second biggest refugee-hosting country in Africa after Ethiopia with the current figures estimated to be over 600,000. The country hosts a large asylum-seeking population due to the country’s location which is in a conflict-prone area. Neighboring countries like Somalia, South Sudan, Ethiopia and the Democratic Republic of Congo have experienced ongoing civil wars that have caused internal and external displacements of their population. While most people fleeing from South Sudan and Ethiopia arrive in the refugee camp in Kakuma, those from Somalia flee to Dadaab, in Garissa County.

Across the world, agencies, both governmental and non-governmental, work tirelessly to help refugees, but with the numbers ever rising, more help and awareness is constantly needed to ensure that refugees are treated fairly and provided for, rather than being neglected or shunned. Most refugees are vulnerable and in need, and are often misunderstood and maligned; and often have very little of the basic things such as food. Most of them however, are not aware of the rights and freedoms they are entitled to as refugees making them even more vulnerable to abuse and mistreatment. Such rights include the right to housing, education, health, access to court services and the right to identity and travel documents. Refugees are also entitled to the freedom of movement within territorial boundaries and the freedom of religion.

Kenya is a signatory to a number of international agreements that are meant to protect refugees and asylum refugees. For instance, the 1951 UN Convention Relating to the Status of Refugees, the 1969 African Union Convention Governing the Specific Aspects of Refugee Problems in Africa compels the government to adhere to the provisions that seeks to protect refugees, including guaranteeing the above mentioned rights and freedoms.

Kenya has also enacted several laws in respect to this, key among them being the Refugees Act, 2006 which mandates the government department in charge of refugee affairs, currently the Refugees Affairs Secretariat to undertake programs that safeguards the rights of refugees.

Kituo Cha Sheria through its Forced Migration Program has over the years sought to safeguard the rights of the refugees. This it has done through intervening in legal problems faced by the refugees especially those residing in urban centers. Such challenges include registration, repatriation, resettlement as well as access to services such as health and education. Kituo has represented numerous refugees in court cases facing them.

It is illegal for the Government of Kenya to send refugees living in urban areas with appropriate paper work to refugee camps, or deport them to their country of origin. However, the government has at times gone against this legal provision and issued statements ordering all refugees to move to camps. This lack of clarity means that refugees in urban areas are often the subject of arrests, harassments and intimidation from both the public and government officials.

Kituo’s FMP, realizing the lack of awareness about refugees’ rights and responsibilities among the refugees, has also sought to provide information on refugee rights by conducting numerous legal awareness forums in different parts of the country. Such forums are usually accompanied with a free legal aid clinic where refugees with different legal problems get a chance to talk to lawyers who attend to them, offering appropriate advice and assistance.

Several landmark court rulings have also been issued after Kituo Cha Sheria’s interventions. Key among them was the ruling which overturned the government’s decision to close down the Dadaab and Kakuma Refugee camps as well as forcing the government to abort its plan to close down the Refugees Affairs Secretariat. This shows just how instrumental Kituo has been over the years in the protection of refugees and asylum seekers’ rights over the years.

On this year’s World Refugee Day, Kituo Cha Sheria joins the world to affirm its commitment to safeguarding refugee rights through addressing legal problems of refugees and asylum seekers under this year’s theme: Step With Refugees. Kituo also believes in the power of information and it is in this regard that the Organization will seek to continue with its awareness programs in the future.

By:

Douglas Mwale

RCKM, Kituo Cha Sheria

Kituo Joins the World to Mark World Refugee Day 2019

Kituo cha Sheria, Refugees and the World are today celebrating the World Refugee Day-20th June, 2019. Under the theme: #StepWithRefugees; Kituo is part of communities, schools, businesses, organizations, faith groups and people from all walks of life who are taking big and small steps in solidarity with refugees.

Kituo cha Sheria’s Forced Migration Programme team.

In a world where violence forces thousands of families to flee for their lives each day, the time is now to show that the global public stands with refugees. This World Refugee Day, Kituo challenges everyone to join together and take a step with refugees. We are part of the movement-everyday, through Kituo’s Forced Migration Programme (FMP); we are devoted to addressing legal and policy needs of refugees, asylum seekers and stateless persons residing in urban areas in Kenya with a view to improving their welfare and guaranteeing access to and enjoyment of the institution of asylum.

On this International day we seek to educate the public on this issue of concern, to mobilize political will and resources to address refugees, and to celebrate and reinforce achievement of humanity- especially in our part of the world. World Refugee Day is observed on 20 June every year to raise awareness about the conditions and problems that refugee face in their lives. This day provides an opportunity to show globally that we all are with refugees. This year specifically, we are taking a step with refugees!

Millions of people are forced to move from their homes every year to keep safe from war, persecution or natural disaster. According to the United Nation (UN) every minute, around 25 people have to leave everything in search for better and safer life. In urban areas in Kenya, Kituo puts her little effort in service to humanity. Kituo in partnership with the United Nations High Commission for Refugees (UNHCR) and the International Rescue Committee (IRC) opened the FMP Branch Office to assist the urban refugees in need of legal protection. The inspiration to start an Urban Refugee Intervention Centre was mooted when Kituo found itself unable to turn away refugees and asylum seekers, who were survivors or witnesses of various human right abuses in their home countries and their country of asylum (Kenya). We are the people’s watchdog over the implementation of the Refugees Act of 2006, to ensure the refugee’s rights under the new law are realized. In addition, FMP advocates for the respect and protection of IDPs rights. We offer a range of services in legal protection and guidance to our clients in the areas of legal advice in all legal issues, legal representation, assisting Refugees in obtaining of work permits, birth and death certificates, Identity cards etc., referral service to our other partners and investigations of systematic Human Rights violations against refugees. We help our target group in identifying and litigating on Public Interest issues touching on refugees, monitoring cases of Insecurity and Gender Based Violence, research, and training on Human Rights and Refugee law.

Today, and every day into the future let us all take big and small steps- in solidarity with refugees. Celebrate the World Refugee Day! #StepWithRefugees

RCKM

Kituo Cha Sheria

Age of Sexual Consent Jurisprudence in Kenya: A Case of the two-faced Janus?


Is it just for a seventeen-year-old to go to prison for having sex with a fifteen-year-old with supposed consent?

While it may be easy to prescribe for this, I guess it is also prudent for the law to protect students from manipulation and sexual exploitation frominter alia their teachers. This situation epitomizes Lord Denning (MR) assertion that while parliament creates in abstract, judges develop jurisprudence from context. The Court of Appeal Judges in the case of Eliud Waweru Wambui v Republic [2019] e KLR had to deal with a conundrum of blanket legislation hence suggesting that lowering the age of sexual consent to sixteen years may be the cure. The Judgement -in part- states that our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years. The wisdom and justice of this unfolding tragedy calls for serious interrogation.

This has however excited the Kenyan psyche attracting both praise and condemnation alike hence the question where should we face? In this article, the author;

  • discusses sexual consent within the legal and social parameters;
  • discusses legislations that  regulate age of sexual consent in Kenya through different prisms;
  • discusses the merits and perhaps demerits  of lowering the age of sexual consent in Kenya; and;
  • lastly,  he discusses a way forward or lack of it thereof.

Age of Sexual Consent in Context

The age of sexual intercourse consent refers to the age at which a country’s law determines when a person can lawfully engage in sex. This is important as engaging in sexual intercourse does not just come with responsibilities but rather it characterizes a society and brings out its values.  The Black Law’s Dictionary defines consent as an approval, agreement or permission as to some act given voluntarily by a competent person. Consent may be given both expressly or implied hence making it a human rights issue. This discussion illuminates two competing ideas that of autonomy on one side and protecting the greatest number of vulnerable people (Utilitarian theory).

There are many countries around the world with no specific age of sexual consent due to diversity however the countries that have this describe it in the negative- that is it is offensive or unlawful to have sexual intercourse with a person belonging to a specific age. As much as most of these countries cling to the age of 16, there are those some who go as low as 12 years.

In Kenya, the age of sexual consent is set at the age of 18 years. This means that anybody below this age cannot materially give consent to sex. While there may be no consensus on this, 18 years may have been arrived at for the fact that it is the age of majority hence autonomy. This parameter is however presently facing a challenge as the practicality of adolescent sexual escapades betrays the law.

What is the law of the age of sexual consent in Kenya?

The Law of Age of Sexual Consent in Kenya

In Kenya, the age of sexual intercourse consent is governed by the Sexual Offences Act 2006, the Penal code and the Evidence Act. The Sexual Offences Act insists that for a person to give consent for sexual activity, they must have agreed by choice and have freedom and “capacity to make a choice.” There are two issues that the Sexual Offences Act insists on when it comes to consent in sexual activity, thus free will and autonomy. The law requires that one has to make a deliberate decision to want to have sex be it express or implied. Capacity on the other hand, implies age (Age of Majority) and the mental ability.

The Evidence Act deals with the circumstances where one can be deemed to have given consent and those that have not. The issue of age is an important matter especially where there is presumption of consent. The Penal Code on the other hand states the presumption of law that a person under the age of 12 is not capable of canal knowledge.

Customary law which is a significant part of the laws of Kenya in accordance with the Constitution of Kenya (2010) is silent on matters of age of sexual consent. As an African society, most communities advocate for sex as a preserve of marriage however, the age of marriage is one that is left in abeyance. While consent may be a requirement for customary marriage, many times age is not a factor.

International law through the Convention on the Rights of a Child (CRC) does not set an age for sexual consent. There is no consensus on the age of sexual consent as much as most countries set it at 16.  The CRC Committee has stated that countries that have ratified the instrument need to have clear laws on the age of sexual consent. It also recommend the same age for both male and female. The CRC committee further notes that, while setting age of sexual consent, maturity and evolving capacity are factors to consider.

Lowering the Age of Sexual Consent in Kenya

Away from the law that stipulate the age of sexual consent at 18, the society seems to have betrayed the law. Statistics from the United Nations Population Fund (UNFPA) indicate that 28,000, adolescent girls between the ages of 10 to 14 years got pregnant in 2016. This is due to a number of reasons including peer pressur, poverty and lifestyle choices.

Evolving capacities as stated in international law is another factor that Kenya may have to consider. There is an argument that girls and boys today mature faster. They get exposed to sexual activity much earlier and it is therefore foolish for the society to remain static. These changes and the sexually energized Kenyan society today has been attributed to a number of factors including social media-perhaps a story for another day!

Reproductive health and access to reproductive health services is perhaps another reason to consider lowering the age of sexual consent. There are issues on the use of contraceptives that are aligned with the subject matter. Proponents of this argument look at issues such as HIV/AIDS infection rates and insist on the need for comprehensive reproductive healthcare.

As stated in the Eliud Waweru Wambui v Republic [2019] case; there is a feeling that there are many victims of blanket legislation in prison. Men who technically got consent but girls didn’t have capacity. Courts in Kenya have been dealing with this for a long time and maybe there is wisdom as much as it may not be perfect.

Those opposed to this move state reasons including morality, ethics and religion. They also state that the laws that do not give capacity to sixteen-year-olds protect them from exploitation. They assert that while not water proof, these laws have a deterrent effect that protects the society. 

Way Forward

Like the mythical Greek god-Janus, this case has put Kenya at a cross roads. The Court of Appeal case has stirred a national conversation that perhaps has illuminated the issue. As much as the argument against the recommendation of these judges is understandable, perhaps their wisdom is unmatched. The world keeps evolving; as so; is the society and therefore the law also needs to keep changing. The age of sexual consent for Kenya should therefore be set at 16 years…but I may be wrong.

By;

Ouma Kizito Ajuong

LLB Hons, KUSOL, Dip. Law, (KSL)

Advocate of the High Court of Kenya

DURESS AND UNDUE INFLUENCE AS LAW ON UNCONSCIONABLE CONTRACTS

DURESS AND UNDUE INFLUENCE AS LAW ON UNCONSCIONABLE CONTRACTS

Unconscionable contracts

An unconscionable contract is unenforceable under the law. This is due to the fact that such a contract is highly one sided and therefore the result is that one party in the contract will suffer unfairness. In most cases, this is occasioned by the substantial bargaining power of the parties where one of the parties to the contract enjoy excess bargaining power while the other party does not.

There are various factors that make a contract between parties become unconscionable. Such factors are like Duress, undue influence unfair surprise, limiting warranty and even unequal bargaining power. This therefore means that if there was any transfer of goods or even money, the aggrieved party may claim the same back in restitution and on the just basis of unjust enrichment. This is however subject to certain defenses that may be brought by the other party.

Lord Denning in the case of Lloyds Bank Limited v Bundy found there to be need to have a general principle to govern this are of law where he termed the concept as the inequality of the bargaining power of the parties to the contract.[1]

This has also been the case in another decided American of Williams v Walker-Thomas Furniture Company. In this case, the court termed the issues advanced by the Plaintiff as one of unconscionability. This is also in line with the findings of the court in the Lloyds Bank Limited case.[2]

In the Earl of Chesterfield case, the court stated that unconscionability may be apparent from the intrinsic nature and subject of the bargain made. The court further stated that the bargain should be such as no man in his senses and not under a delusion would make on one hand and as no honest man would accept on the other, which are unequitable and unconscientious bargains, and of such even the common law take notice.[3]

Duress defined

Duress occurs when wrongful pressure is exerted on a party to enter the contract. The pressure should have the threat of immediate harm if the party under duress fails to comply with the demands of the violating party to enter into the contract.

Duress may also be defined as a threat of harm made to compel a person to do something against his or her will or judgment and especially a wrongful threat made by one person especially in the terms of contract law in order to compel a manifestation of seeming assent by the other person to the transaction without the actual volition of the victim.[4]

In the case of Barton v Armstrong, one of the party to the contract threatened the other with death if the other party did not comply and sign the contract. The effect of such duress was that the privy council set aside the contract on the grounds of duress.[5]

The test for duress in the context of rendering a contract unconscionable has further been reiterated in the case of  Universe Tankships Inc. of Monrovia v International Transport Workers’ Federationwhere Lord Diplock stated that in finding duress in a contract, focus should not be placed on knowing what one is contracting for, rather to the fact that the consent by the Plaintiff was induced by pressure exerted on him by the other party to the contract which is not legitimate pressure before the law. The pressure must however be revocable unless approbated either expressly or even by implication.[6]

Defining Undue influence

This is where a party who is at a position of trust abuses that position of trust thereby taking advantage of the inferior party. This means that there must exist some sort of relationship based on trust between the superior and inferior party.

The court in the Lancashire Loans case gave the example of a contract between a parent and their child. In such a relationship, the parent is definitely superior while the child is the inferior party in the contract. The court further stated that the burden of proof is therefore on the recipient to show independent advice to the donor.[7]

Courts have also allowed the Plaintiffs to seek a remedy in contract law on other grounds. In the case of Cresswell v Potter,[8] the court stated that the Plaintiff satisfied the court that she was poor and ignorant and that alone was enough in the courts view to show that the contract was biased. This is a similar disposition from the above example of a contract between a child and their parent.

In the above case, the court made reference to the case ofFry v Lane[9] where the court stated that equity as a remedy in contract law interferes but in the favor of an expectant heir who is in his youth years or a poor and marginalized person who has imperfect education. The tests for whether there was an imbalance in the bargaining power of the parties to the contract were set put in this case.

It is however very important to note that undue influence doesn’t necessarily need to be direct. In other situations, it may be presumed. This was demonstrated in the case of Barclays Bank plc v O’Brien[10]In this case, the court after examining the fact of the case came to a conclusion that misrepresentation by Mr. O’Brien didn’t make the bank responsible.

In the above case, Mr. O’Brien secured an overdraft using his matrimonial home when his company was doing badly and he needed financial assistance. The same was guaranteed by Mrs. O’Brien who signed a document she had not read after a bank employee made a note stating that Mrs. O’Brien may be a problem when Mr. O’Brien tried to get an overdraft. Later Mrs. O’Brien claimed that she was unduly influenced into the contract and that she cannot have been bound by the contract. The court however rejected this disposition and argument advanced by Mrs. O’Brien. The judge therefore proceeded to order possession of the home.

Does Duress and Undue Influence form the law on unconscionable contracts?

In the case of Cumming v Ince[11], an inmate serving at a mental asylum that was privately owned was coerced into signing away the ownership of her properties to a selected relative under the promise that if she did sign away title to her properties, the order that committed her would be lifted. The court found that the contract had not been signed out of her own will and was therefore unenforceable and was set aside by the court. The contract was therefore unconscionable.

This therefore means that a contract that can be enforced by the law must have been entered into and signed by both parties out of their own free will. Consequently, when the consent is coerced, forced or/and suppressed, the contract automatically and instantly becomes a voidable contract. This cannot therefore be enforced. This position was also taken by the court in the case of Barton v Armstrong.[12]

However, courts are keen to ensure that the coercion, suppression or force are proved. This was clear in the case of Pao On v Lau Yiu Long.[13]The courts will therefore seek to ensure that the person allegedly coerced protested or whether they did not protest at all. It is also important that the courts look into whether the coerced party took steps to avoid the contract after signing and importantly whether or not he obtained independent advice.

Most courts follow the above tests due to the fact that if a party failed to take any steps to avoid a contract that they were coerced into then the party is deemed to have accepted the terms of the contract irrespective of the fact that there may actually have been duress into entering the contract.Such a party to a contract will therefore be restricted from changing their mind at a later stage of the contract execution.

Initially and in the early days, duress was only recognized by the courts when it affects the person themselves. This was not the case when it concerned property. In the case of Skeate v Beale[14] the court declined to set aside the contract. In this case a landlord threatened a tenant that he will levy duties if the tenant failed to pay the debt owed. The tenant proceeded to pay part of the amount and further gave a promise to pay the balance in a period of one month. The tenant was unable to keep the promise when the period lapsed. The landlord therefore proceeded to bring a suit against the tenant and the tenant pleaded duress. The court declined and refused to set aside the contract. The court held the position that the threat was not to the person but to the goods and therefore the Defendant cannot sustain the defense of duress.

Conclusion

Based on the above illustrations and precedent, it is correct to state that duress and undue influence for the law on unconscionable contracts. The position of the courts should therefore be that where there is evidence or it can be proved that one party to the contract is in an influential position, then that party must bear the burden of proof to prove that the contract was signed absolutely on a voluntary basis by the weaker party and that there was no element of duress or undue influence.

On the other hand, I totally agree with the positions and decisions the courts have made before of ensuring the party suffering a suit or an action is also protected. This is by ensuring that the party claiming duress or undue influence made the necessary steps to avoid the contract when they first suffered duress or undue influence and even protested at the initial or latter stages of the contract.

Once the aggrieved party to the contract is able to demonstrate the above, then it would be fair and just that they be allowed to fully recover any money paid in advance in the course of the execution of the contract due to the fact that the same was payment made without the will of the aggrieved party and in an environment of economic pressure.

On the contrary, another important thing that must be noted is that if a party to a contract is aggrieved in the course of the exercising a right by the other party then undue influence and duress cannot be pleaded. This was demonstrated in the case of Hassanali Issa & Co. v Jeraj Produce Store.[15]In the above case, repairs were done by a store owner to a bike. The store owner thereafter kept the bike waiting for collection of the same by the owner of the bike. When a bill was issued to the owner, he protested the bill but later issued a cheque which he again cancelled immediately after the collection of the bike.

When an action was brought against the bike owner he claimed the cheque was issued under duress. The court held that there was no duress and that the store owner was simply exercising lien over the bike pending the payment of his dues. This case therefore sets it clear that in exercise or a legal right then the aggrieved party cannot claim/plead duress or undue influence.

By:

Ephraim Kayere

Kituo Cha Sheria

Bibliography

Black’s Law Dictionary, [8th Edition, 2004]

List of cases

Barclays Bank plc v O’brien [1993] UKHL 6

Barton v Armstrong [1976] AC 104

Cresswell v Potter [1978] 1 WLR 255

Cumming v Ince [1847] 11 QB 112

Earl of Chesterfield v Janssen [1751] 28 Eng Rep 82, 100

Fry v Lane [1888] 40 Ch D 312

Hassanali Issa & Co. v Jeraj Produce Store [1967] EA 555

Lancashire Loans Ltd V Black [1934] I KB 380 404.

Lloyds Bank Limited v Bundy [1975] QB 326

Pao On v Lau Yiu Long [1980] AC 614

Skeate v Beale [1840] 11 AD & EL 983

Universe Tankships Inc. of Monrovia v International Transport Workers’ Federation [1982] 2 AII ER 67

Williams v Walker-Thomas Furniture Company [1965] C.A D.C 350 F.2d 445


[1]Lloyds Bank Limited v Bundy [1975] QB 326

[2]Williams v Walker-Thomas Furniture Company[1965] C.A D.C 350 F.2d 445

[3]Earl of Chesterfield v Janssen [1751] 28 Eng Rep 82, 100

[4] Black’s Law Dictionary, [8th Edition, 2004]

[5]Barton v Armstrong [1976] AC 104

[6]Universe Tankships Inc. of Monrovia v International Transport Workers’ Federation [1982] 2 AII ER 67

[7]Lancashire Loans Ltd V Black [1934] I KB 380 404.

[8]Cresswell v Potter [1978] 1 WLR 255

[9]Fry v Lane [1888] 40 Ch D 312

[10]Barclays Bank plc vO’brien [1993] UKHL 6

[11]Cumming v Ince [1847] 11 QB 112

[12]Supra n 5

[13]Pao On v Lau Yiu Long [1980] AC 614

[14]Skeate v Beale [1840] 11 AD & EL 983

[15]Hassanali Issa & Co. v Jeraj Produce Store [1967] EA 555

Tax Relief Regulations for Persons Living with Disabilities (PWD’s) are Simply Unconstitutional


I would like to begin this paper by stating a few irrefutable facts. Firstly, persons living with disabilities (herein PWDs) form a small but significant segment of Kenya’s population. While the numbers 1.3 million; 3.5% of Kenya’s population; (Census 2009) explain the “smallness’’, their significance springs from values of human dignity, legal trends today and best international practices. Secondly, contrary to popular conceptions, disability is for everyone.

As much as policy makers and legislative drafters like to think of disability laws as “special laws” for a few people, they always forget the obvious nature of disability. It never comes by invitation. Disability does not knock or choose.  Lastly, it is important to say that as much as tax relief is a privilege, it is not a favor from the State, it is a constitutional right. Those who write tax relief regulations or policy should therefore not behave as if they are doing charity work. It doesn’t make sense that something meant to make life easier for PWDs, has made things even harder.

I am not in any way suggesting that tax relief for PWDs should be done without regulations; I am of course in support of protection of the intergrity and sanctity of the programme, however, regulations that primae facie exhibit stupidity, ignorance and meant to strain  already strained people do not in any way enforce the aforesaid  values. It is premitivity and lack of wisdom that makes one to write regulations that requires PWDs to move back and forth from their employers to the council of persons with disabilities, to the Ministry of Health while ignoring mobility challenges in an era of Huduma Centers. It is preposterous that these regulations require PWDs to go for medical assessment every time they need to renew tax relief certificate as it ignores PWDs with permanent disabilities. This is to say that PWDs with albinism will grow melanin or that amputees will grow limbs within five years of tax relief? The long time it takes (about 4 months) to process tax exemption certificates adds to the illogical and disturbing culture of peripheral treatment of PWDs as aided by these regulations.

My focus however is to demonstrate how these regulations offend the letter and the spirit of the Constitution of Kenya (2010). It is important to note that one of the pillars of the Constitution of Kenya (2010) is elevation, protection and respect of human rights.  It has even gone further to incorporate international norms and instruments in this regards.

The Rights of PWDs are therefore not just given prominence through Article 54 of the Constitution of Kenya (2010) but domestication of   UN International Convention on the Rights of PWDs and its protocols and interpretation of Articles 2(5) and 2(6) of the Constitution of Kenya 2010.

Before I get to the unconstitutionality of tax relief regulations, I would like to define disability from the lenses of the Constitution of Kenya 2010. Article 260 defines disability to include, any physical, sensory, mental, or psychological impairment, condition or illness that has or is perceived by a significant sector of the community to have a long term effect on an individual’s ability to carry out day to day activity. Affirmative Action on the other hand means, any measure designed to overcome or ameliorate an inequality in the system, denial or infringement of a right or fundamental freedom. This therefore means that PWDs are disadvantaged and affirmative action comes in to try and mitigate the situation hence tax relief. How are these regulations unconstitutional?

Economic Rights Perspective

The preamble of the Constitution of Kenya 2010 makes a promise of nurturing the well-being of individuals. Well-being from PWDs point of view is that they should be able to get basic needs and economic empowerment. The difficulties and unique challenges that PWDs go through in school or at work places should not be lost on anyone. It is out of these that they are entitled to tax exemption.  These regulations negate, as oppose to acting as a hand-maiden for this programme. When PWDs are made to go through a winding process between the doctors to the tax man to their employers and a cosmetic disability council, it results to denial of economic rights. It does not make sense that getting a tax exemption certificate takes up to four months. The saddest part of this is that as they struggle to get the certificates or renew them; employers are always happy to tax PWDs. If I did not know any better, I would call that a conspiracy to commit theft by the State.

Right to Human Dignity

The Constitution of Kenya (2010) requires that human worth be respected and protected. Article 28 of the supreme law states that the right to dignity is inherent. As much as the definition of human dignity is amorphous, it boils down to the sense of “humanness.”  

PWDs in Kenya have to deal with issues of dignity and self-worth in an environment that is disability unfriendly.

Asking PWDs who are visually impaired or have mobility challenges to submit their documents and follow up on them; in disability unfriendly buildings like the one that houses the Ministry of Health is not a breach of this right but a disgrace. I am also concerned about the back and forth movements from the employers to the tax man to the Ministry of Health keeping in mind Kenya’s chaotic public transport system. I look at this as very slow thinking from the persons concerned and a disregard of a constitutional principle.

Right from Discrimination

The Constitution of Kenya frowns upon any form of discrimination. Article 27 (4) states that it is against the aspirations of Kenyans to discriminate against anyone – directly or indirectly. Do the tax relief regulations discriminate against PWDs? The simple answer is yes and I will explain. I go with the legal maxim that whoever alleges must prove, but how many times should they be made to prove their disability. A regulation that requires all PWDs to go for medical assessment every time they want to renew their tax relief certificate is discriminatory at best. Making the process too complicated also amounts to putting PWDs on the spot which is discriminatory. I see this as inadequate use of common sense and an attempt to resist creativity from the State.

Rights to Affirmative Action

The Constitution of Kenya (2010) through Articles 27 (5) and (6) recognizes affirmative action- tax relief for PWDs is one such action. The law puts only one condition- it has to be on genuine need. This means that any legislative or regulatory body has the duty to promote the programme and not kill it. When regulations are so stringent to the point that they make other PWDs give up on the process, they breach these provisions.

In Conclusion

As I have stated before, as a lawyer I was taught that the rules of procedure are made to be hand maidens. This means that they need to help substantive provisions. Tax relief regulations for PWDs as presently constituted and enforced are but a mockery to this.

There is need to urgently change this situation and I have a few recommendations:-  

There is need for legislative interventions. I am calling for an amendment of the Persons Living with Disability Act. The Act needs to give parameters to the regulations in line with the challenges and realities of PWDs in Kenya today.

There is need to mainstream the process so that it is faster and easier fop ;PWDs. One stop shop like Huduma center where PWDs can get everything done may be one quick solution.

Even as Kenya prepares for a census in 2019; there may be need to invest in a data base with information for PWDs. Those with permanent disabilities may be registered once to avoid redundancies and bad jokes currently encountered.

By:

Ouma Kizito Ajuong

Advocate   

SUCCESS STORY FROM KAMUKUNJI COMMUNITY JUSTICE CENTRE – JOSEPH ONYANGO

Success Story: Joseph Onyango
J
oseph Onyango approached the Kamukunji Community Justice Centre (KCJC) seeking legal advice and possible representation regarding a succession matter in his rural home in Siaya County. Mr. Onyango was a founding member of KCBONET, a local Community Based Organization which is the host entity of the Kamukunji Community Justice Centre. He was therefore not new to the work undertaken by the centre. He sought legal assistance on a succession matter undertaken in 2013.

As a resident of Majengo, Nairobi, Mr. Onyango was not aware of the process of succession that was initiated and completed illegally by a member of his family of seven brothers. The area land registrar undertook sub-division without consultation and disinherited some members of the estate. In December 2016, with assistance from the justice centre coordinator Mr. Ezekiel Njenga; Mr. Onyango started the journey of correcting an injustice. They revived and followed up the case at the Siaya and Kisumu Law Courts, for three years they together uncovered a lot of misinformation, lies and forgeries in the succession documents used including fake names and signatures.

Their hard work paid off when the Confirmation of Grant was issued by the Court sitting in Kisumu for the Estate of Mzee Obaki to be re-distributed correctly and involve all members of the Estate. The Court issued orders for the title deeds to be surrendered to the land registrar. The succession process will kick-off on the 31st of January, 2019.

Mr. Onyango says he’s been helped a lot by the community justice paralegals and while the process has been long the family has got another opportunity to do the right thing and be mindful of all family members.

RCKM

Kituo Cha Sheria