PETITION TO THE MANAGING DIRECTOR, KENYA FERRY SERVICES ON CONCERNS OF CIVIL SOCIETY ORGANIZATIONS AND THE PUBLIC ON SERVICE DELIVERY AT THE FERRY SERVICES

The Managing Director, Kenya Ferry Services (KFS);

7th November 2019

The Civil Society Reference Group (CSRG) is a broad coalition of CSOs, religious organizations and non-state actors operating in the Coast Region with the core mandate of protecting and upholding Human Rights.  

The import of this Petition is raise with you, a number of issues emanating from our membership and the Community at large about operations of the Kenya Ferry Services in recent times. We thus look forward to you for responses and solutions to the same.

It is our standpoint that the key business of the Service is transporting passengers and their property. The same is expected to be done in a manner that respects Human Rights of commuters, international safety standards and in a manner that manifests professionalism at the Ferry Service:

As such we raise the following concerns:

  1. It is in the public domain courtesy of your pronouncements at a Parliamentary Committee that three ferries Mv Nyayo, Mv Harambee and Kilindini are considered out of international standards. They are considered unseaworthy. It is our position that this is endangering the lives of commuters and those ferries should be replaced forthwith;
  1. In 2018, the Auditor General said he could not confirm the accuracy of claims of the building and supply of two ferries that cost KSh. 2 billion. We have reports that there are several strands of corruption involving staff seeking stipends from the public. Yet, we are yet to see prosecution relating to allegations of this kind. We state that the service should address this matter with the seriousness it deserves to enhance accountability and win public confidence.
  2. What is the fate of the land of the Kenya Ferry Service that has been grabbed and is in the hands of private individuals?
  3. The following reported incidences form part of the account that we consider as looming crisis at the Service:  
  1. On October 26, 2015, eleven people were seriously injured in a stampede at the channel as hundreds of commuters scrambled to access the ferries.
  2. On May 9, 2016, MV Nyayo was pushed by tides off the Likoni channel towards the deep sea with commuters onboard. It was towed to the inland after reinforcement;
  3. On December 15, 2016, GSU officers had to be called in to calm commuters at the Channel following the breakdown of three ferries. For about five hours, only MV Likoni was operating. The other three ferries – MV Kwale, MV Harambee and MV Nyayo – developed mechanical problems and had to be withdrawn.
  4. On 19th March 2018, MV Nyayo was withdrawn from service after a technical hitch. MV Jambo was also withdrawn from the channel under similar circumstances.
  5. On 20th March 2018, MV Jambo stalled in the middle of the Ocean.
  6. On September 2018, there was heavy traffic at the Likoni crossing channel after three ferries developed engine problems and broke down.
  7. In August 2019, a ferry with over 1000 people almost collided with an oil tanker. The KFS admitted the fault three weeks later.
  8. It shouldn’t be lost on us that in 1994, MV Mtongwe ferry, capsized just 40 meters from the port. 272 of the 400 people on board died.
  9. We consider recent public pronouncements, especially on the recently launched strategic plan as falling short in addressing urgent commuter concerns. We hear more about bridges, cable cars, flouting restaurants and by-passes and not basic security and safety concerns that are here on daily basis.

The above trends have negative ramifications on investor confidence and pushes the coastal region to further economic challenges.  

On account of this statement, we state:

  1. The KFS Management should move with speed to restore confidence in Ferry Services, more sustainable than knee jerk reactions being observed;
  2. The findings of investigations into the incident of Amanda and her Mother Mariam be made public and prosecutions follow forthwith;
  3. That any other investigations/proceedings regarding the progress at the ferry include the voice of the public (Commuters) and findings be shared with the public;
  4. The Kenya Ferry Service should overhaul the ferries in place and purchase new ones that uphold respect and dignity of Commuters;
  5. The review of the Strategic Plan to reflect realities on the ground, specifically on safety of ferry users;
  6. Kenya Ferry Services to hire divers and train them to International Standards; this should be considered urgent;
  7. The matter of crowding at the waiting lounge and incidences of sexual harassment, theft, be urgently addressed- compare the SGR and Airport.
  8. The faulty security apparatus should be maintained and standards well maintained;
  9. Key question of the constitutionality of the management of KFS requires rethinking by policy makers. Unfortunately the Supreme Court threw this out on technicality.

We intend to have a review meeting after two months to monitor progress on areas of concern:

Signed:

The Civil Society Reference Group (CSRG)

Mombasa, Kenya

Occupation Health & Safety as a Disability Right: Is there a Lacuna in the Law?

Occupation and safety health laws refers to collection of constitutional, statutory and customary standards and obligations meant to ensure safety in the work place. This is a traditional and pivotal part of employee welfare program. It is engrained in the principles of labour relations. The idea that for employees to optimally be productive, there is need to make the working environment safe and accessible. Legally, international instruments such as Article 7 of the Convention on Social Culture and Economic Rights provides that employees inter alia are entitled to safe and healthy working conditions. The ILO has also come up with over fifty instrument all dealing with different aspect of safety at work.

These statutes distinctively deal with safety to prevent deaths, accidents and therefore work related disabilities. The Constitution of Kenya 2010 is silent when it comes to occupational safety and health in general. However, the Occupational Health and Safety Act, 2007 breaks down the issues that constitute occupational health and safety law. These include: rights and duties with regards to occupational health and safety, creation of an administration office to implement the Act, health safety, chemical safety, amongst others.

This paper is however concerned with three issues;

  1. Are occupational health and safety laws part of disability rights?
  2. How are occupational health and safety laws fused into disability laws and what’s the jurisprudence thereof
  3. What is the way forward and best practice?

Occupation Health and Safety as a Disability Rights

Disability Rights may be defined as those distinct rights elaborating sufficient standards of protection for civil, cultural, social and economic rights for persons living with disabilities on the basis of inclusion, equality and non-discrimination. These Rights were born out of the realization that persons with disabilities though are a part of the general population and social fabric; face unique challenges and situation that require legislative interventions.

Therefore, are occupational health and safety laws disability laws? The answer to this is in the affirmative. Persons living with disabilities form part of the workforce and therefore need specific needs with regards to occupational safety and health. There is need to make a distinction that while the general laws are meant to prevent and protect against disabilities- occupational   safety and health as a disability is after the welfare and safety for persons with disabilities. It ideally asks the employees to ensure that their places of work are not only disability friendly but safe.

Occupation Health and Safety within Disability Law

Disability laws in the Kenyan context consist of the Constitution of Kenya 2010, Convention on the Rights of Persons with Disabilities and Persons with Disabilities Act No. 14 of 2003. Having established that occupational health and safety is an integral part of disability rights. It is important to interrogate if this is covered in the disability laws.  Disability Rights are given a spotlight in Article 54 of the Constitution of Kenya 2010.  While the supreme law does not directly speak of occupational health and safety, the law requires employment of 5% of persons with disabilities to every appointive and elective position. 

The Constitution of Kenya 2010 also reiterates the obligation to treat persons with disabilities with dignity. This in no uncertain terms means inclusivity and therefore boils down to access and safety at the work place. In addition to this, access and free movement for persons with disability is also a key element of Article 54.

The Convention on the Rights of Persons with disabilities which is part of the laws of Kenya pursuant to article 2 of the Constitution 2010, gives member states an obligation to ensure that persons with disabilities have access in the work place; are appreciated for their skills in the labour market and work in a safe environment. The Parent Act- the Persons with Disabilities Act, just like the Constitution of Kenya; while it touches on related provision on work, access and the standards of public building; it is silent on matters of safety at work with regards to persons with disabilities.

What about Jurisprudence from the Courts? 

A lot of matters regarding disability rights and mainstreaming have been canvased within the legal system since the promulgation of the Constitution of Kenya in 2010. There is however very little jurisprudence on the matter of occupation health and safety for persons with disability. The prevailing attitude is one looking at these provisions as preventive of disability but not rights for persons with disabilities.  Is there a lacuna in the law?   

Which Way Forward?

The Convention on the rights of persons with disability promotes integration and disability mainstreaming. This means having an inclusive look in every aspect of life for a person with disability. While prevention is key, disability laws majorly focus on those with disabilities. Occupational health and safety laws would therefore ensure that these persons are safe at work and are able to be productive in spite of disability.

I therefore propose the following interventions: –

  • There is need to change the attitude on disability. Kenya has to start looking at persons with disabilities as an integral part of the society. I therefore propose an integral and inclusive way of looking at the law and resultant jurisprudence.
  • Legislative interventions- there’s need to amend the parent disability statute to include matters of welfare, health and safety in the workplace for PWDs.
  • There is also need to have awareness in this subject. Create rules and regulation- subsidiary legislation that touches on specific hazards are meant to protect the vulnerable such as PWD’s in case of emergencies at the place of work.

By:

Ouma Kizito Ajuong’

Advocate of the High Court of Kenya

https://www.facebook.com/pennyformythoughtsKZ

https://www.poeticfountain.com/thevoiceofafrica

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


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

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

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

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

Age of Sexual Consent in Context

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

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

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

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

The Law of Age of Sexual Consent in Kenya

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

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

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

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

Lowering the Age of Sexual Consent in Kenya

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

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

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

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

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

Way Forward

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

By;

Ouma Kizito Ajuong

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

Advocate of the High Court of Kenya

This is what Sports can do for Kenya: My Letter to President Uhuru Kenyatta

Dear Mr. President,

A fool is described as someone who does something in the same way, every time, yet they expect different results. While this definition may not have customary acceptance, it carries with it a lot of scientific and logical sense which Kenya needs to listen to. I am not talking about the numerous scandals and headlines on corruption that colour our dailies. I am not also referring to the huge number of unemployed Kenyan youth. I am in no way talking about the inadequate education system that has turned out to be a train wreck. I am not talking of the nightmares of a poor public health system. Today, I am talking about sports. I seek to interrogate the question of sports in Kenya. As Mr. Rashid Echesa leaves office and Amb. Amina Muhammed takes over; I can’t help but wonder whether Kenya is still doing the same thing in the same manner and expecting a different outcome. What, therefore, do sports mean anything for Kenya? And what can it do for Kenya?

Sports mean different things to different people in Kenya. There is however no escaping the reality that Kenya is a global powerhouse in sports. As much as she is historically known to produce the best long distance runners (Athletics), she has quickly curved out a niche for herself in the world of Rugby. Kenya has something to say with regards to continental club championship as the home of football powerhouse- Gor Mahia. She can always be ever so proud of the likes of Wangila Napunyi who paid the ultimate prize in the ring while representing Kenya at the Olympics. This is just a glimpse of both the historical and present cluster of talent that makes the red, white green and black colours ride high. Unfortunately sports in Kenya go through a number of challenges top among these: lack of infrastructure, resources, poorly organized federation, mismanagement and lack of political support.

Like many of the challenges Kenya faces today, the rain started beating Kenya from the beginning. While sports associations were formed to help grow sports, in Kenya many people with political aspirations found them a fertile ground to mobilize political support. This left the federations hollow with no structures, system or sustainability. The previous regimes have not also taken sports seriously. There has always been very little in terms of budgetary allocation for the ministry and perhaps it is one of the ministries not seen to be important enough to be a loan ministry. Is it true that the sports ministry is one of those “small” ministries that is always given as a reward for political chorines or as a redemption platform for CSs who have failed elsewhere?  If this is true Kenya need not expect different results.

I must insist that managing sports in Kenya is not a walk in the park. It is perhaps one of the toughest ministries as it brings together different aspects and interests of Kenya. This therefore needs people with the right qualifications, skills, drive and perhaps ideas.  If done right, this is what sports could do for Kenya.

Sportsmen and women play a big role as Ambassadors for Kenya. As they put on the national colours and play their hearts out or run it down, they showcase the people, the character and culture of Kenya. As a result of this, Kenya is able to get tourists and investors who are willing hence spur economic growth. Sports business in terms of endorsements and sponsorships play a big part in generating money for the economy. It is not a secret that sports betting companies make a lot of money but as they do, the exchequer gets the tax and sponsorship to a number of sports and club. I must also state that there are a number of people who get their livelihood from sports hence the need to grow the industry. Today unlike the past, sport is a career that a young man or a woman can take on and build their lives. I bet a little more effort in developing sports in Kenya may go a long way in reducing youth unemployment but that’s just a thought. What if Kenya was ambitious enough to build infrastructure and host the next Afcon? 

Sport brings people together. It is never about gender, race or tribe but values of hard work, fortitude, belief and patriotism. Kenyans cannot deny that it is afflicted by tribalism and hatred for the minority and therefore what better way to eradicate this than with sports. The building bridges initiative which is part of your legacy as President can be best driven by sports. In addition to this, sports demonstrate Kenya’s culture. It brings people together to celebrate. Think of the fun, joy, pomp and colour that always accompanies Mashemeji derby in Nairobi and replicate that in the other 46 counties.

There are other benefits such as impacting values and skills and keeping the youth off drugs and other vices. This is because it often gives them an alternative way of life. I have heard of many inspirational stories of sports personalities who used sports to shield themselves from the life in the slums and made it out!

Lastly Mr. President think of the sports model as the model for politics in Kenya, here we walk in as friends, play our hearts out, compete so hard yet walk out as friends; perhaps it is what you desire for Kenya. I therefore urge you to put more thoughts into sports, get more personnel and demand more from your team

Yours faithfully,

Ouma Kizito Ajuong- Advocate of the High Court of Kenya

& Gor Mahia Fan

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


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

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

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

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

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

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

Economic Rights Perspective

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

Right to Human Dignity

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

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

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

Right from Discrimination

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

Rights to Affirmative Action

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

In Conclusion

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

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

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

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

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

By:

Ouma Kizito Ajuong

Advocate   

A case for mental health awareness as a means to access to justice

Aug 10-IPJDDying to be heard: Mental Illness impairs prisoners’ ability to articulate themselves during self-representation in court.

Our prisons are full of troubled minds…

Mental health care and awareness is deemed a luxury even for free citizens. The situation is especially dire for incarcerated persons. Stone walls and iron bars serve as a deterrent to proper mental health care provision, under the guise of proper retribution for past wrongs/offences.

Mental health conditions represent a different level of need altogether when compared with physical health needs among prisoners.

It is in light of the above that humane treatment of incarcerated persons suffering from mental illness is largely uncharted territory. Diagnosis of such ailments is often by untrained prison staff who more often than not fail to properly identify which mental ailment is suffered and subsequently, which proper treatment should ensue.

Some of the psychiatric conditions suffered by inmates include schizophrenia, bi-polar disorder and last but most commonly depression. This is as reported by some human rights officers that work within Kituo Cha Sheria’s Prison Justice centres.

The presence of mental illness and access to justice do tie in together in several ways. First and foremost, it impairs their (psychiatric cases) ability to articulate themselves during self representation in court. The vulnerability of their mental frame does not allow them to anticipate or prepare well for such instances. Self representation in court requires a degree of self awareness i.e. during cross examination. Therefore one can only imagine the negative effect an afflicted mind offers in such scenarios.

Secondly, the thought process behind taking certain decisions whilst in the trial process is greatly impaired if one suffers psychiatric ailments. Decisions such as which plea to take during arraignment, plea bargaining, the decision to appeal or seek for judicial review become difficult and open to unwarranted external influence. This almost always leads to a negative outcome if such persons are not sufficiently guided.

Thirdly, such conditions generally deteriorate if left neglected and this is certainly what happens during incarceration or remand detainment.

One would say that some of these conditions indeed do develop specifically because of the inmates’ new found condition behind bars.

A key case in point depression– an internal assessment of the new found situation that the now detained inmate finds themselves in often leads to dark depressive feelings such as hopelessness, despair and discontent. Such feelings   often externally manifest themselves through  dangerous behavioural traits  such as attempts at  suicide, aggression towards fellow inmates and all in all reckless behaviour.

Knowing our own minds is difficult even at the best of times. This is more so for those suffering mental /psychiatric conditions. Assembling this insight should then encourage the appreciation of the need to assist marginalised groups of persons such as inmates and remandees- a group of persons for who mental health care is a remote luxury. Given the strong relation between mental health and criminal behavior, the public health system has a great deal to gain from better mental health treatment among inmates, particularly in reducing the costs associated with high recidivism rates.

It is our hope as Kituo Cha Sheria that during this year’s International Prisoners’ Justice Day, mental health will be an issue that is fully appreciated as a need that should be met. It is only on the basis of this realization that mentally/psychiatrically afflicted inmates will be afforded much needed   relief and sufficient care.

Stand in solidarity in support of prisoners’ human rights today!

By:

Samantha Oswago

AGCP-Kituo Cha Sheria

Is the Law Effective in the Fight against Corruption in Kenya?

Opinion BlogIs the Law Effective in the Fight against Corruption in Kenya?

Literature review in the subject of corruption paints a picture of a phenomenon that is not only feared but also frowned upon. This may be because of its dynamic nature and ability to spread its tentacles through the social, political and economic spheres of society. Whether it is liked to a cancerous tumour or an enemy in the battle field, the bottom line is corruption is undesired. In Kenya, the conversation on the fight against corruption has lasted lifetimes. As much as corruption is not black in colour, it is one of the major attributes of the independent Kenya. Many pundits and political commentators have therefore openly attributed corruption to a bad colonial system Kenya inherited. While this may be true, fifty- years down the line, it is more of a very old and tired argument that helps Kenyans to blame other people for their mismanagement.

Historical records put the year 1956 as the first time an anti-corruption legislation were enacted in the country.  The Prevention of Corruption Act Cap 65 of the Laws of Kenya was enforced by a police unit known as the Anti-corruption squad up until 1993. This was because these were just preventive measure to protect the young nation from the dangers of corruption. However, today corruption has transformed into a vice causing irreparable damage to the country. Kenya’s economy is doing badly and she is in debt, she has institutions that are not trusted by the citizenry and a political class that either thrives in corruption or have failed in dealing with the vice.

Corruption is broadly defined as dishonest and illegal behaviour mostly by those in position of power. Acts like abuse of office, favouritism, sexual exploitation and bribery fall squarely within the domain of corruption. This article is dedicated to the law and how it has helped or may help in fighting graft.

The Constitution of Kenya (2010) is the first stop. Like any other written Constitution in the world, it lays down the governance structure, history and the aspiration of the people.

Kenya’s supreme law recognizes corruption and lays down the frame work to eradicate it. The Preamble to begin with, recognizes the aspiration of Kenyans and the values of intergrity and the rule of law. Article 1 gives sovereign power to the people of Kenya and not to State officers or people in power. Article 10 (2) further elaborates on the national principles and values of governance which include: transparency, rule of law and intergrity. Chapter Six on leadership and intergrity, sets out responsibilities for those in State offices, outlines a code of conduct, sets the rules on financial probity and restrictions on their actions. The Constitution of Kenya, 2010 ultimately is set with separation of power both vertically and horizontally that gives checks and balance that prevent abuse and ultra vires use of authority hence prevent corruption.

Is the Constitution effective? The supreme law gives the general framework and guidelines- and to that end it is very sufficient. The only gap is with the areas where Parliament is required to enact legislation. The standards of legislations from Parliament seem to have watered down the anti-corruption agenda

Kenya has signed and ratified a number of International conventions on the fight against corruption. These include UN Convention against Corruption (2003), AU Convention on Prevention and Combating corruption (2003). Further, Kenya joined its East Africa Community partners in forming the East African Association of Anti-corruption Authorities (2007). These instruments make Kenya an international player when it comes to the war against corruption. There is however need to domesticate these instruments and implement the law and recommendations.

The Parliament of Kenya has also enacted a number of legislations that help in fighting corruption. The Ethics and Anti-corruption Commission Act, sets up the anti-graft body which is meant to teach, set policy, vet public officers and prosecute corruption. However, this body and the mother law have not been effective for lack of capacity and insufficient political goodwill.

As much as the EACC is set to fight corruption it cannot do that effectively when they depend on other bodies for investigations and prosecution. The Anti-Corruption and Economic Crimes Act (ACECA), 2003 is the parent punitive Act that deals with issues of corruption. It is a break-away from the Penal Code as there was need to maximise the sentences as the State pays more attention to these offences. The Proceeds of Crime and Anti-Money Laundering Act, 2009 is a legislation that was made so as to try and reverse the effects of corruption. It protects public funds from public officers who love to pilferage funds

The Leadership and Integrity Act and Public Officers Ethics Act, 2003 are meant to regulate behaviour of those entrusted with public office. They are drafted from the background that leadership is a privilege and those in leadership need to be of the highest standards of intergrity. These Acts of Parliament have however not been effective. There is need to amend the laws so as to make those in leadership transparent about their wealth businesses and interest. The legislations should also bind public officers to certain qualifications and education standards.

Government Management Act, 2004 and Public Procurement and Disposal Act, 2005 deal with public money and procurement procedure. They are meant to ensure that taxes from Kenyans are put to good use however there have been loopholes in the legislations that have been exploited and therefore the need for amendments.

 In conclusion, the law is very broad and other than a few changes it is perhaps effective. The people whose work is to implement the law need to be more effective. Paraphrasing the words of former US President Obama… “while we may not be perfect, we can desire to be more perfect, step after step, mile after mile.”

By:

Ouma Kizito Ajuong’

Advocate