REBUILDING THE IEBC: KENYA’S QUEST FOR A STABLE &SUITABLE ELECTORAL MANAGEMENT BODY (EMB)

REBUILDING THE IEBC: KENYA’S QUEST FOR A STABLE &SUITABLE ELECTORAL MANAGEMENT BODY (EMB)

Electoral justice is one of the predominant themes of 2017 general elections in Kenya. While it carries with a number of components, a strong, stable and suitable electoral management body (EMB) is crucial. The quest for an independent and impartial election administrator has however eluded Kenya for a long time. The last couple of months have helped fortify this position as the Chebukati-lead IEBC has treated Kenyans to political leanings, bias, public wrangles, unprofessionalism, bangled elections, accusations and counter-accusations punctuated by public resignations of commissioners hence facing imminent disbandment, contrary to the letter and spirit of the Constitution of Kenya 2010 and International standards of election management. This article is dedicated to question of stable and suitable electoral management body for Kenya. How can Kenya break the jinx of incompetent EMB’s? Can Kenya finally get it right with an EMB? Which is the road to achieve this, legal or otherwise?

Centrality of EMB’s to Electoral Justice   

The concept of electoral justice is three fold, thus: ensuring that each action, procedure and decision relating to the election process complies with the legal framework, protecting and restoring electoral rights and giving people who believe their electoral rights have been violated, the ability to file a challenge, have their case heard and receive a ruling. These cannot be achieved without a proper, functional, stable and suitable EMB. In retrospect, if the election administrators deliver free, fair, credible, verifiable and lawful elections then, the need for electoral justice vanishes. The lack of a proper EMB in Kenya has over the years plunged Kenya into a constant need for electoral justice.  This has metamophosized into election violence witnessed in 1992, 1997, 2007 and 2017. Furthermore, Kenya has heard numerous changes and failure of election managers and administrators pointing to the instability hence the need to rebuild and find a solution. What does history say?

Historical Appreciation of EMB’s in Kenya

Elections in Kenya can be traced back to 1963. The first of them termed as “the pre-independence election” pitting KANU against KADU. These elections were conducted by the provincial administration but were seen to be free, fair and credible as there was no incumbent. By 1966 the tide had turned, “the little general election” meant to neutralize Vice- President Jaramogi Oginga Odinga began the journey to election turmoil in Kenya. The elections were more or less managed by KANU and the Provincial Administration whose duty was to please President Kenyatta and Mboya. KANU and President Kenyatta’s cronies kept on killing the opposition, weakening the democratic space and manipulating the election managers. This habit was picked up by President Moi, climaxed in 1988 by the Mlolongo elections where, manipulation of election results, intimidation, electoral violence were the order of the day, presided over by a dysfunctional EMB.

 President Moi eventually instituted minimum electoral reforms and allowed for multi-party elections in 1992. He attempted to create the first electoral commission in Kenya, however these gains were quickly washed away as they were all appointed by the incumbent and were marred by controversies. He then attempted to create an impartial electoral commission in 1997. Unlike 1992, this time, he appointed commissioners from a list provided by opposition parties under the Inter-Parties Parliamentary Group (IPPG). This did not however change perception of bias, rigging and incompetence of the EMB.

In 2007, the symptoms of a bad EMB turned into a full-blow disease. The Samuel Kivuitu ECK found itself in the middle of a storm. The election was flawed and the EMB failed to establish the credibility of the tally process to satisfy all the parties and candidates.  Significant, is the post- election violence that almost plunged Kenya into civil war.  For the first time, Kenyans were indicted at the International Criminal Court (ICC) for crimes against humanity, displacement of populations amongst others. It was a manifestation of a broken system. This made Kenya to stop and reflect. Under the stewardship of President Mwai Kibaki and the Rt. Hon. Raila Odinga lead Kenyans to a new constitutional  dispensation that was meant to inter alia get elections right. 

Through the Constitution of Kenya 2010, and the Act of parliament, there was a change of name of EMB, structured leadership and functions. Most important was method of appointment to ensure that the commissioners are professional, impartial and credible. This desire was however not achieved as Isaac Hasan Commission was again disbanded over controversy after 2013 general elections. Like the Kivuitu Commission and Moi’s electoral Commission, they were marred by allegations of bias, favourism and corruption. Again parliament through a joint parliamentary group lead by Sen. Orengo and Sen. Murungi amended the law and set the stage for a new Electoral Commission. Kenya has however remained at the same place as the Chebukati-lead Commission was responsible for bangling the 2017 presidential election. They have played out their bias in the public gallery. The Commission and the secretariat have been at odds over corruption allegations and with their days are numbered.

So, why is Kenya revolving around the same place with regards to EMBs? If history is to go by, Kenya’s election managers seem to have a life expectancy of five years. This kills stability and institutionalization of elections. Time has moved and with it revolution of the law, however, there is need to rebuild the IEBC and to find stability.  Which is the route for this?

Making the Appointment of Commissioners an Apolitical Process

There is one common denominator in all the EMBs since the conception of elections in Kenya. They are highly politicized. The politicians from the Government, opposition or parliament always wants to manipulate or influence the process of appointment of officers or commissioners of the EMBs and the working of the commission.. Inspite of the law advocating for a competitive and professional process in appointment of commissioners, the politicians still find a way to influence who is appointed. This means that although Kenya seems to have moved on, the mentality is that of the IPPG in 1997. This leads to a short lifespan for the commissioners as politicians interests are often short lived. In addition to this, are the wrangles and bias within the commissioners as a result of loyalties to different parties and politician as manifested by the present IEBC.  One solution for this is to kick or minimize political influence. Public participation and Kenyans owning the process may also help in changing things and getting people who are professional as well as neutral in the commission. The other proposal has been to get foreigners-especially for the leadership- who have the education and experience to run election in Kenya. Given that they are foreigners, they may not owe allegiance to the politicians and hence neutrality and impartiality.  

Legal and Legislative Framework for the EMB

The Constitution of Kenya 2010 promulgated in the backdrop of the 2007 post-election violence was meant to provide principles and a road map to free, fair, credible and verifiable election processes. The IEBC is established in article 88 of the supreme law. The law is elaborate on the procedures of appointment and the functions of the commissioners.

The IEBC Act No. 9 of 2011 further elaborates on function and composition of the commissioners. There is however, need to amend the law to synchronize the functions of the secretariat and the commission. Another area of amendments could be section 30 of the IEBC Act. Those who run elections in Kenya need to be held personally responsible when elections go wrong. If this is done, future leaders will not take election management as a joke as they presently do. There may be also amendments with regards to the structure of IEBC. The rationale for this is if there is need to change, then, change of personnel only is not sufficient.   

Civic and Political Education for Kenyans  

Developing a political culture which is bread by civic education may help in building a stable IEBC. Kenyans need to understand the pivotal role played by the IEBC. There is need to understand the relationship between democratic elections, leadership, development and the needs of the people. Kenyans need also to understand the working of IEBC and the avenues for challenge in the event of a complaint. Civic and political education may also help Kenyans to deal with the ghost of the past. Elections officials should be protected from intimidation and violence and not at the mercy of politicians. It is ok to play the tune of our favorite politicians and support or condemn the IEBC whenever it is relevant, however,  that will not help Kenya institutionalize elections   

The IEBC and the Other Agencies

The IEBC should be aided by the other Government agencies. One of the major reasons for their failure is that they are always looked at in isolation. Other than the police and the ministry of interior, the office of the Attorney needs to be very active to ensure that EMB’s always abide by the law. The Office of the Director of the Public Prosecution has a role to ensure that those who commit electoral offences are convicted, inclusive of senior election officers.    

In conclusion, it is important to rebuild the IEBC. It may be important for President Uhuru Kenyatta and the Rt. Hon. Raila Amollo Odinga, along with parliament to critically look at these issues and perhaps consider change of tact and philosophy when dealing with IEBC

By

Ouma Kizito Ajuong’Advocate

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CHUFF FROM THE GRAIN: A STEP INTO THE CONSTITUTIONAL AMENDMENT DISCOURSE IN KENYA

CHUFF FROM THE GRAIN:  A STEP INTO THE CONSTITUTIONAL AMENDMENT DISCOURSE IN KENYA

While it is true that most constitutional amendments and/or legal milestones are often conceptualized as a political process, it is not always just politics. The need for constitutional amendments as amendment of any law thereof is born out of the fact that societies evolve and change. Law as a normative factor must therefore serve the needs of the times. Mwalimu Julius Nyerere liked countries to growing babies and Constitutions to babies’ clothes. He therefore opined that as babies grow, it is only practical that they get bigger clothes. This must however be distinguished from political play. Constitutional amendment process need not be left at the whimps of the politicians as they are often myopic and their game is all about power.

In Kenya, the Independence Constitution was amended a couple a times in a bid to expand the democratic and political space. It is however important to remember that the first of these amendments were made with intentions to create an imperial and centralized presidency. This is what happens when you leave it for politicians as Kenya did. The Constitution (2010) is however different. It was created as a people centered document with referenda or popular initiative as a means to change or amend the most significant parts of the law. This has not deterred the current political debate on constitutional amendments.  There are politicians who believe that Kenya has evolve and needs change on one side, and those who see the call for referendum an unnecessary distraction at a time for work and economic growth. This article doesn’t think these calls are a waste of time, but there is  need to separate  the grain from the chuff, thus, areas  that  need amendments and areas that may not need right now

The Constitution of Kenya 2010 is based on a presidential system. The president is inter alia the Head of State, Head of Government and Commander -in- Chief of the Defense Forces as stipulated in article 131 of the supreme law. Furthermore, article 132 of the Constitution of Kenya sets out the functions of the President to include, submitting reports to Parliament on different issues.  Parliament ought to be independent pursuant to article 95 and 96 of the Constitution 2010; however, Jubilee Party tyranny of numbers has led to questions as the opposition’s ability to offer alternative leadership

There are number of Constitutional amendments that have been proposed in this regards. One of these proposals is a Rotational Presidency System to replace the Presidential System. The essence of this is the argument that the Executive as currently constituted is thine and not as inclusive as required. Under this proposed system, the people chose a few people and they take turns in leading as President, while the rest are Cabinet Secretary.  If the Presidency is to be rotated, it may take away the sting from the position. Moreover, all Kenyans will own it as opposed to a few tribes. The proponents of this proposal insist that Rotational Presidency may save Kenya from periodic divisive election, characterized by violence, loss of property and life.  There are more questions with this proposal as Rotational Presidency takes direct power from the people for a long time. The criteria for picking or electing those who will be rotated is not so clear, most likely it will be for the elite. There is also no guarantee that these elected elite will not hold the Government ransom or begin internal wars. This system of Government also makes it hard to do checks and balances as there is no opposition

The Other proposal is to change Government from a Presidential System to a Pure parliamentary System, where instead of a President there is an Executive Prime Minister as head of Government and Commander-in-Chief of the Defense Forces. Under the Constitution of Kenya 2010, the President and the rest of the Cabinet is subject to very little Parliamentary scrutiny pursuant to article 132(1) c and 152(3) of the Constitution of Kenya. The proponents of this system say it is the most ideal for a multi-cultural society like Kenya. This system however means that the Parliament rather than the people. Other than politics, as lawyers, the difference between a presidential and a parliamentary system is as good as the people managing the system.

There is also a proposal to expand the Executive and introduce the Office of the Prime Minister and two Deputies, in addition to, the President and his Deputy. This system anticipates sharing of Executive power between the President and the Prime Minister. Uganda and Tanzania are prominent for this system save for the design of the system. The opponents of this proposal are concern over a blotted Executive. If this is to be added the two-tier legislature the questions of the big wage bill is still with Kenyans.

There is also no Guarantee that a bloated Executive will solve the problem of inclusivity. The only thing one can be sure is this system will benefit the elite.

Lastly, there is a proposal fronted by the former Prime Minister Rt. Hon. Raila Odinga. He feels that the Constitution needs to be amended to introduce a third tier of devolution. Odinga is seeking to make counties economically viable by going back to the fourteen economic blocs as proposed by the Bomas draft. This means that Kenya will have to build devolution upwards as well as downwards While Odinga’s intentions are noble, the ethnic politics within the counties may not give way for such amendments. There is so much ethnic colonization of Counties in Kenya. The other is the public wage bill as well as blotted elections which is already an issue

There are areas that need amendment in the Constitution of Kenya 2010. Some of these have been tested by the system over the ten years after the promulgation of the Constitution 2010. These are areas where the Constitution has remained silent when confronted. As much as the  Supreme Court is equipped to give advisory opinion under article 163(6), there is need to reconcile these with the law hence amendments.

 Article 1 of the Constitution of Kenya 2010 gives sovereign power to the people of Kenya. This can be exercised directly or indirectly. When it comes to indirect exercise, it is clear, as Kenya the subsequent chapters that are elaborate on representation and separation of powers. The silence of the law is loud with regards with direct exercise of sovereign power. The law gives citizens a choice, but to what extend can they exercise these powers directly? Do citizens in Kenya really have a choice to reject the institutions and exercise the sovereign power? This provision in the Constitution of Kenya 2010, need to be amended so as to take away the ambiguity.

The other area that may require amendments is articles 93 and 96 of the Constitution of Kenya 2010. The constitution was built on a triple legislative structure. They include, National Assembly, the Senate and the County Assemblies. This has created a lot of wrangles, double work and a huge wag bill. The Senate was created so as to develop legislation for checks and balances and to enable devolution. This is work that should have been given a time limit as Kenya strengthens the County assemblies. As much as scrapping of the Senate may  be a very contentious issue, it may save the wage bill and devolution will make more sense  when and if the County assemblies are strengthened in terms of finances, professional capacity, the breath of legislation and the economic viability  of the Counties. If this is to be done, there may also be need to amend the enabling Acts of Parliament. 

Related to this is the position of the women representative. There are proposal to the effect that it should be scrapped off. The reality so far is that as much the position helps in getting to Gender parity, there is very little they can do little without a fund. The same story is told of the Members of Parliament who represent special group. Scrapping these off gives Kenya an opportunity to rethink representation. The idea of representation today is just for show and it doesn’t help in transforming the Kenyan society. 

Election matters in Kenya have also revealed a lot of gabs in the law. The questions of repeat election, pursuant to article 140, need to enumerate so as to bring clarity. There are other areas that may need clarity such as what needs to happen when a candidate withdraws from a presidential race. There have also been calls to extend the timelines for determination of Presidential petitions.

Lastly, there are the questions of assumption of office of Deputy Governors in the event of death or incapacity. The Constitution 2010 in article 182(2) set the Deputy Governor to take over for the rest of the term in the event of a vacancy. This provision is seen as cheating the voters especially in the event of death and where it takes place in the beginning of the term. This article may be amended to provide proportionality, to say that the Deputy Governor is to take over when the Governor has spent about half their term.

By;

Ouma Kizito Ajuong’Advocate

Embracing Alternative Dispute Resolution (ADR) Mechanisms in Dissolution of Marriages and Matrimonial Property Cases

Embracing Alternative Dispute Resolution (ADR) Mechanisms in Dissolution of Marriages and Matrimonial Property Cases

Family may be defined as the basic social unit that builds up a society. This is made possible by the right to marry. The right to marriage is therefore not only sacred but also facilitated and protected by the laws of the State. This is to the extent that divorce and dissolution of marriages is frowned upon as a matter of public policy. The Constitution of Kenya 2010 through article 45 (1) reiterates the centrality of family as a unit of society and as so it is to be protection. Article 45 (2) provides for the right of every adult to marry.  

The International Convention on social, Cultural and Economic Rights through article 10 (1) also recognizes the status of family.  This does not however mean that marriages do not get dissolved. It does not mean that families do not split. As much as the last census indicate that only about 1.5% of marriages end in divorce, these statistics may have just turned on their heads in the last eight years. This is considering the rapidly changing society and moral fabric. Simply put, there is likely more divorces and dissolution of marriages today as opposed to the past even with the reforms. This translates to more cases that take a long time for the courts to settle and everyone loses. ADR mechanisms are already in use in solving family disputes and dissolution of marriages especially customary law marriages in the form of TDRM. This paper however seeks to expand the idea to include, negotiation, mediation and even arbitration use in dissolution of marriages contracted by statutorily. Why not give parties to a divorce an option of ADR as opposed to an adversarial system?

Divorce and matrimonial property causes are ripe-so to speak- for the use of ADR mechanism. This is because of their personal nature. As much as they are regulated by State, family law falls more in the realm of personal law distinguishable from territorial law as discussed in the landmark case of Virginia Edith Wamboi Otieno V Joash Ochieng Ougo (1986) e KLR (S.M Otieno Case) The Constitution of Kenya 2010 in article 45 (4) (a) alludes to the personal nature of these cases. As much as many don’t think of them in that way, marriages exhibit the characteristics of contracts. They are based on consent, it is only a preserve of adults and there is an agreement resulting to rights and duties within the marriage.  It may therefore not be wrong to give the parties a chance to choose on how to dissolution their marriage or share matrimonial properties as we readily do in contract law.

The Aspect of matrimonial Properties through the reforms in family law has made divorce matters more contentious.

The Constitution 2010 in article 45 (3), opens the door to matrimonial property law. It states that parties to a marriage have equal rights before, during and after a marriage.

Therefore this introduces matters of division of properties and custody of children. The jury is still out on whether matrimonial property Act applies to customary law marriages but   what if parties to of a divorce were allowed to negotiate or mediate or go through arbitration as opposed to the adversarial system of litigation?

The personal nature of matrimonial causes always carries with it emotions and personal feelings. Sometimes they tend to get nasty and a lot of dirty linens get washed before a stranger (Judicial Officers) and sometimes the public. This can be solved by use of ADR mechanisms as parties have the flexibility to choose an adjudicator or even the venue and procedure of solving the cases. The adversarial nature of litigation does not always help in dealing with underlying issues that often characterize matters of divorce and matrimonial causes.

What are the advantages of ADR as opposed to litigation in matrimonial causes? If ADR mechanism where to be embraced fully, this will help ease the backlog of cases and allow judges to deal with cases that cannot be solved through ADR. The judiciary has been dealing with the issue of backlog for a very long time and perhaps this proposal may help as part of the solution. This will also help in expanding the area of ADR hence more work for arbitrators and mediators

The other advantage is expeditious disposal of cases. The Constitution 2010 in article 159 is crafted with the maxim justice delayed is justice denied. It encourages the use of ADR and TDRM, mechanism. If parties to a matrimonial cause are allowed to do ADR, there are chances that the matters will be handled expeditiously. This is because matters such as the calendrers are controlled by few people as opposed to litigation. The rules of evidence and matters of trial are different. This is also advantageous for couples who do not want to be dragged down by divorce cases

Lastly, there is the issue of cost. This is however relative depending on the method of ADR those parties may choose. If it is to be done expeditiously, it may be cheaper and worth it as ADR has also the reputation of giving win-win results as opposed to litigation which is adversarial in nature

In conclusion, the only thing that may work against embracing ADR fully in matrimonial causes is the feeling that it may be abused and therefore break the public policy that frowns upon divorce. This argument is however a see-saw as ADR may also be very instrumental in maintaining the public policy

By:Ouma Kizito Ajuong- Advocate

MORALITY OR HYPOCRISY? PUTTING THE RAFIKI FILM CASE INTO PERSPECTIVE

MORALITY OR HYPOCRISY? PUTTING THE RAFIKI FILM CASE INTO PERSPECTIVE

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness”

The brief facts of the case are that Ms. Wanuri Kahiu, the writer, director and co-producer of Rafiki sued KFCB and its boss Ezekiel Mutua for banning the film Rafiki. This film was banned for promoting lesbianism and homosexuality in Kenya.. Rafiki is a love story about two teenage girls who develop a romantic relationship which is opposed to their community and family. The High Court temporarily lifted the ban to allow the film to be considered for an award at the Oscars. This has however been received with mixed feelings. Mr. Mutua for instance termed the film a tragedy and a shame that cannot define the Kenyan culture.  He insisted that gayism was not Kenya’s way of life.

KCPF which is a Christian organization has also had something to say. They contended that 80% of Kenya’s population is Christian. They further state that it is a matter of family which is defined and protected by the State. In reference to the Constitution, they insist that homosexuality or gayism is illegal.

These submissions can however be contrasted with the reality. As much as Kenya claims to be moral and Christian, the traffic on Rafiki film after the ban was temporarily lifted is amazing. The film has also apparently done so well hence attracting the nomination for the award. This article seeks to find out whether the ban of the film Rafiki is moral or hypocritical?

Morality and the Law

One common definition of morality is principles concerning the distinction of what is right and wrong or bad and good. The: “goodness” or “badness” of behaviour boils down to its acceptability. In other words, morality is something amorphous that is only defined by a people. Law on the other hand is a derivative of political authority. The Law which is enforced by the State is but a command from a sovereign. There are therefore points of convergence and divergence between these two.  Plato, for example, explains the idea of true justice which is closer to morality, as distinguished from justice which is apparently merely dependant on human reason. Law therefore can be moral or even be immoral

There is however need to go back a bit. If morality is this amorphous construct that the society develop. Can a society be wrong on the “rightness” of behaviour? The answer is yes. Societies have been wrong. Slavery and slave trade were immoral yet tolerated. Societies that discriminate on women and persons with disabilities are immoral yet there are few people who recognized so. Is there a morality of one? There is a valid argument to be made on a morality of one based on one’s conscience. This is to say that the society may see behaviour as “bad and an individual see it as “good” and it is still fine

Kenya has a country has a number of normative factors. These include: religion, culture and even the law. In an African society culture plays a big role in determining morality. The irony is what Kenyans refers to as African culture are distinct depending on ethnic group. In addition to these, there are some “moral” African cultures that have been stated to be repugnant to justice and morality. This means that Mr. Mutua holy African culture and the way of life he claims to ascribe to-as he trashes other people- may not stand the test of morality. He need not hide behind African culture so that he can be intolerant to ideas. This is simply foolish and infringes on other people’s rights. As much morality is a subject in this case, it is as subjective as it comes

Role of Religion

Religion has a big role in Kenya’s moral choices. This is however very subjective. The Constitution of Kenya recognizes this and hence article 32. This gives citizens freedom and the right to worship belief and practice religion. It is however important to note that article 32 does not include imposing ones belief or morality to other people. As much as the church as a right to be enjoined in any suit in Kenya, where do they get the right to impose their morality to the public? The wisdom of article 8 of the Constitution of Kenya has the implication that religion is a choice and as a citizen one may decide not to be guided by religion  hence a secular society.

Kenyans have therefore always chosen when to be guided by religion and when not to. The church for instance was against the promulgation of the Constitution (2010) and 65% Of the Kenyan voter, majority Christians went against the church. A huge part of the church has always been against family planning and the use of contraceptives; this too they have relatively lost.  They have always been accused of being part of tribalism and partisan politics in Kenya. Is it therefore hypocritical to say that Kenyans are 80% Christians and they are influenced as so? Or is it a lie the church needs to tell so as to   remain relevant as they did in the 15th century.  Claiming that 80% of Kenyans are Christians and therefore they have a say on issues of family and the protection of it is a classic miss direction. The church in Kenya has very little to say about family. They advocate for monogamy (Hyde v Hyde (1866)) while the law has metamophosized to allow for polygamy, single parent families etc. What moral authority does the church therefore have to kill creativity in the name protection of the family with regards to the rafiki film? It may be wise to let people be.  Those who want to subscribe to the way of Christianity need to be allowed to, those who don’t. Let them be free.

The Law and Human Rights Perspective

As stated in the facts of the case, the point of contention is on family protection and values of the society in Kenya. The Kenya film board has banned the film Rafiki as it promotes lesbianism and homosexuality. This they contend is illegal and immoral. The Constitution of Kenya, article 45 deals with the rights to marry and family. Article 45 (2) of the law prohibits gay marriages. Marriage in Kenya is for persons of opposite sex with consents. Article 45(1) advocate for protection of the family. The Penal Code (cap 63) of the laws of Kenya speaks of unnatural acts Section 163 read together with 164 gives a maximum sentence of 14 years imprisonment for anyone convicted of unnatural acts. This is therefore only possible if one considers gayism unnatural but how does one enforce this?  The Sexual offences Act (Cap 64) does not s however recognize gay activities as asexual offences.

It is therefore clear that gayism is illegal in Kenya. Unlike South Africa, Kenya does not recognize such marriages. Sexual orientation is not in the laws. But what has this got to do with the Rafiki film? The film is a piece of art that perhaps shows the realities of the Kenyan society.  In other words, the fact that gayism is illegal and perhaps immoral in Kenya, does not mean that gay people are not in Kenya.. There may be more people within the scope of LGBT than the Kenyan church or righteous society would like to admit. How does banning films or music films that does not hurt anyone but portray what happens in te society help? The hypocrisy by the KFCB however becomes clear as the board bans Kenyan films yet the same themes are carried by the foreign films that Kenyans still watch. As much as the KFCB may feel that they are preserving culture, they are in fact acting unconstitutionally. The Constitution of Kenya 2010 through article 33 elaborates on the freedom of expression to include freedom of artistic creativity. Article 28 is also quite elaborate on the human dignity and perhaps, human dignity should be respected regardless of sexual orientation

A gifted writer, who decides to give you the soft side of a dictator, should never be condemned for that is the reality of society. There is nothing immoral or illegal about that. It may not be pleasing to everybody, but it is wrong to pretend and clothe intolerance in  the question of morality.

Conclusion

As much as it is clear that Kenya is not ready for the LGBT rights. This does not mean that Kenyans should neither pretend that these people exist in the society nor they don’t matter. Societies gradually change and it is the films and creative art that help to shape conversations. In all these, there is need to have an open mind and stop intolerance in the name of moraliy or religion.

By:

Ouma Kizito Ajuong

Advocate

Is the Finance Act 2018 an Abuse of the Social Contract?

Is the Finance Act 2018 an Abuse of the Social Contract?

While a lot of people may agree with me that Kenya may largely pass for a democracy, few understand democracy as a predicate of a social contract. Democracy is neither an end to itself nor a means to leadership as it is popularly thought of. It is however a way of executing a social contract between the rulers and the ruled. This subject is made relevant by the financial Act, 2018. This is a law which in effect passes down the tax burden to the people of Kenya while disregarding their protests, yet they have very little to do with the debt crisis in the country or the mismanagement of public funds that has caused this. Simply put, it is asking the Kenyan people to pay more, to fund for projects they don’t really need, run a Government that doesn’t care about them and pay debts that they do not know how they came about. This paper therefore delves into the social contact both as a legal and political theory; it analyzes its place in the legal system in Kenya, attempts to interprete the Finance Act 2018 and the debt crisis management with regards to the social contract and finally gives a way out.  

The social contract theory was primarily developed to avoid a state of nature which is famously described by Thomas Hobbes’ five adjectives as a life that is solitary, poor, nasty, brutish and short. It is a life of chaos, characterized by selfishness and might for right. In order for self-preservation and protection and to avoid pain and misery, man must submit to the social contract. This contact consists of two pacts, pactum unionis where people undertake to live together in peace and harmony so as to protect lives and property and pactum subjectionis, where people unite together to pledge to obey the authority and surrender whole or part of their freedom to the authority. The authority in turn guarantees protection of life, property and freedom to certain extent. He is the sovereign and must therefore act or use this authority for the best interest of all the citizens. Is the social contact theory applicable to Kenya?

Kenya is a State with a defined population, area, Government and is sovereign which means that by organization her people seem to have subjected themselves to this contract. The preamble of the Constitution of Kenya manifests elements of pactum unionis where Kenyans undertake to live together as one indivisible sovereign nation, committed to the nurthering, well-being and protection of individuals, the family and communities in the nation. The Constitution of Kenya 2010 further recognizes people’s power as article 1 highlights sovereignty of  the people, article 1 (3) brings in the elements of pactum subjectionis as this power is delegated to the executive, judiciary and parliament. Article 94 (2), gives parliament the role of representing the people. This means that it has to legislate and work for the interest of the people of Kenya. Article 38 which gives Kenyans the right to vote is the ultimate manifestation of the social contract theory in Kenya.

As much as there is no doubt that the people have power and that they cede the power, the question is whether the Government works for the best interest of the people?  Do Members of Parliament always work for the best interest of the people? Does the Executive and the judiciary work for the benefit of the citizens? Do they even realize that the power they exercise belong to the people? There have been fundamental concerns as to whether they can even relate to the problems of the people they lead.  

Kenya is set in a context where the leaders claim to want to fix roads they don’t use, they pretend to be concern of the healthcare system they hardly use, schools their children do not go to and now they want to fix an economy they ruined. While these are blatant abuses of the social contact, none is as strenuous as imposing tax increments to the people of Kenya through the Finance Act, 2018.

The law imposes tax increments in telecommunications services, petroleum products, betting winners, motor vehicle exercise duty, sugar confectioneries, and telephone and internet services. This is done with very minimal participation while ignoring the fact that the most affected people are the poor and economically marginalized. The whole essence of Government is to protect its vulnerable yet the Finance Act, 2018 seems to have the opposite effect. Is there a way out?

When parliament and the Executive in Kenya seem to have betrayed the people and therefore abused both the social contract and the Constitution 2010, there are two ways out of this. Firstly, is using the judicial arm of the Government which also derives power the sovereign will of the people. This may not work as they as they are also part of the system. Secondly is the way provided for by proponents of the social contract theory.

The right to disobey the authority. People need not suffer under an oppress regime, there is no duty to suffer and live from hand to mouth  because those in leadership decide to accumulate debts or  that they made corruption and the misuse of  public resources a way of life.

Disobedience is the true foundation of Liberty -Henry David Thoreau

By:

Ouma Kizito AjuongAdvocate  

Knowing Your Community Land Rights

Opinion Blog

Recognition, Protection and Registration of Community Land Rights

Community land is land which vests in and is held by communities identified on the basis of ethnicity, culture or similar community of interest under the tenure systems of either; (a) customary (b) freehold (c) leasehold (d) or such other tenure system recognized under a written law.

Every person has the right, either individually or in association with others, to acquire and own property of any description in any part of Kenya, in accordance with Article 40 of the Kenyan Constitution.

Customary land rights, including those of community land, have equal force and effect in law with freehold or leasehold rights acquired through allocation, registration or transfer for example, subject to Article 40 (3) of the Constitution and the Land Act, no interest in, or right over community land may be compulsorily acquired by the State except in accordance with the law, for a public purpose, and upon prompt payment of just compensation to the person or persons, in full or by negotiated settlement.

To register a community land, the Cabinet Secretary of Lands, in consultation with the respective county governments, develop and publish in the Gazette a comprehensive adjudication programme to ensure that the process of documenting, mapping and developing of the inventory of community land is transparent, cost effective and participatory with the members of the community.

The person responsible for the registration of community land is the Community Land Registrar.

The process of registering community land involves the Cabinet Secretary of Lands by a notice in the Gazette; appoint an adjudication officer in respect of every community registration unit to facilitate, in consultation with the respective county governments, the recording of community land claims, demarcation of community land and delineation of boundaries. Upon adjudication, the title relating to community land is issued to the registered community by the Community Land Registrar.

Community land maybe held as; communal land; family or clan land; reserve land; and any other category of land recognized under a written law.

Administration and management of community land

A registered community must have a community assembly which shall consist of all adult members of the community. The community assembly shall elect between seven and fifteen members of the community assembly to constitute the community Land Management Committee for the administration and management of the community land.

Any decision of a registered community to dispose of or otherwise alienate community land is binding if it is supported by at least two thirds of the community assembly, while all other decisions of the registered community shall be by a simple majority of the members present in a meeting.

Nature of community land title

Upon registration of a community land, the community is issued with a Certificate of Title which gives the community the absolute ownership of that land together with all rights and privileges attached to the land.

This certificate is considered by courts as factual evidence that the person named as proprietor of the land is the absolute and indefeasible owner

Conversion of community land

A registered community shall, before the conversion of registered community land into either public, private land or any other category of land, seek and obtain approval from two thirds of the community assembly for instance;

  • Community land may be converted to public land by compulsory acquisition; transfer; or surrender.
  • Community land may be converted to private land through transfer; or allocation by the registered community.
  • Public land may be converted to community land by allocation by the National Land Commission in accordance with the Land Act, 2012 (No. 6 of 2012).
  • Private land may be converted to community land by transfer; surrender; operation of the law in relation to illegally acquired community land; or operation of any other written law.

Special rights and entitlements in the community land

A registered community may upon application and with approval of the members of the community assembly, allocate part of its registered community land to a member or a group of members of the community for exclusive use and occupation for such period as the registered community shall determine.

These occupations may include (a) farming areas; (b) settlement areas; (c) community conservation areas; (d) access and rights of way; (e) cultural and religious sites; (f) urban development; or (g) any other purpose as may be determined by the community, county government or national government for the promotion of public interest.

However, an individual entitlement shall not be superior to community title in any way.

Environment and natural resources management

Natural resources found on community land shall be used and managed sustainably and productively; for the benefit of the whole community including future generations; with transparency and accountability; and on the basis of equitable sharing of accruing benefits among the community members.

Settlement of disputes relating to community land

For purposes of settling disputes and conflicts involving community land, registered communities are encouraged to use alternative methods of dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms and internal dispute resolution mechanisms set out in the respective community by-laws.

The methodologies used in dispute resolution over community land include,

  • Mediation
  • Arbitration
  • Judicial proceedings

 

By:

Jack Odiwa, Local Expert-AJS

AGCP-Kituo Cha Sheria

 

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