Prisoners’ right to vote.

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

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

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

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

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

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

Article 38 of the Constitution of Kenya provides:

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

Is this Right Applicable to Prisoners?

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

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

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

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

Situational Analysis: Kenya

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

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

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

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

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

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

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

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

Conclusion…

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

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

Samantha Oswago.

Advocacy Governance and Community Partnerships

Kituo cha Sheria.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion

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

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

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

 

Extra-judicial killings and enforced disappearances in Kenya;knee jerk reactions and their futility.

willie-kimani-protests“It used to be that a man could keep out of trouble if he behaved himself. Now he will only keep out of trouble if he behaves himself, (and) if the police behave themselves . . . . ..” 
― 
Agona ApellThe Success Genome Unravelled: Turning Men from Rot to Roc

It is a pattern often seen many a time before.

Abductions, mysterious disappearances/imprisonment often followed by the death of certain individuals in jaded and grey situations. The public is outraged. The media is attentive to every detail of the latest disappearance/extra-judicial killing. Task forces are formed, the police are indignant in the defense of their integrity. Finally, the matter is laid to rest, the death becoming little more than a statistic.

The latest death that prompted exceptional rage involved the shooting of a city High Court advocate.Willy Kimani was representing Josephat Mwendwa,a motor cycle taxi driver who had filed a complaint that he had been shot and injured by police in April of this year.

Following the complaint, Mwendwa was subject to extreme harassment by the police. Finally, as has happened countless of times in this country to persons critical of the government and the police, he “disappeared” alongside Willy Kimani and a Taxi Driver who had picked them up on 23rd June 2016, after attending a court hearing in Machakos County, on the outskirts of Nairobi.

Witnesses said they saw the lawyer and his client in a basement cell of a local police station shortly after the hearing. They Disappeared.

The audacity of the police in picking up the lawyer and his client right outside the court house in the brazen manner in which they were taken into custody speaks volumes about the situation in our country as far as extra-judicial killings go.

Are there plausible solutions?

  1. The carrot – Stick Approach.

“The British have been funding police reform in Kenya since the early 1990s. They have been pumping money in for that long and had no results and. . . That risk simply strengthening the culture of impunity. You can’t keep on giving carrots. Eventually you need a stick.” Maina Kiai, Human Rights Lawyer.

Perhaps it is time donor countries and groups that financially support the Security Forces in this country develop a firmer system of accountability whereby results are coherent and visible. A good example would be the British Government that has been supporting the Kenya Police to promote Police Reform and strengthen accountability and improve compliance with international human rights standards.

The United Nations has also extensively supported police reform projects in the country. It is not however, an effective method of achieving the same without demanding some sort of visible change. It would seem to the outside eye that things have inadvertently gotten worse. It should be a give and take sort of relationship.

  1. Strong governmental support.

In more mature democracies, Cabinet Secretaries resign voluntarily whenever their leadership comes into public question. One can hardly say the same for most African nations, Kenya included.

The current Cabinet Secretary in charge of security affairs and others before him have constantly derided the need for reform, casually chiding any instance of Police Enforced deaths and Disappearances with the phrase “investigations are on-going”. They seem to go on with no result in sight in every single instance.

Therefore it would almost seem that these extra-judicial killings and sudden disappearances do indeed have the backing or rather the acquiescence of the Executive.

The president also has a role in that under the constitution, the president has the power to dismiss an incompetent Cabinet Secretary. This is after the convening of a select committee of the National Assembly and its finding of sufficient grounds of dismissal. So why isn’t it happening already? That is a question that begs an answer.

The International Criminal Court had remarked, in the recently concluded cases against the President and the Deputy President that the level of government interference was unprecedented.

Witnesses were brutally intimidated and many were forced to recant their statements, others being found dead.

Without the government’s commitment and good will very little can be achieved. .and the status quo shall remain. Worst case scenario, it may get even worse than it already is if that is even possible.

  1. Structural reform.

Reform must be visible, and that means the clinical approach to removal of bad apples within the security forces….starting from the lowest level officer to indeed the inspector General himself.

The grounds for the removal of the Inspector General are clearly set out in the constitution. Most grounds are based on the central theme of misbehavior. However there is one specific ground that reads “any other just cause”. This implies that something as serious as the topic of discussion in this article is a sufficient reason for the removal of the current Inspector General.

With regards to the specific officers involved in such actions, It is not enough for the public to hold trials on social media and the Police Department to perform public relations stunts. There must be tangible action. By tangible I mean trials of the officers involved in such offences. Their dismissal or suspension and if possible, use of their own private funds to compensate the families of the victims involved. All this must be in public as it will act as a deterrement to all rogue officers and that it can no longer be business as usual.

Kenya is not police /military state. The Security Forces are servants of the people and should not be at war with them. There is still hope. However, change must be prompt and swift…with the goodwill of the State.

Samantha Oswago

LAED-Kituo Cha Sheria

Mandatory anal examinations in Kenya; Outdated and Horrific

Opinion

A Kenyan Court ruled that the use of anal examinations is legal after two men accused of being homosexuals were subjected to the tests. The two men had brought a case to the High Court in Mombasa on Thursday, 16th June 2016 calling for anal examinations on alleged homosexuals to be declared unconstitutional.

“There was no other way evidence could have been obtained “ruled Mombasa Judge Matthew Emukule.

“I find no violation of human dignity, right to privacy and right to freedom of the petitioners”, said the judge.

In the case before the high court in Mombasa, Kenya, two men identified in the petition as C.O.I. and G.M.N., allege that doctors at Mombasa’s Coast General Provincial Hospital, in collaboration with law enforcement officials, violated their rights by subjecting them to forced anal examinations, HIV tests, and other blood tests in February 2015.

Judge Matthew Emukule at the High Court in Mombasa ruled on 16th June 2016 that there were sufficient grounds in Kenyan law for using the examinations to gather medical evidence of crimes including rape and sodomy, which are illegal in the country.

The petitioners have filed an appeal against the judgment.

The Law and Homosexuality.

In Kenya, where homosexuality is criminalized, men suspected of same-sex conduct are subject to non-consensual anal examinations intended to obtain physical evidence of homosexuality, a practice that is essentially medically and forensically worthless and has been dismissed as such in UN Documentation. Both the Independent Forensic Expert Group (IFEG) and the International Rehabilitation Council for Torture Victims have condemned the practise.

Decreased anal sphincter pressure, which is what such exams are looking for, can be caused by a wide range of conditions from chronic constipation and irritable bowel syndrome to Parkinson’s disease. Therefore this form of examination cannot be used as a basis for proving Homosexual sexual relations.

The law provides in sections 162-165 of the Penal Code, that private, consensual homosexual sex between adults or attempts thereof, is punishable with up to 14 years in jail.

However;

Forced anal exams violate the Convention against Torture, the International Covenant on Civil and Political Rights and the African Convention on Human and Peoples’ Rights, all of which are treaties that Kenya has ratified. Additionally, under international law and Kenya’s Sexual Offenses Act, any form of unwanted penetration during the examinations constitutes sexual assault and possibly rape.

The UN Special Rapporteur on Torture states that these exams amount to “torture or ill treatment ’’and may be considered a form of  sexual assault  and rape.

Furthermore, in April 2015, the High Court ruled that sexual orientation is constitutionally protected from discrimination and ordered the NGO Board to register the National Gay and Human Rights Commission.

Whether this law should be repealed remains a matter of public debate. It is important to note that laws were made by the societies they developed in, and not the other way around. Ours is not to berate the law as it stands, but to condemn the application of forced anal examination. It is horrific that such intrusion of another’s person still takes place under the guise of the law.

The very fact that multiple people were allowed to violate another human being in such a manner is unacceptable. The issue here is much larger than an instance of the “pro-gay agenda “as many have wrongfully labelled it. This was clearly a gross human rights violation.

Retrogressive ,homophobic practise

The fact that the Courts have decided to validate this violent practice is woefully unfortunate. It is retrogressive and is indeed a misguided step in the wrong direction. The violation of human dignity in this unfortunate scenario is not a matter of JUST sexuality .It is a matter of one thing all human beings are entitled to inherently by virtue of being human. Those are human rights.

Still, we have noted that the terror, fear and discrimination continues unabated even against the ruling in April, when the High Court was asked to cure the mischief in our laws, to stop pruning the branches of the poisonous tree and simply uproot it all together. The High Court being responsive ruled that sexual orientation is constitutionally protected from discrimination.

By

Samantha Oswago.

LAED-Kituo Cha Sheria

 

 

 

 

 

 

 

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

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

Section 12 of the Births and Deaths Registration Act Unconstitutional

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

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

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

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

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

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

The spirit of the Ruling

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

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

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

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

Does this ruling support fraud?

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

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

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

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

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

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

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

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

Rape and Defilement

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

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

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

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

By

Samantha Oswago and Wangari Karige

LAED-Kituo Cha Sheria

 

Can the sexual assault of children be Compartmentalized: An introspective analysis of the ruling in Martin Charo V. R No. 32 of 2015.

“In order to escape accountability for his crimes, the perpetrator does everything in his power to promote forgetting. If secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure no one listens.”
― Judith Lewis HermanTrauma and Recovery

Can a child give consent to have sex?

In Kenya the age of consent is 18 years. Accordingly, the Children’s Act defines a child as one below the age of 18 years. This means that in our jurisdiction we recognize a child as a person who has not attained the age of 18 years ergo cannot comprehend the full nature and consequences of sex.

Thus such a child cannot have capacity to consent to any form of sexual relations. However, the recent judgment held in appeal Martin Charo V R No. 32 OF 2015 there seems to be a departure from this train of thought as established by the law.

The court acquitted the appellant. At summary, the appellant defiled a 13 year old girl. He KNEW she was thirteen. She in no way misrepresented herself TO BE ABOVE THE AGE OF MAJORITY BEING 18.  This is proven by his actions. According to the judgment, the appellant lied to the child’s brother of her whereabouts when he went to his premises to look for her. The appellant went further to raise alarm, so as to forcefully eject the victim’s brothers from his premises.

Shockingly, the court puts emphasis on the fact that the child willfully took herself to the appellants house therefore she consented. However Kenyan courts have held repeatedly as precedent that it is immaterial whether the victim consented to the act or not. Over and  above, the Sexual Offences act section 20 expressly disallows consent of a minor as a defense in such a scenario.  Children are unable to  fully appreciate the nature of a sexual act, so naturally they are incapable of consent. This holds true the world over. The judgment however puts the victim at trial and not the appellant.

According to the initial ruling, the prosecution proved as they ought to, that the appellant intentionally and unlawfully caused penetration of his genital organ into the genital organ of the girl aged 13 years.  Consequently convicting the appellant and sentencing him to 20 years in prison. All this was by the book and the court applied the law to the letter. That much was not in dispute.

The child behaved like an adult

The court on the appeal went ahead to state in the judgment that;

“… It is clear to me that although PW1 was a young lady aged 14 years; she was behaving like a full grown up woman who was already engaging and enjoying sex with men. “

This statement alone shows the deteriorating state of affairs of our society. The question here should not be the pristine nature of the child; rather we should interrogate our implementation system when it comes to defilement as emphasized in the 160 girls ruling. What the court admitted and also implied in the ruling of Martin Charo Vs. R, is that there are pedophiles, casually and repeatedly engaging in sexual relations with minors with absolutely no dread of the law and that some of these pedophiles may actually be let scot free by virtue of the supposed behavior of the child victim.

Further, the court went ahead to protect such repeat offenders from the law.  The Sexual Offences Act 2007 in the interest of justice and fairness provides misrepresentation as to age by the victim as a defense. If the child conducted herself as an adult who fully comprehends what she is doing neither her nor the appellant would have felt the need to hide her from her siblings. The Sexual Offences Act unambiguously rejects in toto consent as a defense in defilement matters. As a society we should not condone the willingness of any adult person, who has capacity, to engage in any sexual relations with a child regardless of the disposition and willingness of the child who knows no better.

The child is to blame? Shaming the child.

However, at this juncture it is important to ask the question of what is willing behavior in a child’s conduct in such a scenario? What is the measure used to dispose of one behavior as non –willing and another as such? The court has inadvertently opened Pandora’s box because one can never be completely sure of another’s intentions let alone a child’s especially in a sexual environment. The litmus test of right or wrong when dealing with children in such a sexual circumstance is on the onus of the adult! Never the child!

More so, the Protection Against Domestic Violence Act 2015, which includes defilement in the definition of violence allows anyone, not just the victim to report the matter to the police. We should make sure that we have created for the victim an environment conducive to reporting and trying of defilement. However, don’t such rulings act as a determent in the first place? Why would a child report sexual assault by an adult knowing full well that she/he may be victim shamed and no justice applied to the perpetrator of the offence?

We should consistently train our public officers and sensitize them on how to handle CHILD victims. Children should be treated as such. The test of who is a child is not and has never been their behavior but rather the age of majority.

Lastly, we should endeavor to set up more rehabilitation centers and other government institutions specifically geared towards child sexual assault victims that adequately address the physical, psychological and emotional treatment of the survivor to ensure that no general health repercussions extend into their adult life. We should ensure that as a society and a state we are nurturing healthy and wholesome citizens more so children as envisioned in our national values and national goals as contained in Vision 2030 and National Health Sector Strategic Plan II. Retrogressive thinking will only get us so far.

By

Wangari Karige and Samantha Oswago

LAED-Kituo Cha Sheria

Local Politics of International Justice in Kenya: How the ICC let the case slip away (Part I)

ICC-Kenya-CaseIn the wake of the International Criminal Court’s (ICC) decision to drop charges against the Deputy President of Kenya, William Ruto, and a radio host, Joshua arap Sang, we must re-examine the process of their initial indictment and trial. While we believe that Ruto and Sang (as well as the initial co-accused, including the sitting president Uhuru Kenyatta) should have faced a full trial to determine their role in the 2007/2008 Post-Election Violence (PEV), in two Blog posts [http://ohrh.law.ox.ac.uk/local-politics-of-international-justice-in-kenya-how-the-icc-let-the-case-slip-away-part-1/] the authors would like to reiterate arguments that the process was flawed for two main reasons.

First, the indictments were short-sighted in their consideration of alliance politics in Kenya, which worked against the process and ultimately contributed to the unwinding of the case. The ICC cannot consider its justice removed from local politics. Second, to be addressed in Part II, is that the process seemed to neglect the desire for justice on the part of victims. While justice for alleged perpetrators of crimes is a valiant goal, it should neither come at the expense of victims’ safety, nor should it neglect their claims for compensation and resettlement.

One of the main outcomes of the Court’s indictments was the creation of the Jubilee Alliance between the main co-accused: Uhuru Kenyatta and William Ruto. While they were accused for crimes committed on opposing sides of the PEV, they decided that the best way to survive the indictments was to band together. As Gabrielle Lynch explains in The Alliance of the Accused, Uhuru and Ruto constructed a narrative that the ICC was broadly targeting Africa in a fashion that was reminiscent of colonialism. More specifically, they argued that the Court had chosen to single out their respective Kikuyu and Kalenjin communities while leaving other ethnic groups, like opposition leader Raila Odinga’s Luo community, untouched. Thus the process rallied support, sympathy and anger against the ICC process amongst two of the largest communities in Kenya. Uhuru and Ruto’s alliance and their counterintuitive narrative of the injustice of the ICC process led them to a narrow electoral victory in 2013. As President and Deputy President, it is alleged that Uhuru and Ruto were able to frustrate the proceedings and avoid a full trial by a means of coordinated witness intimidation as well as use of resources and power of the state to withhold crucial evidence.

It seems, perhaps, unfair to criticize the Court for failing to predict Kenya’s complex alliance system. Kenya’s parties change weekly in the lead-up to elections, and alliances are constantly shifting. Thus, at the time of the indictments, the prosecution could not have foreseen that this would happen and thus could not choose their indictments based on such a hunch. If anything, the prosecution team looked to show some consideration for local context. For example, in recognition of the power-sharing agreement that came about after the PEV, the ICC only indicted deputies of the two 2007 presidential candidates (Raila Odinga and Mwai Kibaki) potentially to preserve the delicate security situation.

There was little the ICC did to adapt to these changes in the inevitably hostile political context. A criminal trial system, with its innate rigidity, cannot and does not operate in a vacuum. Whereas the system may not seamlessly move to the rhythm of different political contexts, it should certainly be guided in its implementation by the realities of local power politics. As Sarah Nouwen and Wouter Werner argue, the ICC tends to portray politics as external to the law even if the Court’s fight against impunity is also a direct struggle against local politics. But the Court cannot turn a blind eye to the fact that it is a part of, if not the epicenter, of politics. This attitude, as the Kenyan case demonstrates, can greatly derail justice.

Additionally, the failure by the ICC to address the inherent weakness of its witness protection mechanism also provided fertile ground for the abovementioned local politics to undermine victims of human rights abuses’ quest for justice. But what exactly is justice for these victims? The formal criminal justice involved in the ICC process understandably cannot address all the needs of victims. However, little to no action has been taken to pursue their other needs and demands, such as healing, reconciliation, compensation and guarantees of non-repetition, an impasse that will be the topic of the upcoming second part of this blog.

By:

Aimee Ongeso – AGCP Kituo Cha Sheria

Alex Dyzenhaus – British Institute in Eastern Africa

Reblog-This Blog post first appeared on the Oxford Human Rights Hub Blog.

No case to answer in the ICC case, what does this mean?

Article 66(2) of the Rome statute places the onus to prove the guilt of any accused person(s) on the Prosecutor. Thus, a ‘no case to answer’ motion, is appropriately brought in cases where the Prosecution has failed to fulfill that burden by not having presented evidence for the elements that would be required to be proven in order to support a conviction in any trial at the International Criminal Court (ICC).[1]

The primary rationale underpinning the hearing of a ‘no case to answer’ motion – or, in effect, a motion for a judgment of (partial) acquittal – is the principle that an accused should not be called upon to answer a charge when the evidence presented by the Prosecution is substantively insufficient to engage the need for the defense to mount a defense case.[2] This reasoning flows from the rights of an accused to presumption of innocence and to a fair and speedy trial, which are reflected in Articles 66(1) and 67(1) of the Rome Statute.[3]

The applicable legal standard for any ‘no case to answer motion’ is whether or not, on the basis of a prima facie assessment of the sufficiency of the evidence, there is a case. Simply put, if there is a case whereby a reasonable Trial Chamber could convict the accused. The emphasis is on the word ‘could’ and the exercise contemplated is thus not one which assesses the evidence to the standard for a conviction at the final stage of a trial.[4] Thus, the determination of a ‘no case to answer’ motion does not entail an evaluation of the strength of the evidence presented, especially in regards to exhaustive questions of credibility or reliability. Such matters – which go to the strength of evidence rather than its existence – are to be weighed in the final deliberations in light of the entirety of the evidence presented.[5]

Based on a combined reading of Articles 69(4) and 74(2) of the Rome Statute and Rule 64(3) of the ICC Rules, the Trial Chamber thus in its assessment of a ‘no case to answer’ motion only consider as evidence only what has been submitted and discussed at trial and has been found to be admissible by the Chamber.[6]

The Prosecution’s case, against Mr. Ruto and Mr. Sang, is built around a central allegation that a ‘Network’ existed.[7] The existence of this Network is said to prove that there was an organization in the sense of the organizational policy requirement in Article 7(2)(a) of the Rome Statute, which mandates that the widespread or systematic attack against a civilian population must have been ‘pursuant to or in furtherance of a State or organizational policy to commit such an attack’. At the same time, the reasons behind the creation of the Network are alleged to constitute the criminal common plan of the Network’s ‘key members’.[8]

The Prosecution thus had to demonstrate that there existed a ‘Network’ by firstly, adducing evidence to show that Mr Ruto held three preparatory meetings at his house in Sugoi with the aim of mobilizing and coordinating the Network members and the Kalenjin youth from different areas of the Rift Valley, and obtaining weapons for the Kalenjin youth.[9] To prove the three meetings and what was discussed at them, the Prosecution relied exclusively on evidence contained in the prior recorded testimony of Witnesses 397, 604 and 495. However as at the time of the decision of this motion of no case to answer, these witness statements no longer formed part of the evidence in the case thus none of the alleged preparatory meetings is supported by evidence.[10]

Secondly, the Prosecution had to prove their allegation that the Network members organized, financed and completed the training of Kalenjin youths to carry out attacks against PNU supporters in order to drive them out of the Rift Valley.[11] The Prosecution relied on the evidence of Witnesses 516, 800 and 495 to prove these allegations. However, as a result of the Appeals Chamber’s ruling on the inadmissibility of recanted evidence, the prior-recorded statements of Witnesses 516 and 495 no longer supported these allegations.[12] The only remaining evidence relied on by the Prosecution as proof that the training of youths had in fact been done is that given by Witness 800. During examination-in-chief, Witness 800 stated that he witnessed first-hand from his home youths leaving in Lorries and that he saw them returning some time later.[13] Directly upon their return, around November 2007, the witness claimed to have spoken to the youths and that they provided him with the details of the three-week training camp that they had just attended at the farm of a man named ‘Muzuri’ in Boronjo, five kilometres from Ziwa.[14] However, in cross-examination, Witness 800 confirmed that the information about the training had been contained in a report that Witness 495 had prepared for an organization that both these witnesses worked for at the time.[15] As already indicated, the statement of Witness 495 is no longer evidence that can be relied on. Further it is clear that Witness 800 perjured himself while under oath.  Even if he had admitted to Witness 495 being his source from the outset, the training camp evidence would be just hearsay that originated from an anonymous source.[16] It was also noted that Witness 800 admitted to his involvement in witness interference under oath.[17] He testified that he provided the Prosecution with his initial statement in October 2012, but that in July 2013, following a number of meetings with certain individuals and in return for the payment of a bribe, he agreed to recant his statement, as well as to approach other Prosecution witnesses, including witness 495, in order to convince them to also recant.[18] He further admitted to signing a pre-written affidavit, in which he recanted his earlier statement, despite knowing most of its contents to be untrue.[19] The Trial Chamber thus concluded that Witness 800 untrustworthy and therefore any evidence from him is incapable of being relied upon by any reasonable Trial Chamber.[20]

Thirdly, the Prosecution had to prove that the Network acquired weapons which were in fact used as part of the implementation of the common plan. In this regard thus the Prosecution had to prove its allegation on the occurrence of a fundraiser in Ziwa on 31st December 2007 in order to collect funds, inter alia, to obtain weapons for Kalenjin youth that were to take part in the ‘war’ against Kikuyu. The Prosecution as concerning this relied on recorded testimony of Witness 495 and the in-court testimony of Witness 658. As already indicated the evidence of witness 495 was excluded. The Trial Chamber ruled that the evidence of witness 658 given about the Ziwa fundraiser is insufficient support for the Prosecution’s allegations as there is no (other) evidence showing that the money allegedly contributed was actually used to buy guns or, more importantly, that these weapons were actually used to commit crimes pursuant to the Network’s alleged common plan to attack PNU supporters and the Kikuyu civilian population; rather than for other possible purposes, such as defending the Kalenjin community against perceived potential aggressors, like the Mungiki. In relation to the personal involvement of both accused, there is insufficient evidence to suggest that Mr Sang, who allegedly promoted the event on his radio show, was aware of the alleged purpose of the fundraiser. Further, the Trial Chamber decided that Witness 658’s evidence did not prove that Mr Ruto knew that the money he allegedly donated would be used to buy guns that were intended for criminal activities.[21]

The half time submission of ‘no case to answer’ is a legal argument put to the court at the cessation of the prosecution’s case. It is wholly dependent on the substantial value of the evidence adduced by the prosecution. It begs the question; where the evidence is of a tenuous or erratic nature, can the Chambers properly convict upon it? Thus on the 9th day of August 2013, the chamber held that it would permit the ‘no case to answer’ submissions by the defendants at the end of the prosecutors’ presentation of evidence. On the 5th day of April the Chambers ruled that indeed the accused had no case to answer based on the evidence adduced by the prosecution. However, this decision may be subject to appeal.

By Jepher Kere and Wangari Karige

reference;

[1] ICTY, The Prosecutor v William Samoei Ruto & Joshua Arap Sang, Case No. ICC-01/09-01/11-2020, Trial Chamber Decision No. 5 on the Conduct of Trial Proceedings (Principles and Procedure on ‘No Case to Answer’ Motions, delivered on 22-01-2016, para 13.

[2] ICTY, Prosecutor v Slobodan Milosevic, Case No. IT-02-54-T, Trial Chamber Decision on Motion for Judgement of Acquittal, 16 June 2004, para. 11; ICTY, Prosecutor v Pavle Strugar, Case No. IT-01-42-T, Trial Chamber, Decision on Defence Motion Requesting Judgement of Acquittal Pursuant to Rule 986/5′, 21 June 2004, para. 13. See also Vladhnir Tochilovsky, Jurisprudence of the International Criminal Courts and the European Court of Human Rights: Procedure and Evidence (Martinus Nijhoff Publishers 2008), pages 538-539, considering the procedure in the context of Rule 9ibis of the ad hoc tribunals.

[3] Decision No. 5 on the Conduct of Trial Proceedings (n 1), para 12.

[4] Ibid, para 22.

[5] Ibid, para 24. Compare Article 74(2) of the Statute. See also, in support, United Kingdom, Court of Appeal of England and Wales, Regina v Galbraith, 1981 1 WLR 1039 (‘Galbraith U.K. Appeal Judgment’).

[6] Prosecutor v Thomas Lubanga Dyilo, Trial Chamber I, Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842 (‘Lubanga Judgment’), para. 101.

[7] Updated Document Containing the Charges, ICC-01/09-01/11-533-Anx A, at paras 20-21

[8] ICTY, The Prosecutor v William Samoei Ruto & Joshua Arap Sang, Case No ICC-01/09-01/11, Trial Chamber V (A) Decision on Defence Applications for Judgments of Acquittal Delivered on 5th April, 2016, para 25.

[9] Consolidated Response, ICC-01/09-01/11-2000-Red2, para. 153. The meetings themselves are discussed in paras 154-159.

[10] Decision on Defence Applications for Judgments of Acquittal (n 8), para 36.

[11] Consolidated Response, ICC-01/09-01/11-2000-Red2, paras 147, 152, 160-161.

[12] Decision on Defence Applications for Judgments of Acquittal (n 8), para 38.

[13] Transcript of hearing 18 November 2014, ICC-01/09-01/11-T-155-CONF-ENG, pp 23-24.

[14] Ibid, at 18-19, 26

[15] Transcript of hearing 25 November 2014, ICC-01/09-01/11-T-160-CONF-ENG, at 39; and Witness

495’s witness statement, initially admitted under Rule 68: KEN-OT0084-0236, at 3.

[16] Decision on Defence Applications for Judgments of Acquittal (n 8), para 41.

[17] ICC-01/09-01/11-1866-Conf, at Parts VI and VII.

[18] Transcript of hearing 20 November 2014, ICC-01/09-01/11-T-157-CONF-ENG, at 13-14

[19] Decision on Defence Applications for Judgments of Acquittal (n 8), para 42.

[20] Ibid, para 43.

[21] Ibid, para 49-53

A Need to go beyond Legislation

Opinion

“Our lives begin to end the moment we begin to stay silent about things that matter” – Martin  Luther King Jnr.

If you were asked, what is the most desirable Chapter in the Constitution of Kenya 2010? What would you say? I know there may be no easy answer to this question but I would pick Chapter Four on the Bill of Rights. Arguably, the Bill of Rights is the fulcrum of this Constitution. It is a point of convergence for the leaders and the citizens of Kenya.

Moreover, the Bill of Rights signifies a big departure from the past. Unlike the previous document, the Constitution of Kenya 2010 inter alia embraces principles of inclusivity. The law has deliberately recognized women, the youth, marginalized groups and persons with disabilities and bestowed upon them a myriad of rights which include social, political and economic rights.  But if I may ask, where are these rights?

As a person with physical disability I can’t help but ask these questions? Where are the rights for persons with disabilities? Were they just written to make the supreme law attractive? Was it just about the referendum?  Or is it a matter of appeasing our conscience that at least we have persons with disabilities recognized by the law? Please walk with me through this paper and perhaps you will see the genesis of my frustrations.

Firstly, the Constitution of Kenya 2010 provides for access to justice. An interpretation of this article is that citizens of Kenya have a right to justice. Legal scholars are quick to look at this provision from the technical point of view, that is, the right to approach the court through pleading, have a hearing and get justice. What of the literal meaning? My experience- while undertaking judicial attachment about four years ago- is that most of our courts in the magistracy level have no ramps. Their entrances are poorly designed and have no allowance for a wheelchair user. I wouldn’t want to talk about other facilities such as the washroom but I guess you get the picture. So, what justice can I get if the courts have not taken initiative to put infrastructure in place? What justice does Article 48 promise if I can’t get into a court room using my wheelchair? I have always asked myself whether the Chief Justice or even the Registrar of the High Court is aware of this.  How many resources would it take to build a ramp at the entrance of a court building?  Other government offices are no different especially at the county level, yet we pride ourselves with the provisions of Article 54 of the Constitution of Kenya 2010.

Secondly, there is a right to access to educational institution for persons with disabilities. How many primary and secondary schools have facilities for persons with disabilities? How many public Universities are ‘disabilities friendly’?

Thirdly, the Persons with Disabilities Act Cap 133 of the laws of Kenya establish a National Council for Persons with Disabilities. A brilliant idea you would say; Section 7 of the Act outlines a number of functions given to the council. (1) They have a role to ensure that there are equal opportunities in education and employment. Unfortunately that is only on paper. So far we have deliberated over a lack of facilities for persons with disabilities in schools and offices. How are they to ensure equal opportunity in education and employment yet they do not take steps to sensitize the public and making sure that educators and employers have a disability friendly environment? I can’t help but wonder how much money and resources it would take between the ministries in charge of education, labour relations and the council of persons with disabilities to make this a reality. (2) The National council has a role to register persons with disabilities in Kenya. This is with the aim of helping the government plan for the welfare of these people. How do they do this? If you were in Nairobi, you have to go to the council offices in Westlands; they will send you to Mbagathi Hospital, where you go through medical assessment (which you have to pay for) then go back to the Council with your details and passport size photos. They will tell you to go back home and come after three months to pick your identity card. Interestingly, they most times loose the photos and tell you to bring others.

This is a normal process. It makes sense to a man in an omnibus, until you tell them that the subject (this person moving from Mbagathi, to Westlands and to Mountain View) is on a wheelchair and is using public transport in this city of Nairobi! Granted, it may be cumbersome to walk from house to house registering persons with disabilities but I bet it wouldn’t kill us to centralize the process. Put the whole process in one particular place. Statistics which they have should tell them that about half of Persons with disabilities are physically handicapped, translating to mobility problems. Why are the council offices opposite ABC Place in Westlands, with such traffic?  How much will it take the Council to automate everything? I feel that the process is not just cumbersome but inhumane. (3) The other roles given to the Council is to provide assistive devices, helping the government develop curriculum, helping with the establishment of rehabilitation centers. These are very good laws but the reality is mind- boggling.

Fourthly, there is a provision for civil rights for persons with disabilities. This goes ahead through the Constitution and provides for representation of persons with disabilities in both national and county level legislation houses. The rationale perhaps is that they have a role to ensure that there is disability mainstreaming in the country. Four years down the line and I still see a helpless boy on a wheelchair in Buru Buru for example begging for coins on the streets. Four years down the line, I still know of persons with disabilities in Universities who call-off due to lack of fees. Don’t we still have helpless children hidden away in houses in the villages?

What is the need of having disability representatives in parliament while their constituents are going through all these? I am yet to see a single piece of legislation brought to the house by a disabled member of parliament. I am also yet to see any legislation streamlined to fit within the needs of persons with disabilities.

Lastly, I will focus on the freedom of information. The Persons with Disabilities Act provides for sign language interpretation in news broadcast and important national events.  This is in recognition that there are many citizens in this country with speech and hearing impairment.  Does this happen? I know that there are still media houses that do not incorporate sign language in their news bulletins for example.  If other media houses have done this, why is it so hard for others? How much money does it take to set up this system and employ a sign language interpreter?

Clearly, there is a need to go beyond the law. There is need to implement the law. There is need to create disability awareness. There is need to demand for the concerned sectors to do their jobs properly. It is time for persons with disabilities to demand for their rights. It is time to move from pen and paper to actual realization of our aspirations. I don’t think it is fair that persons with disabilities are fed bread crumbs while we hide behind the veil of legislation.

I therefore, urge everyone with or without disability to look at these issues. Seek the truth and help in moving beyond legislation.

By

Ouma Kizito Ajuong’

Kituo cha Sheria.

 

 

Putting the ‘Youth’ in Sexual Gender Based Violence

16_days_logo_english

This year’s theme for the 16 days of Activism is “From Peace in the Home to Peace in the World: Make Education Safe for All!” Children’s right to education is being violated all over the world because of weak infrastructure. This includes unsafe and unsanitary learning environments, inadequate curricula that are not gender-sensitive and continually being framed within stereotypical patriarchal notions of gender as well as limited resource provision for the delivery of, or access to education. Even as many of the United Nations member states have promised to protect this right.

The right to education has become a universal human right, no matter where you are in the world. A couple of blog post ago we wrote about causes of sexual gender based violence and indeed a lack of proper education was one of the causes. >>https://kituochasheria.wordpress.com/2015/11/28/what-causes-sexual-gender-based-violence/>>

This is why I blog about youth and sexual gender based violence today.

According to the United Nations, youth is the transition period from the dependence of childhood to adulthood. In the Kenya Constitution the rights of vulnerable persons such as women, the elderly, handicapped and the youth have been given recognition and emphasis.In this context, a Kenyan youth is a person between the age of 18-35 years as is common with most of African States.

The extent and nature of specific types of SGBV towards youth varies across cultures, countries, and regions. Some of the more common forms that involve young people include sexual exploitation, forced sex with children, early marriage, female genital mutilation/cutting, human trafficking, cross- generational sex, and GBV in schools.

It is clear in the African Youth Charter that each and every state party should acknowledge the need to eliminate discrimination against girls and young women, engage in peer-to-peer education to promote youth development in areas such as HIV/AIDS prevention and violence prevention. States should also provide access to information, education and training for young people to learn their rights and responsibilities.

Involving the youth, both the boys and girls in fighting sexual gender based violence has a lasting effect and any effort made in stopping sexual gender based violence. Usually boys and men are the ones who inflict violence against girls and women, talking to them and making them understand that they are different but equal and deserve equal respect is an important step in fighting sexual gender based violence.

Most types of SGBV are carried out under the cover of culture and tradition, and are deeply rooted in communities. Addressing this issue requires engagement with communities as a whole and the youth component in our communities is most times the largest constituency. Addressing and involving the youth in issues SGBV will be akin to addressing communities all at once.

 

By:

Nasibo Abagaro

Advocacy, Governance and Community Partnerships Programme

The Disability Debate and SGBV

idpdAccording to the census statistics of 2009, 3.5 percent of the total population in Kenya are people with disabilities totaling to about 1.3 million. Of those with disabilities, 51 percent are female, while 49 percent are male. The largest proportion is physical and self care disabilities (31 percent), followed by visual disabilities (25 percent) and hearing disabilities (14 percent). However, it is important to mention that other estimates do vary considerably across documents. For example, the preliminary report by the Kenya National Survey for Persons with Disabilities released on March 2008 depicts that; 4.6% of Kenyans experience some form of disability, more disabled persons reside in rural than in urban areas, 15% of PWDs are likely to be affected by environmental factors on a daily basis and 3% on a weekly basis and 16% women with disability aged 12–49 years use some form of family planning.

People with disability are subject to multiple and aggravated forms of human rights violation, including the neglect of their most basic survival related needs.  It is evidenced that people with disability are more vulnerable to sexual abuse; in most cases they appear helpless when attacked by the perpetrators.

There are numerous factors that may increase the vulnerability of persons with disabilities to sexual gender based violence, any form of abuse and exploitation: these factors include but not limited to;

  1. Social isolation especially by the family members
  2. Knowledge of family members or the general public on the subject relating to disability; certain societies and even individual families view disability as a form of curse and therefore may end up locking the disabled persons inside an isolated place and never want to associate with them.
  3. Attitudes of family members relating to disability; in fact the issue of negative attitude towards persons with disability negates the ability of the person to experience wholesome growth, people still view the disabled as the people who may only need food for survival and nothing else, nobody would want to check on their hygiene status, emotional and physical growth.
  4. Capacity to share care-giving in the household; this may even be as a result of language barrier, take for instance the dumb whose only mode of communication is sign language.
  5. Over dependency on others for daily care

It is imperative to cite certain instances where those with disability experience gross sexual gender based violence, many have witnessed those on wheelchair who circumstances force them to be supported or carried while boarding public vehicles. These are the moments where women or girls face sexual harassment as people initially meant to support them who happen to be male in most cases physically mishandle them.

The physically disabled especially those crippled in the limbs who may not for example be in a position to escape an attack/assault, the blind who may not see and discern the intentions of the perpetrators, the dumb may not in any way call for help when attacked. All these forms of disability therefore apparently convey the vulnerability especially for the women and girls who find themselves insecure not only to people unknown to them but even those vividly known to them who take advantage of the victims’/survivors’ situation.

In a nutshell, the disabled have gone through some of the most cruel abuse imaginable including being harassed and physically and mentally which in most cases has led to serious and lasting consequences which include but not limited to permanent impairment, death or a whole range of physical, psycho-social and mental health problems that has negatively affected them.

Women/girls with disability are also mostly affected especially in times of humanitarian crises. They find themselves greatly vulnerable and unable to defend themselves.

It is therefore important for the general public to be aware that disability is not inability; the disabled can immensely contribute to economic growth of their families and society at large. Their human dignity must be respected and never be violated in any form.

3rd December is the International Day for Persons Living with Disability and in 2015 the world says-Inclusion Matters: Access and Empowerment for People of all Abilities.

Let us celebrate the day within the context of 16 days of activism and address the impact of sexual gender based violence on the rights of persons with all abilities and access to justice for victims/ survivors.

By:-

Paul Nandia-RCD