The Courts will not solve all Electoral Disputes in Kenya

The 2nd day of September, 2017 will go down in history as a major turning point in the judicial discourse in Kenya. This is because the Supreme Court, contrary to expectations, pronounced itself overturning President Uhuru Kenyatta victory in the 8th August 2017 general elections. According to the majority decision, the Electoral management body, Independent Electoral and boundaries commission (IEBC) did not abide by the law and election regulations while conducting the presidential elections This was a first in Africa and perhaps shocking that the CJ Maraga shepherded team demanded fidelity to the rule of law, transparency, accountability, impartiality from an African electoral management body, a world where electoral fraud, violence and mismanagement flourishes with no consequences. The Raila Odinga 2017 landmark case however invoked article 138(9) of the Constitution of Kenya and subsequently raised questions while exposing a number of lacunas in the electoral system. It also opened the flood gates on electoral petitions on the other electoral seats. The courts are therefore dealing with over 70 petitions in addition to another presidential petition at present. This article therefore contends with the question of elections petitions and whether the courts have all the answers needed

When to litigate?

While Article 22 of the constitution of Kenya 2010 adopted a liberal position, taking away the locus standi “Place of standing requirement for a litigant, instituting a court process however should still be done as a last resort. Granted, a number of reforms have taken place in the judiciary and today unlike the past, justice is expeditious, proportionate, and affordable yet the character of litigation as adversarial is still humongous. Litigants do not only have to take care of the strict timelines but the cause of action as well as the cost and the idea of evidence are upon them. A number of issues also come to play specific and unique to electoral disputes. Firstly is always the question of public interest. Public interest is an issue that judicial officers are always asked to consider. It revolves around cost of elections, the fear of violence and a constituency being ungovernable. A litigant involved in election petition cannot therefore ignore this. Secondly is the question of politics and social strata, while the courts look at legality of an electoral process, they do not have the competency or jurisdiction to answer political question or social based question. It must be very difficult for a judge confronted by allegation of witchcraft as a factor that may influence voters. Politics therefore does not only endanger the judiciary but may fuel the situation further.  It is also important to recognize that as much as justice is done or not done may not be measured through political lenses.  Lastly is the question of cost. Unlike other petitions, the cost of election petition is fairly high hence a point to be considered before litigation. Are there alternative to litigation when it comes to electoral disputes in Kenya? Listening to political rhetoric and the fact that the Constitution 2010 was born after the 2007 post- election violence, it may look as though there are no other avenues to ventilate and solve electoral dispute, however, Kenya has both a legal social and electoral system that can solve electoral disputes and electoral contests

The Electoral Management Body (IEBC)

There is a general consensus that electoral management bodies have the function of managing electoral contest. In Kenya, the Constitution of Kenya 2010 in article 88(4) clearly prescribes the duties of IEBC.  Consequently, article 99,138,180 and article 193 expands the reach of the commission with regards to vetting of candidates to vie for various seats, while article 99 gives power to the EMB to receive and after verification gazette names of nominated members of parliament. The international electoral standards, just like the constitution of Kenya 2010, are quite heavy on the duties of the EMB as include, registration of voters, keeping a clean register, vetting candidates, balloting, tallying, tabulating, announcing of results and giving out certificates. Lost to many however is the standard that the EMB needs to abide by.  Article 81 (v) mirrors the international Standards of elections as it demands that  elections need to be impartial, neutral efficient accurate and accountable. These inter alia have the effect of reducing electoral disputes as they ensure the playground is levelled. It is therefore quite possible that the EMB is the first pot of coal when dealing with electoral disputes. Proper management and faith in electoral body rarely leads to court cases

National Cohesion and Integration Commission (NCIC)

Elections just like sports are divisive and it is important for a country to heal and move forward-something that cannot be achieved by adversarial court processes. Unique is Kenya’s tribal politics which always open wounds of historical injustice, oligarchy, political assassinations, corruption and poor governance. The creation of National Cohesion and integration commission in the Constitution of Kenya 2010 was perhaps an acknowledgement of these issues; however the commission has failed in nurturing nationhood, instead Kenya is currently one of the six countries in Africa talking of secession. How does Kenya get out of this? Firstly, the NCIC needs to start working other than moving with the motion. There is a feeling amongst many Kenyans that this commission is only reactive which is not helpful. All they can account for is following up on hate speech which doesn’t even help the situation. Secondly, the commission needs to operate independently and not as an extension of the executive. The NCIC mandate requires them to demand accountability from the citizens, politicians and leadership. This cannot be done effectively if there is patronage from the leadership. Thirdly, there are issues of equal distribution of resources, equal opportunities, attention to marginalized and special interest groups that should be a concern of the commission and lastly, the idea of patriotism and nationhood. If the NCIC and other independent commissions were to do their jobs, Kenyans would not expect all the answers to come from the courts.

Parliament and Devolved Units of Governance

Historical debate on the harm of a centralized presidency led to change of the governance structure under the Constitution of Kenya 2010.  The idea of the drafts persons was to donate the powers of the imperial presidency to the county government   parliament and other institutions. This has definitely led to challenges of a huge wage bill and devolved poor governance system as well as a parliament which is an extended arm of the executive hence a litigious nation. It has been argued however that as much as party politics and the tyranny of number is important, parliament ought to be a voice of the people, representation of the diversity of the people and needs to check the executive. Article 96 and 98 of the Constitution of Kenya gives parliament the three roles of legislation, representation and oversight. If these were done properly, perhaps the litigious and passion on election petition will be on a law. A properly constituted parliament the power, competency and jurisdiction to craft a political solution unlike the courts. There is also a feeling that if the devolved governments were to work properly, there would be less interest in political power as resources would devolve to the people

Civil Society, Media and Electoral Observers

“Civil Society” is defined as the realm of organized social life that is open, voluntary, self-generated, autonomous from the State and bound by the rule of law. They play the role of supporting institutions of democracy and reducing election related conflicts. In addition to these, civil society can also discuss and offer political solutions therefore being an alternative to litigation. The media and election observers are primarily watch dogs, they are there to tell a story. If this is done accurately and objectively, it goes a long way in minimizing electoral disputes. International Standards on elections puts it on the media to  give fair coverage to electoral candidates as they educate and undertake  civic education. Election observers on the other hand write reports which also help in making changes and improving systems. There is however a feeling those elections observers in Africa are always of no value as all they do is give a nod to processes, particularly those of the AU

Traditional Dispute Resolution

The Constitution of Kenya 2010 recognizes elders in the way of solving disputes. This is also another way to consider other than the blotted court process. This process is advantages as its reliefs are not as limited as the formal courts. Tradition dispute resolution may be applied in relation to negotiated democracies. If this is one way that Kenya needs to go then it is worth consideration.

Conclusion

As much as an open judiciary is important, it is perhaps time for Kenya to learn that not every problem is legal. It is also a good idea to always explore and use the other methods of dispute prevention and resolutions. Remember, the courts have no answers to a political problem and the law is not a means to itself   

By:

Ouma Kizito Ajuong’

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

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Intersex Awareness Day 2017

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26th October is the Intersex Awareness Day; this is an internationally observed awareness day designed to highlight human rights issues faced by intersex people. This year the day was marked with the message of #FreeToBeMe.

The Day is an international day of grass-roots action to end shame, secrecy and unwanted genital cosmetic surgeries on intersex children.  The day also provides an opportunity for reflection and political action. Between October 26th and November 8th, organizations bring attention to the challenges intersex individuals face, culminating in the Intersex Day of Remembrance on the birthday of Herculine Barbin, also sometimes known as Intersex Solidarity Day.

A person who is intersex is someone who is neither 100% male or female; it is time we stop normalizing genital surgery on intersex infants or children since humans are not only XY and XX we are also XYY,XXYY, XX/YY,XXXY…

Interesting Facts about intersex persons:

Fact 1: Intersex is not new it has been around since the beginning of human existence.

Fact 2: Being intersex relates to biological sex characteristics, and is distinct from a person’s sexual orientation or gender identity.

Fact 3: Intersex persons are often subjected to discrimination and abuse if it becomes known that they are intersex, or if they are perceived not to conform to gender norms.

Myths about intersex persons:

  1. Intersexuality is as a result of witchcraft or a curse.
  2. Navaho – a Native American people of the Southwestern United States believed intersexual to be the supernaturally designated custodians of wealth, and any family with an intersex child born to it has its future wealth and success assured.

Indifference…

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It’s time we talk about it.

It’s neither a boy nor a girl; 9months of pregnancy, 12 hours of labor later, the mother wants to hold their bundle of joy, she wants to name them after their favorite celebrity icon (whose name half her relatives will pronounce wrong), and she is dying to hear the doctor announce their sex. The doctor looks puzzled he stammers and says “its fine we can fix this.”

Intersex persons could have one of the following conditions; External genitals that cannot be easily classified as male or female, Incomplete or unusual development of the internal reproductive organs, Inconsistency between the external genitals and the internal reproductive organs, abnormalities of the sex chromosomes, abnormal development of the testes or ovaries, Over- or underproduction of sex-related hormones Inability of the body to respond normally to sex-related hormones.

Non-binary in this article will be implying a person whose sex organs are not solely identified to be male or female.

When an intersex baby is born, abnormality, disorder, curse, problem, fix it! Are all words that are thrown around from the outset of their life. In the case of Alex Omondi, (not the real name) the parents could not afford to “fix” the situation at birth, they therefore chose to raise and socialize him to be male since a son is culturally the preferred sex.

Alex hit puberty and began experiencing misplaced features, far from what learned in science class; Alex’s voice was sharp, hips were broad, and had what appeared to be breasts. This caused a lot of ridicule and bullying. The parents were desperate to ease Alex’s embarrassment and decided visit a herbalist to help “cure” the condition. Inevitably the treatments failed. A boy’s name was as close as to being male as Alex ever got.

 At 25 Alex attempted to marry, but the law did not recognize the marriage. Basically the law does not prohibit an intersex person to marry but it only recognizes marriage between a man and a woman. Alex’s physiology would not permit them to consummate the marriage as a male. Otherwise if Alex had corrective surgery and was now male then legally the marriage would have been recognized.

As a result of not having a birth certificate or national identity card, he could not enjoy citizenship rights, including the ability to register as a voter, obtain travel documents, acquire property and get employment. Alex felt alone, disillusioned and helpless and even became secluded. To get back at life for all the lemons thrown his way, Alex joined Gaza a notorious teenage gang in Nairobi with a record of criminal activities. 1 year later a robbery went wrong. Alex was arrested and charged with the offence of robbery with violence. Alex was tried, convicted and sentenced to death .later Alex was committed to a maximum prison alongside male death row convicts, whom he shared cells and facilities with. Alex reported to have been was exposed to abuse, mockery, ridicule, and inhuman treatment, as well as sexual molestation by the other inmates.

As a result Alex sued the government for being discriminated against and disadvantaged socially as a consequence of the failure of his legal recognition as an intersex person. Hon. H.M Okwengu J , Hon. G. Dulu J and Hon. R. N Sitati J, sitting at a High Court in Milimani where the petition was heard dismissed the petition and granted the petitioner Kshs. 500,000/- for violation of the petitioners  right to protection against inhuman and degrading treatment they further ordered that in view of the ambiguity surrounding the sex of the petitioner the order for the petitioner to be held in separate and exclusive accommodation from other male convicts would remain in force. This ruling indicated that the society was not ready for a third gender. The high court suggested corrective surgery to conform to either male or female.

We all have an emotional need be to accepted by a group whether it is family, friends, co-workers, a religion, or gender, people tend to have an ‘inherent’ desire to belong and be an important part of something greater than themselves. When one walks into a room it’s not their religion, race or tribe that we first notice but whether they are male or female. Sex and gender issues are that basic in our lives. The case of Alex may be unique to him and most of us may not relate after all we consider ourselves normal.

The society is basically you and I and a majority people who in this case are “normal” and belong to the sex male or female. We are too uncomfortable to accept those that do not belong. We often throw around words like abnormal which fuels stigma and shame about an individual’s ‘body. Our laws blind to protect and even suggest surgery to make fix “them”.

About corrective surgery, this should be discussed in length. But if you cringe each time you hear the word FGM. Then you will need to brace yourself for what is coming up!

On Intersex Awareness Day, Kituo reaffirms our strong commitment to promoting a society where all persons can freely and equally express themselves with dignity, regardless of sex characteristics. When those most marginalized in society are afforded equal protection and opportunity, global security and stability are strengthened.

Increased recognition, understanding and awareness of intersex persons and their human rights strengthens democracy for all.

Lucy Kabura

FMP- Kituo Cha Sheria.

Open Letter: Stop police rape of civilians; ensure access to medical care for victims

An open letter to Cabinet Secretary for Health Dr. Cleopa Mailu, Acting Interior Cabinet Secretary Dr. Fred Matiang’i, and Inspector General of Police Mr. Joseph Boinnet.

 Stop police rape of civilians; ensure access to medical care for victims

Dear Cabinet Secretary for Health Cleopa Mailu, Acting Interior Cabinet Secretary Fred Matiang’i, and Inspector General of Police Joseph Boinnet:

Early accounts of the chaos that followed the announcement of the August 8, 2017 presidential election results indicated that rape and sexual violence occurred in affected communities. Since then, we, the organizations listed herein, in collaboration with community actors, human rights defenders, health workers, government institutions, and development partners, have received, recorded, and assisted numerous victims of sexual violence from Nairobi, Kisumu, and other parts of Nyanza and Western Region. Preliminary findings of in-depth research conducted by Human Rights Watch confirm incidences of sexual violence in Dandora, Mathare, Kisumu, and other affected areas.

So far, we have counted at least 60 cases of sexual violence committed during the August 2017 election-related violence, and the numbers are rising by the day.

The emerging cases reveal a disturbing pattern:

  • The perpetrators described by victims were mostly police officers and/or men in uniform who were deployed to protect communities affected by the election-related violence.
  • Other reported perpetrators include militia groups and gang members who took advantage of the chaos.
  • Women, girls, and men are all affected and have suffered varied forms of sexual violence, including rape, gang rape, sexual assault, indecent assault, and forced nudity, in some cases accompanied by severe physical assault.
  • Sexual violence experienced by the victims has been gruesome and terrifying. Some victims were raped collectively with others from their communities by the same perpetrators, while in other cases, children and husbands witnessed their mothers and wives being raped.
  • The majority of the victims were unable to access timely medical care, mostly due to the prevailing context of insecurity and the ongoing nurses’ strike. Some victims sought medical treatment at local clinics within their communities, but most of those facilities did not provide the required emergency and comprehensive medical and forensic post-rape care. In some cases, victims were asked to pay for the completion of Post-Rape Care and P3 medical forms, contrary to existing laws. Several victims urgently need medical treatment for resulting injuries and illnesses, as well as counselling and psychosocial support.

The emerging cases and patterns of sexual violence reflect a worrying but familiar reality in Kenya. Almost 10 years ago, the Commission of Inquiry into Post-Election Violence following the 2007 elections documented at least 900 cases of rape and other forms of sexual violence, which it termed “a tip of the iceberg.” The current political context related to the fresh presidential elections scheduled to take place on October 26, 2017 signals the potential for increased incidences of sexual violence. Therefore, the state should urgently: initiate measures to protect individuals and communities that may be vulnerable to sexual violence; ensure timely, accessible, affordable, quality, and comprehensive medical and forensic services for any person who may be a victim of sexual violence during this political period; and expeditiously investigate and prosecute perpetrators.

We wish to call your attention to the following concerns:

To Acting Interior Cabinet Secretary Dr. Fred Matiang’i and Inspector General of Police Mr. Joseph Boinnet:

  1. We urge you to issue a public notice outlining the protocols and code of conduct to be followed by police officers in the conduct of security operations, including specific circumstances under which police may be permitted to enter the homes of civilians. All Kenyans are entitled to know the laid down rules and procedures that guide police conduct during operations, so that they can be aware and take appropriate action when a line is crossed.
  1. We call on you to issue a written and public caution to all police officers to desist from committing any form of sexual violence, or other crimes or violations in the conduct of their duties.
  1. We call on you to issue a written and public caution to all police commanders who are responsible for specific police operation teams to be vigilant and take immediate and decisive action against any police officer suspected or known to have committed sexual violence or other crimes in the conduct of their duties.
  1. We further call on you to work with local actors in accordance with the community policing policies to enhance security within affected communities so as to mitigate the potential for sexual violence by civilians who may take advantage of existing chaos to commit crimes.
  1. We urge you to take swift and proactive action to strongly condemn and investigate reported cases of sexual violence and to put in place mechanisms that will support survivors to come forward and report their cases in a secure, sensitive, and timely manner without fear of reprisals from perpetrators, especially in cases involving police officers; such actions are in service of the justice and accountability that are owed to the entire Kenyan populace.

To Cabinet Secretary for Health Dr. Cleopa Mailu:

 You have, on numerous occasions, explicitly noted the significant strain caused by the ongoing nurses’ strike on the provision of health care services across the country. This burden is even higher in situations that require emergency interventions to avert life-long health consequences, such as pregnancy and HIV in people who have suffered sexual violence. Moreover, the inability of survivors of sexual violence to access timely and appropriate medical services significantly hampers the collection and documentation of medical forensic evidence that is vital to support accountability efforts.

  1. We therefore urge you to expeditiously work with the Governors, county government health officials, and development partners in affected areas and potential hot spots to put in place contingency measures to ensure that sufficient personnel are available in health facilities to provide emergency post-rape care and other services during this period.
  1. We urge you to work with the Governors and county government health officials in affected areas and potential hot spots to ensure the provision of sufficient post-rape care treatment and forensic commodities in health facilities, especially local health facilities that are closest and most easily accessible to communities.
  1. We call on you to issue a written and public notice reminding health providers and administrators that they are obligated to provide free medical treatment to survivors of sexual violence, including completion of Post-Rape Care and P3 medical forms, in accordance with the Sexual Offences Act of 2006 and Sexual Offences (Medical Treatment) Regulations of 2012. To this end, we urge you to work with relevant county government officials to establish working relations with private health facilities that may be most accessible to affected communities in order to facilitate provision of free medical treatment to survivors of sexual violence.

Your expeditious action is not only required under our Constitution and laws, but also necessary to assure all Kenyans, survivors, their families, and communities that the state does not condone sexual violence committed by the police or any other person, and will take all measures necessary to end impunity for these violations.

Sincerely,

Physicians for Human Rights

Kituo Cha Sheria-Legal Advice Centre

Coalition on Violence against Women

Women’s Link Worldwide

International Commission of Jurists-Kenya

Independent Medico-Legal Unit

Journalists for Justice

Kituo Cha Sheria condemns massive Human Rights Violations and Police Brutality on Civilians

KITUO LOGO with Legal Advice Centre

Kituo Cha Sheria condemns massive Human Rights Violations and Police Brutality on Civilians following the Just Ended 2017 Presidential Elections

Kituo Cha Sheria is deeply concerned by the lethal force and brutality meted out on unarmed protesters by the police as well as the armed forces following the just ended 2017 presidential election in Kenya.

The deployed police applied unwarranted force and brutality to quell unrest in various parts of the country following the declaration by the Independent Electoral and Boundaries Commission (IEBC), that President Uhuru Kenyatta had won the recently concluded General Election.

Kituo Cha Sheria asserts that the use of violent and unjust measures by the security agents and police by way of: live bullets on protesters among others in; Mathare North Area 1, 2, 4 and 10, Nyamasaria, Kibos, Kondele, Nyalenda, Obunga and Kibera is unlawful and unacceptable.

Kituo is a custodian of Access to Justice for the poor and marginalized and condemns this high handedness in the strongest terms possible.

We have reports from our community based paralegals all over the country documenting up to 24 bodies with gunshot wounds including: a young man, who was shot dead at Dayo in Kisumu West. The deceased’s mother, Milka Amigo, and area MCA, Paul Okiri, have since confirmed the death.

Despite the confirmation above, Kisumu County Police Commander Titus Yoma alongside Nyanza Regional Coordinator Wilson Njenga denied these as factual.

Innocent children have not been spared either by this brutality, considering: the sad case of a ten year old who succumbed to reckless police shootings in Mathare. It is disheartening to learn that police even break into homes (as is documented by a paralegal from the Nyando Community Justice Center) and lob teargas in residential structures so as to draw Kenyans out and torture them indiscriminately including children as young as the 6 month old Samantha Pendo, who suffered critical injuries and later passed on as a result of police torture in Kisumu.

Simmering tension and fear of attacks from the dreaded militia still remains rife especially in Lucky Summer, Obama, Kayole, Kisumu and Mathare. We call upon the security agencies and political actors to rise to the occasion and contain this situation.

We remind you of the Constitution of Kenya, Article 244(a) which states that; The National Police Service shall strive for the highest standards of professionalism and discipline among its members and thus call upon the Independent Police Oversight Authority (IPOA) to move with speed and investigate and hold responsible, individual officers who are committing these heinous operations.

Kituo Cha Sheria appeals to political leaders to reign in on their supporters with a message of tolerance and peace. Kituo Cha Sheria also reminds citizens that they have the right to express themselves through picketing and demonstrations as prescribed under Article 37 of the Constitution of Kenya, but they must be peaceful and unarmed.

We remind all Kenyans of the national values of social justice, rule of law, democracy, human rights and non-discrimination to help us forge a united and a prosperous Kenya.

Gertrude Angote-Executive Director

Kituo Cha Sheria

Prisoners’ right to vote.

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

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

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

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

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

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

Article 38 of the Constitution of Kenya provides:

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

Is this Right Applicable to Prisoners?

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

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

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

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

Situational Analysis: Kenya

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

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

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

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

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

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

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

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

Conclusion…

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

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

Samantha Oswago.

Advocacy Governance and Community Partnerships

Kituo cha Sheria.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Conclusion

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

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

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

 

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.