Reparations NOW: Highlighting the Right to Truth

truth reparations 1

Reparations NOW: Highlighting the Right to Truth

On 24th March 2018, the world marked International Day for the Right to Truth concerning gross human rights violations and for the dignity of victims. Civil society organizations under the umbrella network of the Kenya Transitional Justice Network (KTJN), together with the UN Office of the High Commission for Human Rights, the Attorney General’s office and development partners convened together with victims and survivors of past human rights violations in Kenya post independence to date.

The day provided an opportunity for all stakeholders to promote national dialogue on the reparations agenda and draw the society to the truth behind human rights violations that have been committed over the years and what Kenyans need to do as a nation to promote, protect and fulfill human rights.

The right to the truth here in Kenya is primarily enshrined through Article 35 of the Constitution on access to information. Other critical articles include Article 47 on fair administrative action, Article 49 on the right of arrested persons and Article 50 on fair hearing. The Truth Justice and Reconciliation Report (TJRC) remains one of the most decisive efforts in achieving the right to truth. Through the TJRC Report, the right to the truth has been invoked in light of the thousands of cases of extra judicial executions, the hundreds of enforced disappearances, victims of torture who remain unrepaired in places like Mount Elgon in Western Kenya, victims of sexual violence from various epochs particularly at the hands of security forces.

The right to the truth implies knowing the full and complete truth as to events that transpired, their specific circumstances, the identities of those who participated (and directed), knowing the circumstances those violations took place and why? To understand this, one only has to look at the Truth Justice and Reconciliation Report (TJRC Report) Volume 2A pages 221 to 366, in a bid to uncover the truth.

Unfortunately, many of the victims and survivors of gross human rights violations do not know the truth behind the violations done to them. Over 1,000 women who were raped in the 2007/2008 post election violence period and subsequent general elections by state security officers are among the many survivors seeking justice and compensation against these sexual violations.

In 2017, KTJN through the leadership of the International Center for Transitional Justice (ICTJ) presented a policy proposal for reparations of historical injustices to the Office of the Attorney General. The policy proposal provides a theoretical framework and guidelines for operationalization of the Reparations for Historical Injustices Fund subsequently established by President Uhuru Kenyatta in his March, 2015 State of the Nation Address.

The purpose of the Reparations for Historical Injustice Fund is to be the institutional framework for implementation of a program that provides reparations to victims of human rights violations committed or condoned by the State between 12th December 1963 and 28th February 2008.  The funds will also help in restoring the dignity of victims through acknowledging the wrongdoing, the harm suffered and the state responsibility to promote, protect and fulfill human rights.

The main objective of the policy is to guide implementation of a comprehensive reparations program that provides adequate, effective, accessible and prompt reparation that is; to the greatest extent possible, proportional to the gravity of the violation and the harm suffered, while integrating existing structures and programs to ensure efficient, transparent and accountable delivery of services to victims and the broader Kenyan public.

Implement the reparations fund…

Survivors of past human rights violations are therefore, urging the government to fast track the adoption and implementation of the reparations fund. Implementation of the fund will assist in alleviating the pain and suffering the survivors have endured over the years.

Faith Ochieng’

Program Manager

AGCP- Kituo Cha Sheria.

 

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Know your Labour Rights Vlogs Series

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

All you need to know about your labour rights!

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

Termination of Labour

https://www.youtube.com/watch?v=n0EPwe3csqg

https://www.youtube.com/watch?v=l5ptiNo_DzU

  • An employer is required to give reason of termination to the worker. If the employer fails to do this, the termination will be considered unfair.
  • Before terminating the employment of an employee or summarily dismissing an employee, the employer should hear and consider any explanations or reasons which the employee may give.

Reasons for Termination

For specific reasons

  • The employee is incapable of performing the job
  •  After receiving a final warning letter, the employee continues with misconduct or indiscipline
  • The employee suffers from prolonged illness that makes him/her unable to perform his/her normal duties

Summary Dismissal

An employee may be summarily dismissed for gross misconduct. Gross misconduct includes:

  • Absence from the workplace without permission
  • Being drunk at the workplace
  • Neglecting to perform any assigned work
  • Use of abusive language or behaviour in the workplace
  • Failing to obey a lawful and proper command that is within the employee’s scope of work
  • Arrested for a crime that can lands the employee in jail and is not released within 14 days
  • Committing a criminal offense against the employer or his/her property
  • Summary dismissal takes place without a termination notice. It is immediate.

Redundancy

  • This means the loss of employment where the services of an employee are no longer needed
  • Before declaring an employee redundant, the employer must meet the following conditions:

The employer must notify the trade union if the employee belongs to one and the labour office in that area. In the notification, which is given one month before, the employer must include the reasons for the redundancy.

If the employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;

Before declaring an employee redundant, the employer has to consider the work experience, ability, job group and reliability of the employee

  • The employer should give the employee one month notice or one month’s salary in place of notice
  • The employer should pay for the remaining leave days in cash
  • The employer should pay the employee severance pay of 15 days salary for every year worked

Termination Notice

If you are paid daily – either the employer or the employee can terminate the contract at the end of any day without notice.

If you are paid periodically at intervals less than a month e.g every 2 weeks or 3 weeks – either the employer or employee can terminate the contract by giving notice in writing equivalent to the intervals of payment. So if you are paid every 2 weeks, give a 2 week notice in writing of termination of employment.

If you are paid at intervals of one month or exceeding one month – either the employer or employee can give a 28-day notice in writing of termination of employment.

However, if you have a contract that clearly states when your services end or the period needed to give a termination notice for your contract – then you should follow what your contract states.

If an employee who receives notice of termination is not able to understand the notice, the employer should orally explain the notice to the employee in a language the employee understands. The employee should have another employee or union representative of his/her choice present during this explanation.

If an employee or employer terminates a contract without notice, then the following happens:

  • Employer- must pay the employee what he/she would have earned during the notice period. e.g. If you are fired without notice, your employer must pay you one month full salary
  • Employee- if you decide to end your contract without giving notice to your employer – then you will pay your employer what he/she would have paid you during the notice period. e.g. If you leave without notice, you must pay your employer one month full salary

Grievance Procedure and Institutions to approach

https://www.youtube.com/watch?v=3q6Ng9t2A9M

  • If an employee is not a member of a trade union, he/she should present their complaint or grievance to the immediate supervisor.
  • If there is no action taken, the employee should set an appointment with management.
  • If the matter remains unresolved, then the employee should file a complaint at the nearest labour office.
  • However sometimes the employee is forced to go straight to the labour office or the Industrial Court.
  • If an employee has been dismissed unfairly, he /she should present a complaint to a labour office within 3 months of the date of dismissal.
  • The labour officer will give an opportunity to both the employer and employee to give their side of the story and give recommendations on how to settle the dispute.
  • The employee also has a right to go to the Industrial Court to present his complaint. If the complaint is because of a contractual agreement, the complaint should be filed in court within 6 years. If it is because of injury at work, then the complaint should be filed within 3 years.
  • The employee must be able to show that he/she was unfairly terminated and the employer must be able to show the justification for termination.
  • An employee under probation or who has been summarily dismissed while under probation cannot complain at the labour office or at the Industrial Court.

NOTE: At the Industrial Court you do not need an advocate to represent you.  You can be represented by a trade union representative or you can appear in person ( self-represent). You can also hire an advocate if you want.

Remedies for wrongful dismissal and unfair termination

  • Where there was no notice given, the employee is entitled to the salary he/she would have earned had he/she been given notice
  • Where an employee is dismissed before the contract is over and the contract was such that the employee gets paid at the end of the contract and after completing his/her services, the employee is entitled to:-
  1. payment for work done until the time he/she was dismissed
  2. payment for losses incurred as a result of the dismissal
  • payment for losses arising between the date of dismissal and the date of expiry of the notice period
  1. money he/she would have earned had notice been given

Where an employee is unfairly dismissed, he/she may:

  1. be reinstated and continues to work like as if he/she was never dismissed
  2. not be returned to his/her original position but may be given similar or suitable work and be paid the same wages (re-engaged)

Before any recommendations are given, the labour officer or Industrial Court consider the following:

  • the wishes of the employee
  • the circumstances in which the termination took place, including if the employee caused or contributed to the termination
  • if it is practical for the employee to be reinstated or re-engaged
  • the employee’s length of service with the employer
  • the reasonable expectation of the employee as to the length of time for which his/her employment might have continued had he or she not been terminated.
  • the opportunities available to the employee for securing similar or suitable employment with another employer
  • the value of any severance payable by law
  • the right of the employee to claim for any unpaid wages or expenses
  • any expenses reasonably incurred by the employee as a consequence of the termination
  • any conduct of the employee which to any extent caused or contributed to the termination
  •  any compensation, including ex gratia payment paid by the employer and received by the employee.

Sexual Harassment

https://www.youtube.com/watch?v=1wHdBmnGdXU

An employee is sexually harassed if the employer or a representative of that employer or a co-worker:-

(a) directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity.

The sexual request may contain:

  • promise of preferential treatment in employment e.g if you have sex with me, I will give you a promotion
  • Threat of harmful or negative treatment in employment e.g if you do not let me touch your buttocks, I will ensure that you do not go on leave or I will make your life here a living hell
  • Threat about the present or future employment status of the employee e.g if you do not kiss me now, I will fire you
  • uses language whether written or spoken of a sexual nature
  • shows physical behaviour of a sexual nature that is unwelcome or offensive and which affects employment, job performance or job satisfaction.

An employer who employs twenty or more employees should have a sexual harassment policy at the workplace.

Sexual Harassment Policy

This Policy will contain:

  • Definition of sexual Harassment
  • A statement explaining that;
  • every employee is entitled to employment that is free of sexual harassment
  • the employer shall take steps to ensure that no employee is subjected to sexual harassment;
  • the employer shall take disciplinary measures against any person guilty of sexual harassment
  • how complaints of sexual harassment may be brought to the attention of the employer
  • the employer will not disclose the name of the complainant or the circumstances related to the complaint except during investigations or if the employee wants to take disciplinary action

Judgement

Anyone found guilty of sexual harassment will be imprisonment for not less than three years or will have to pay a fine of not less than one hundred thousand shillings or both imprisonment and payment of a fine.

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

Kituo cha Sheria

We Care for Justice

 

RAPE NOT A ‘COMMON GOOD’-Maslaha

Opinion Blog

This is in response to a sad story in Wajir where community leaders used Maslaha, an alternative form of dispute resolution, to settle a case where a 15 year old girl was repeatedly gang raped for 2 days by 3 men. [Daily Nation, 4th March 2018- https://www.nation.co.ke/counties/wajir/Goats-used-as-fines-for-rape-in-Wajir/3444790-4328392-nnkfxcz/index.html

Maslaha

The Legal term of Maslaha within Islamic Jurisprudence means ‘the common good’ or ‘in the public interest.’ This is unbelievable because now the question would be, ‘which public?’

Although Article 11 of the Constitution of Kenya recognises culture as ‘the foundation of the nation and as the cumulative civilization of the Kenyan people and nation’, rape is a crime against the victim and against humanity at large.

A person is deemed to commit the offence termed rape if – (a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; (b) the other person does not consent to the penetration; or (c) the consent is obtained by force or by means of threats or intimidation of any kind. (3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

A crime of rape is an injury not only against the affected individual(s) but also against the society. Crimes are prosecuted by the state, which in so doing protects the social and constitutional rights of all citizens. The Constitution of Kenya 2010 recognizes the need for Alternative Dispute Resolution (ADR) to be employed in seeking justice rather than the much hostile court process. However, crimes like murder, rape, robbery with violence are crimes against humanity and as such the offenders/perpetuators must face the full force of the law and must not be accorded an opportunity to get away with their inhuman acts through the guise of traditional norm of ADR.

This is due to the fact that such traditional and customary agreements are repugnant to justice and morality and pursuant to Article 2(4) of the Constitution of Kenya 2010 which categorically states that ‘’Any law including Customary law that is inconsistent with this constitution is void to the extent of the inconsistency, and any act or omission in contravention of this constitution is invalid.’’ Therefore, at a minimum, the prosecution should be consulted before having the reconciliation agreements and customary laws applied in resolving the criminal cases.

The Criminal Procedure Code under Section 176 provides:

‘In all cases the court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated.’

The Director of Public Prosecutions is the custodian of prosecutorial powers. Prosecution of offences is a public policy concern, and in preserving this power to preserve the public interest, he/she cannot be by passed in negotiations concerning charges against an accused person as in the case of Juma Faraji Serenge alias Juma Hamisi v Republic [2007] eKLRMaraga, J. (the current Chief Justice) in his ruling stated:

‘To the best of my knowledge, other than in cases of minor assault in which a court can promote reconciliation under section 176…. of the Criminal Procedure Code and such minor cases a complainant is not allowed to withdraw a criminal case for whatsoever reason. In any case the real complainant in all criminal cases, and especially so felonies, is the state. The victims of such crimes are nominal complainants. And the state, as the complainant, cannot be allowed to withdraw any such case because the victim has forgiven the accused as happened in this case or any such other reason. The state can only be allowed to withdraw a criminal case under section 87A of the Criminal procedure Code or enter a nolle prosequi when it has no evidence against the accused or on some ground of public interest. And even then when it has convinced the court that the case should be so withdrawn”.

Maslaha, which is an alternative form of dispute resolution mechanism, is recognized under Article 159 (2) (c) of the Constitution which provides that:

‘In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(c) Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)

Clause (3) of the same article states:

‘Traditional dispute resolution mechanisms shall not be used in a way that:

(a) Contravenes the Bill of Rights;

(b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or

(c) is inconsistent with this Constitution or any written law.

It should always be remembered that customary law is unwritten law but just a set of rules that exists in one’s mind and are passed on from one generation to another. This is due to the fact that there is nothing like customary law but what we have are customary laws as every community have a different set of beliefs all together. It is also imperative to note that despite the fact that the victims of offenses like rape subscribe to various customary laws that do not consider that injustice, they are still under the provisions of the constitution of Kenya 2010 and fully enjoy the rights of the said constitution. Therefore, the application of alternative dispute resolution mechanisms must be consistent with the Constitution and the written law of the land and check to ensure justice to both the offenders and the victims.

Equally, the Judicature Act in section 3(2) stipulates and provides that the customary law is only applicable to civil cases. It states that:

‘The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”

Therefore where the alternative dispute resolution mechanisms are to be used in the criminal matters, it is limited to misdemeanours and should not be considered on felonies.

By:

Jack Odiwa, Local Expert-AJS

AGCP-Kituo Cha Sheria

 

Cattle Rustling: The Human Rights and Constitutional Perspective in Kenya’s North Rift Region with Possible Intervention

Opinion Blog

Cattle Rustling v. Cattle Raids 

Cattle rustling as opposed to cattle raids in Kenya may be traced to the 90s; with the latter documented as a metamorphosis of the former. These two may be distinguished by the kind of weapons that accompany the activities, the motive and the societal impact. Conducting cattle raids is an activity synonymous to ‘culture’ in most African Pastoralist Communities. They were conducted using sticks and crude weapons and with the aim of getting wealth for those who were poor and disabled in the community. It is also important to note that there was no killing and destruction of property. The agenda was to scare the owners of the cattle as they drove them away. However, today cattle rustlers employ the use of guns, massive destruction and loss of properties, injuries and sometimes death. There is also uncertainty and fear that engulf communities in the North Rift Region hence affecting trade, schooling and the general day to day life. The motive is different too, while in the past it was all about mutuality, today it is a commercial activity which recent media reports attribute to cartels and political leaders in the region.

At a chancery glance cattle rustling appears uncouth and primitive yet with all the laws, education, modern technology and a rapidly developing country, people still die, property is lost and the police and Government agencies maintain a defeatist attitude. This paper reflects on cattle rustling from the lense of property theory, it builds a case against the vice from a constitutional legal and human rights perspective and finally offers a few solutions to the problem.

John Locke’s property theory in the Second Treaties of Government interestingly may explain the situation. He explains that property in the ancient times was communally owned as they were given by God. Individual rights to property were only gained through an individual’s industry. The best way to explain this is the example of fishing. An individual cannot claim all the fish in a lake but by virtue of putting industry and going out to catch fish, they own what is caught. Likewise, cattle raiders assume that cattle are communally owned and given by God and by putting their industry (going out for raids); this gives them property rights. Therein lies the disconnect, we have a people who believe in an ancient concept of property in a world that has moved past that theory and a Government which assumes that these communities understand rights in rem and personam. Studying this subject does not excuse the unruly manner in which this happens however, it is clear that it may not but be a simple case or robbery and violence but a tradition grounded in strong canons of property theory. One way to solve the problem of cattle rustling may be by putting in place policies and making steps towards revolution of the concept of property among these communities. Before we get into that, what are the human rights and constitutional implications of cattle rustling?

The Constitution of Kenya, 2010 is grounded on the principle and value of the rule of law. This principle envisages a situation where there is a standard law that everyone needs to adhere to regardless of status in the society. Applied to cattle rustling in the North Rift Region, the rule of law means respect for one’s property and life. Adherence to the rule of law further means acquiring firearms in accordance with the law. Article 40(1) of the Constitution expressly permits individuals, association or even communities to own property. Article 26 (1) of the Constitution further protects life and finally Article 28 deals with human dignity. It is therefore clear that “cattle rustling” is not just a breach of human rights but it is unconstitutional.

The Penal Code (Cap 63) laws of Kenya also touches on a few things related to cattle rustling that make it an offence. Murder in Section 203 is the first which carries a sentence of death or life imprisonment upon conviction. Section 220 is attempted murder which also attracts a punishment of life imprisonment. Assault causing actual bodily harm in Section 251 always occurs a misdemeanor that carries a sentence of five years upon conviction. Robbery with violence in Section 295 which carries a sentence of death upon conviction may also be another count. Section 322 deals with handling stolen property. This is a felony which attracts a sentence not exceeding fourteen years imprisonment upon conviction. Section 333 deals with arson which attracts a prison sentence of fourteen years upon conviction. The Fire Arms Act is another legislation that makes cattle rustling an offence.

International laws further prescribe certain rights which cattle rustling contravene. First is the United Nation Covenant on Social, Economic and Cultural Rights. Cattle rustling activity unsettles especially the Marakwet and Pokot communities such that they cannot grow socially and economically. Some people in these communities have migrated to other places because of fear of cattle rustling. This vice is also in contravention of the United Nation Convention on the rights of the child. This comes to play as children are always some of the most vulnerable and often victims of these raids.  There are also young girls who are forced into early marriages so as to get protection from cattle rustlers. The Convention of elimination of all forms of discrimination against women (CEDAW) further frowns upon cattle rustling because just as children women are also victims of these circumstances and always bear the heaviest brunt. Finally, there is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT))  which also condemns the activities of cattle rustling.

The most disturbing thing in this is that while the law is sufficient, this activity keeps thriving with very little prosecution or success in combating the vice. Several leaders, politicians always talk tough but that seems to be all that goes on.

The possible measures and inteventionary steps include:-

Firstly, there need for advocacy and sensitization against cattle rustling among these communities. For a long time these pastoral communities in Kenya have been marginalized. They were either rubbished or left to their own devices hence they still hold on to this ancient and outdated concept of property. This has even led to a misdiagnosis of the actual problem, hence branding it a cultural problem. The Sapana cultural rights among the Pokot may encourage young men to get cattle but if they understood the modern conceptualization of property ownership in modern day Kenya and the criminal consequences, this may not be a problem.

Advocacy helps in teaching the law, opening up the community, disarmament efforts and changing the mindset of these people.

Secondly, the National and County Governments as well as traditional community leaders need to work on modernization of pastoralism as an economic activity. Employing modern methods in taking care of their animals such as ranching may require that they work with a specific number of animals, may improve the yields, and help them get better market prices hence help in eradicating illiteracy and levels among the communities. This also opens up the areas in terms of roads, access and infrastructure.

Thirdly, the Government needs to stop talking tough and properly enforce the law. The biggest catalyst of cattle rustling is the availability of illegal guns and light weapons.  If these guns can be taken out of the equation it will take the sting off.

Police administration need to take this seriously and clean these communities and if they can’t why not get the military involved. Criminal law may kick in, with arrests being made and guilty persons convicted. When this is done cattle rustling may be finally recognized as an offence it is rather than a cultural activity.

Finally, cattle rustling has nowadays taken a commercial dimension with political patronage. The challenge here is that some politicians provide the weapons and the market for the stolen cattle. As much as it may be uncomfortable, the best way is to cut off the head. These politicians should be arrested so that peace may prevail.

Conclusion

In conclusion, cattle rustling is a problem that touches on a number of areas within the fabric of society. Whenever these raids take place it is a question of tribes and ethnic groups living together, it is a matter of security, human rights as well as social cultural and economic issue that the Kenyan government should take seriously.           

  By:

Ouma Kizito Ajuong’

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

 

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

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