Discerning the Concept of Political Representation of Persons with Disabilities (PWDs) in Kenya

law opinion

The Constitution of Kenya (2010) carried with it an aspect of novelty; this is because the document represented a radical shift from the past. The Constitution not only designed a people-friendly governance structure but also brought on board a very robust human rights chapter. This chapter deliberately characterized by social, political and economic rights for women, youths the marginalized- and of interest to this paper- persons living with disabilities (PWDs).

Close to over a decade now, the world has been reverberating about the idea of disability rights culminating in political representation as the ultimate solution. After all, political representation is about making citizens’ voices, opinions, and perspectives “present” in the public policy making processes.

This article however, is concerned with three things: first, defining the concept of political representation for PwDs. Second, analyzing political representation for persons with disabilities as provided for in the law and lastly, looking at how well this has worked in Kenya.

What is political representation? The Concept of political representation has been a subject of social and philosophical discourse for decades. The origins of this traced to the likes of John Locke and Jean Jacques Rossue, spreading their wings to the modern day scholars such as Hanna Pitkins, and Nadia Urbinati. Interestingly, none of these scholars claims to have a conclusive definition of political representation. They however, agree on the components springing from what is called the simplest definition thus, an activity of making citizens views, opinions, present in a public policy or law and advocating, symbolizing and acting on behalf of others in a political arena. What about persons with disabilities? Con-temporarily speaking, Uganda like Kenya is now in the process of amending their electoral process to reserve political seats for PWDs. This is to ensure that they have a voice and take part in building the country. This is a requirement of international law that has been adopted by many other countries but how best it works is the point of discourse.

How does political representation for PwDs Kenya look like? The Constitution of Kenya (2010) recognizes representation of persons with disabilities as an integral part of Kenya. The preamble states that as the people of Kenya, we are committed to nurturing and protecting the well-being of individuals, families and communities hence perhaps affirmative action to ensure representation in the political arena. The idea of representation is strengthened by the national values and principles of governance stating inter alia human dignity, equity and inclusiveness and protection of the marginalized. Further, the principles of electoral mention fair representation of persons with disabilities as a key component.

Away from the principles, the Constitution of Kenya (2010) provides for a formula that guarantees representation of PwDs. The law provides for reservation of seats through political parties nominations. This means, out of the twelve members nominated by parliamentary political, there ought to be a member representing PwDs. Article 98 of the Constitution of Kenya 2010 also provides for the nomination of a man and a woman to representing PwDs. There is also an elaborate formula with regards to representation in the county governments. Article 177 of the Constitution of Kenya 2010 provides for representation for the marginalized youth and PwDs in the county assembly

Having seen the law, the last part of this paper looks at the practicality of the issues. Kenya is just about to finish the first electoral cycle under the new supreme law, prompting a need to take stock. Can we therefore say that political representation for PwDs has been successful? Are there gains to be counted? Is it “true representation” or is it a fallacy? Time always attracts evolution and change and therefore, it is inevitable that in the last five years we have had gains in respect to the lives of PwDs. However, it falls shot of true representation in light of the aspiration of Article 54 of the Constitution of Kenya 2010.

The law requires access and facilitation in educational institution, reasonable access to all places, access of device material, 5% of appointive position to be for persons with disabilities among others. All these remain as aspirations and dreams with nothing to show for political representations. The lives of persons with disabilities are still in shambles with the advocacy work left for Non-Governmental Organizations despite having representation from all the legislative houses in the country. Political representation for PwDs is a fallacy-not true representation that requires change as we move to the next electoral cycle.

There are three things that can be done; first political parties need to create structures not only to promote disability awareness but to promote rights of PwDs. Second, the parties that nominate these members should hold them accountable, ensuring they deliver on their mandate and lastly, PwDs in Kenya need to take charge and demand real political representation.

By:-

Ouma Kizito Ajuong’

Lawyer and writer at Poetic Fountainhttps://poeticfountain.wordpress.com/

 

 

Discussing the Right to Education in Kenya

class-1

Playing Football without Goal Posts?

Discussing the Right to Education in Kenya

 What if FIFA were suddenly to take away goal posts from the game of football? What would it mean? Players engaged in a kick-about, without a target? What about the fans? Would they have anything to cheer for? Maybe the moves, but without goals most certainly the game will lose all its allure. I am sure you already see difficulty in working without a target or rather being in a system without eventuality.

This article seeks to talk to the right to education with the legal and social prisms in mind. Can we therefore say that the right to education in Kenya carries with it fruits or is it an empty right? With the year coming to a close, many will be excited because of one graduation or the other, moving from one class to another, one grade to another but to what eventuality? Can we equate this to progress? Can we measure this and say that the children have learnt and developed or is it just about passing examinations. What about those who graduate? Do they really have the required skill? I bet that even for the many that have skills, all they are given by the Universities is not the power to go and read as proclaimed but the power to gamble with their lives and wait for fate to place them somewhere. Answers to all these questions however, may lead you to one simple conclusion; we are playing football without goal post, but perhaps I am yet to convince you, so what does the right to education mean?

United Nations Children’s Fund (UNICEF) document A human Rights- based approach to education for all defines the right to education as one that is not only recognized by many treaties as an important right, but one that is pivotal to  development and social transformation in a society. In addition to these, the right to education also deals with individual personality growth and development. The nine (9) International instruments touching on education give it an amorphous look and an interactive sphere with other concepts of human rights, these include; best interest of a child, right to dignity, right to socialize, right to participate, equity, equality and social economic development.

The Constitution of Kenya (2010) read with the relevant Acts of parliament also support this narrative. In other words, the law contemplates a system that is not only progressive but one set out for social transformation, something we can’t really say about our glorious 8-4-4 education system. I tend to see this internationally proclaimed right as a toothless dog given that our policies and systems have largely remained archaic, ineffective and mostly corrupt. Pause for a minute and think about it; Kenya’s Education Cabinet Secretary-Fred Matiang’i has been a busy man this year. From changing the school calendar, issuing a number of threats and disciplinary actions while at the same time playing ostrich. It is an open secret that on matters of integrity and examination irregularities in this country, the door will always open and close with the examination bodies and if not cleaned up, the CS will be in for a rude shock comes January 2017. He may as well have been playing football without goal posts all along.

Away from this, I also feel that it is important to discuss the social implications of our education system. How much creativity and adaptability does it give a child? Why take chemistry as a compulsory subject and spend four years with it knowing full well that I intend to be a lawyer? And why append 16 years of study only to come out and feel wasted? A lot of football without goal posts is going on at the ministry of education and if we are not careful they will help in turning the children of this country into academic zombies.

The other aspect that we cannot ignore is the cost of education. Why have the right in statutes and books of law yet we know that as much as 60% of the population of Kenya cannot afford basic education. Today we have high schools where parents have to part with as much as 100,000 shilling, not to mention the commercialization aspect in our universities.

Clearly, we have to make things right. There is a need to re think the whole idea of education in Kenya. This includes the system, available options all the way down to practicality and alignment to the job requirements and the cost of education.  If we don’t do that we are bound to perish and render the right to education useless.

By:-

Ouma Kizito Ajuong’

Lawyer and writer at Poetic Fountainhttps://poeticfountain.wordpress.com/

 

Kituo Cha Sheria Launches the Meru G.K. Prison Justice Center

MERU1Kituo Cha Sheria welcomed the Meru Main GK Prison Justice Center to the family of legal empowerment centers on the 10th August, 2016. The Center was launched after a paralegal training on Criminal law and procedures was conducted from the 1st to 9th of August 2016 at the Prison facility.

August 10 is the International Prisoners Justice Day and this year the day was marked under the theme of Access to Justice toward decongestion of prisons. One of the goals of Kituo’s prison paralegal trainings is to decongest correctional facilities by empowering the prisoners and remandees on self-representation in court, how to adduce evidence if any, how to cross examine witnesses, how to write their submissions, how to make mitigation statements, how to make interim applications such as those for bond, bail and making applications for Community Service Order.

The following topics covered were; Basics of Paralegalism, Introduction to Human Rights, Bill of Rights (Chapter 4 of Constitution), Criminal Procedure Code Chapter 75 Laws of Kenya, Powers of Court, Provisions relating to all Criminal investigations, Mode of taking and recording Evidence in Trials, Procedures in Trials before a Subordinate Court and High Court, Sentences and Executions, Appeals, Self representation (Criminal Approach), Power of Mercy Act, The Prisons Act and Community Service Order.

The training was conducted by Kituo lawyers Maureen Thuo and Ashioya Biko together with Kituo Volunteer Advocates within Meru. The training on Community Service Order was an important session as the inmates were taken through the process of applying for a community service as it presents some inmates with the option of serving from outside hence decongesting the prison. The newly acquired knowledge on the Bail and Bond Guidelines was equally important in the process of decongestion. Giving inmates the tools to represent themselves in legal matters will increase access to justice and also empowers inmates to challenge situations of injustice and abuse of certain rights inside the prison.

Bringing prison constables on board was also important in creating awareness on inmate’s rights and their obligations to ensure the rights of the inmates are protected as well as offer oversight in ensuring that prison paralegals work with the officers and raise awareness about the activities of the paralegals in prison.

The eventful ceremony was witnessed by representatives from partner organizations and agencies including the Kenya Prisons Service, Kenya National Commission on Human Rights (KNCHR), CEFA, EU, Legal Resources Foundation (LRF), ICJ-Kenya, Haki Mashinani and Embassy of the Netherlands.

A total of 37 participants were trained, 30 of whom were inmates and 7 prison constables. The inmates comprised of those on long sentences, pre-trial detainees charged with capital offences as well as the condemned. Kituo urges the trained paralegals from Meru to work hard and use skills they have acquired to benefit themselves and fellow inmates.

Kituo Cha Sheria

We Care for Justice

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

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

It is a pattern often seen many a time before.

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

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

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

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

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

Are there plausible solutions?

  1. The carrot – Stick Approach.

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

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

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

  1. Strong governmental support.

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

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

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

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

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

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

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

  1. Structural reform.

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

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

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

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

Samantha Oswago

LAED-Kituo Cha Sheria

Mandatory anal examinations in Kenya; Outdated and Horrific

Opinion

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

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

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

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

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

The petitioners have filed an appeal against the judgment.

The Law and Homosexuality.

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

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

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

However;

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

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

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

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

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

Retrogressive ,homophobic practise

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

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

By

Samantha Oswago.

LAED-Kituo Cha Sheria

 

 

 

 

 

 

 

Kituo at the Mathare Legal Aid and Human Rights Advocacy (MLAHRA) Youth Forum

MLAHRA 1On June 30th 2016 Kituo joined the Mathare Legal Aid and Human Rights Advocacy (MLAHRA) and the youth of Mathare drawn from Mashimoni, Huruma and Area 3 from 9am to 12pm at the Undugu Vacational Training Center Polytechnic on Juja road for an awareness forum.

MLAHRA organizes monthly public forums geared towards promoting active citizenship with Gibson Maina, an activist and community organizer working in Mathare slum mobilizing around 40 youth leaders from all over Mathare slum who invited Kituo for the June edition. Kituo’s Advocacy, Governance and Community Partnerships coordinator Aimee Ongeso, Maureen Thuo and Ashioya Biko(Kituo Advocates) conducted the day-long training at the forum.mlahra22

Kituo used the forum to educate the participants about the history of Kituo and the work the organization does as well as update them on the status of the Legal Aid Act including aaccreditation of legal aid providers legal advice and assistance by paralegals and persons who may apply for legal aid. The participants also taken through Kituo’s M-Haki– a mobile legal aid platform through which the public can send in legal questions and get a response within 48 hours.The forum present an opportunity to share Kituo’s work with the youth including how we engage with communities together with a Q&A session for legal questions from the participants.

RCKM

Kituo Cha Sheria

SUCCESS STORY OF GRACE OMUYAKU

mwariri

Grace Omuyaku (Center) receives her cheque from Kituo Advocate John Mwariri as Kituo’s Boniface Muinde looks on.

The story of Grace Omuyaku adds up to the many success stories that Kituo boasts of having successfully assisted its clients get justice.

Kituo cha Sheria (KITUO) is an organization that has for long been in the forefront in pursuing justice for the indigent in society. Since Grace was introduced to Kituo, she has been on a journey with the assistance of Kituo for the last seven years. The persistence on this journey has finally seen a smile back on her long forlorn face; and long may it continue.

What’s the Story…

Grace worked for Telecom Kenya as a personal secretary for over 20 years until 2006 when she and other employees approaching 50 years of age were retrenched. In December the same year, she was paid a lump sum amount of Ksh. 800,000 by the company (Telkom).

After consultation, Grace sought to invest the money in a Nairobi based company called NOSKCID (Africa) Asset Management Limited. Here, she was supposed to be receiving Ksh. 20,000 per month as interest from her investment for six month then she renews the investment upon wish.

“That only worked for a period of the first six month, then the first four month of the renewed investment, though through struggle,” she recalls.

Her encounter with Kituo cha Sheria.

Thereafter, the company went silent, never to deposit any more money to her account or even notify her of anything. It was during this ordeal, in 2009 when a friend of hers (Teresa, former client at Kituo) referred her to Kituo cha Sheria for legal assistance.

She remembers Kituo receiving her warmly and the first step was writing to the company seeking to resolve the matter out of court. These efforts proved futile as the company ignored the letter and the matter proceeded to court.

Since Grace could not afford raising court and related fees, Kituo helped her document a pauper application which succeeded. After going through the long court process the court ruled that Grace be paid a decree of Ksh. 879,852. The company did not honor this ruling either, to their shock, Grace and Kituo found out that the company had transferred all its assets to an unknown location. This meant that even auctioneering the company’s property was not a possibility. In 2015, the high court ordered that the directors of the company be summoned and when they appeared their lawyers claimed that the company had wound up. Instead the directors proposed to be paying Grace Ksh.50, 000 per month, starting May the same year only to do it for only one month and stopped.

March 2016, Kituo filed an application to the magistrate for notice to show cause why the director cannot be committed to civil jail or pay the amount and in June 15th, 2016, the court issued a warrant of arrest for the directors risking commitment to civil jail.

This signaled to the defendant (director) that things were getting worse and so a day later, on 20th June, 2016 he gave out a cheque of Ksh. 100,000 through Kituo lawyer, John Mwariri- defender of the poor-handed over to Grace Omuyaku, in the presence of another Kituo Officer Boniface Muinde at Kituo cha Sheria gardens. The defendant has further proposed with permission of court to be paying in installments until the whole amount now standing at Ksh. 1.6M is cleared.

Now that gives Grace a ray of hope and a smile on her face. She says that she hopes all will be well and gives a big thank you to Kituo cha Sheria for walking with her this long journey to see to it that justice prevails and the rights of those habitually trodden are upheld.

RCKM

Kituo Cha Sheria

 

 

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

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

Section 12 of the Births and Deaths Registration Act Unconstitutional

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

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

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

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

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

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

The spirit of the Ruling

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

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

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

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

Does this ruling support fraud?

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

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

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

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

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

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

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

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

Rape and Defilement

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

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

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

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

By

Samantha Oswago and Wangari Karige

LAED-Kituo Cha Sheria

 

A Need to go beyond Legislation

Opinion

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

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

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

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

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

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

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

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

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

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

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

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

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

By

Ouma Kizito Ajuong’

Kituo cha Sheria.

 

 

‘Karibu Turkana Community Justice Centre’

Turk Pic“We must evaluate access to justice from the perspective of the poorest and most marginalized amongst us”

From the cradle of Mankind County of Turkana, Kituo Cha Sheria ended the year 2015 welcoming the Turkana Community Justice Centre to our family.

Led by the Executive Director Ms. Gertrude Angote, Kituo joined the Turkana community and their leaders on 18th December 2015 in Lokichar sub-county, Turkana County.

The noble endeavor that took place at the Kenya Assemblies of God Hall in Lokichar town   kicked off at around 10am with tunes from Ekisil Akide- ‘Peace from the South’, traditional dancers.

Opening of the Justice Centre was preceded by graduation of 27 Kituo trained community paralegals from across the vast Turkana county; Lodwar, Loima, Kapitur and Kainuk. The community paralegals underwent an intensive training on basics of paralegalism, Introduction to Law and the Bill of Rights, land laws and labour laws as well as alternative dispute resolution among other topics from 7th-17th of December, 2015. The training was conducted by Kituo officers Marcelino Thuku and Ashioya Biko joined by the Kamukunji Justice Centre Coordinator Ezekiel Njenga.

The community paralegals in Turkana (Lokichar) are expected to bring legal services closer to the community with support from local administrators and players in the justice sector to promote access to justice to the poor and marginalized.

Ricardo Lopetok, speaking on behalf of the graduates, gave a chronology of the journey travelled by the paralegals since 2013 leading up to their qualification and graduation on the December, 18.

He expressed the hope that the new paralegals will work closely with the local Catholic Church and the local administration to ensure the community members access justice.

He urged Kituo to continue walking with them on this journey of legal empowerement.

Fr. John Wabootsa of the Catholic Justice and Peace Commission (CJPC) in the Diocese of Lodwar also praised the partnership of Kituo, the community and the church in establishing the justice centre primarily to promote justice and challenge oppressive structures in society. He noted all this work was to benefit the marginalized people in society.

The Executive Director Ms. Angote thanked the community for their warm welcome to Lokichar on behalf of Kituo and lauded the community for welcoming Kituo within their community. She explained Kituo’s journey through time from the beginning 43 years ago and indeed emphasized the opening of a Justice Centre in Lokichar was the ultimate achievement of access to justice for the poor and marginalized people.

Kituo’s main goal she said is to empower communities hence the importance of community paralegals in helping the people demand their rights and safeguard them especially with devolution now in the Constitution of Kenya. Community rights and legal empowerment are at the center of such initiatives as the Turkana Community Justice Centre. Extractives industry and land have increasingly become important to the Turkana Community and there’s need to safeguard community rights as a result of these emerging developments.

Aimee Ongeso, the programme coordinator Advocacy, Governance and Community Partnerships at Kituo thanked the partnership and goodwill extended to Kituo Cha Sheria in establishing the Turkana Community Justice Centre by various partners in the community including the church, community leaders including elected leaders and government administrative officers as well as the Judiciary through the Lodwar Law Courts.

In attendance included the Executive Officer at the Lodwar Law Court joseph Elimlim representing the Principal Margistrate, Lodwar; Raphael Loperito, Member of County Assembly-Lokichar; Lawrence Lotomon, MCA and chair of the Justice and Legal Affairs Committee in the Turkana County Assembly; Lillyrose Akori, MCA; Kevin Akeru, Turkana County Assembly Clerk. Also present were Linus Kwemoi, Alexander Munyes from the Department of Children’s Services and the Assistant County Commissioner, Lokichar and the area chief together with sub-county administrators.

RCKM.

Kituo Cha Sheria.