The Right to Vote Dissected: Discussing the Nexus between Casting the ballot and the Four Corners of Human Rights in Kenya Today

RIGHT TO VOTE BLOG

“Voting is the most precious right of every citizen, and we have a moral obligation to ensure the integrity of the voting process.”- Hilary Clinton   

Public participation in political process is viewed by many scholars and democrats as a virtue in its own right. While many aspects of this are still amorphous, it is safe to say that the whole process is usually initiated by casting the ballot which is fundamental dimension to democracy. The exercise of citizens coming together to choose a leader through a legitimate process has over the years crystallized into a divine right- right to vote- even in States where the idea is not constitutionalized.

In Kenya, the promulgation of the Constitution of Kenya 2010 reinvigorated the resolve of the people of Kenya to establish a human rights–based society, starting with robust regime of political rights. Article 38 of the Constitution of Kenya 2010 inter alia gives people of Kenya the right to vote in an election or a referendum. Article 1 of the supreme law also gives sovereign power to the people of Kenya, often exercised through casting the ballot. Article 2(5) and 2(6) of the Constitution of Kenya 2010 also opens the door to international law which gives the right to vote to citizens of a sovereign State. This paper is dedicated to the right to vote and how it is connected to civic, social cultural and economic rights in Kenya today.

What does the right to vote mean?

It is perhaps true that the action of picking a piece of paper and  choosing a name from the list may not be a complex affair, however, it is equally true  that the consequential analysis of this exercise makes it an important process that  has taken many scholars time to  reflect and come up with the meaning of this  right. There  are two schools of  thought with regards to this, the first one, looks at the right to vote as an individual right which brings in the ideals of equality  to solve electoral disputes or “election wars” .

Proponents of this focus on the technical aspect of voting, they insist that it is more about individual’s ability to control election disputes and less on equality and ripple effect of the choice. In other words, for them voting is limited to the issues on the table. The second group however, thinks of the right to vote in a broader sense, as a foundational right that opens the door to the other ideals of democracy. Borrowing from the words of the late Prof. Okoth-Ogendo [on Constitutionalism] it is all about values and ideals.

The Kenyan political scene seems blind to the second school of thought, however with  the less than 70 days remaining to the general elections and the campaign period officially commencing, it is perhaps time to look at these ideas-some of which may not find a place on the “election wars” table.

Firstly, it is quite evident that the idea of civic and political rights has gradually grown into the people’s hearts in Kenya.

Today, unlike in the past, there is freedom of speech and expression, people are free to critique and ask more of their government. There is freedom to form and participate in political party and the idea of affirmative action to deal with the marginalized and special interest groups. This growth however, does not mean there are no challenges.

The loudly – silent question of a free and fair electoral process still lingers in the shadows. As much as the Constitution of Kenya 2010 provides for free, fair, accurate and verifiable elections, even the courts have not been able to quantify these standards leaving the country in abeyance with regards to sanctity of the vote. In addition to this, the value of our political parties seems to  have dropped a great deal, evidenced by the large number of independent candidates registered for the upcoming general elections, it is apparent that institutionalization of political parties is still a white elephant. Everybody agrees that provision for independent candidature opens up the democratic space, however when there are this many, it can only mean that there is very little faith in the systems within our political parties. The only way to know for sure will be to wait for people to vote and see how many independent candidates get elected. But generally these are signs that Kenyans need to think about their political organization.

Secondly, there are social cultural and economic rights. The judicial attitude has always leaned towards progressive realization of these rights and for sure the first five years of governance through the Constitution of Kenya 2010 has provided progressive realization in some areas. For instance, healthcare, education, growth of infrastructure, telecommunications and IT; however, it is quite shameful that Kenyans have to die because of drought in the 21st century. They have to pay taxes, work very hard and still fundraise for their fellow citizens who cannot get food in places like Baringo as the County and National government remain complacent.

It is funny that as Kenya builds standard gauge railways and roads, the prices of basic goods  have risen to an all-time high, the levels of corruption are simply unprecedented and our public debt need to be addressed. It is highly probable that most of these issues will be the subject of the coming elections but whether the electorate will use their votes to enter into contracts that deal with these issues is all about waiting to see.

In conclusion, the 2017 general election provides the people of Kenya with an opportunity to make choices, decide leadership that will bring their aspiration to fruition, build their Country and fortify the bill of rights all at the same time.

It is yet another chance to exercise the right to vote!

Wish all Kenyans a peaceful general election 2017.

By:-

Ouma Kizito Ajuong’

LLB (Hons) KUSOL, DIP KSL, Advocate of the High Court of Kenya.

A Win for the Freedom of Expression in Kenya: Criminal Libel is Unconstitutional

opinion-speech

The Kenyan High court has, in a recent decision, struck a blow for freedom of expression.

The case, Jacqueline Okuta & another v Attorney General & 2 others, sought to challenge the constitutionality of the offence of criminal defamation created under the provisions of Section 194 of the Penal Code. The petitioners in this case instituted a suit following their arraignment in court on charges of having allegedly published defamatory statements against the complainants on Facebook. The alleged publication stated that the complainants were wanted for illegal possession and handling of property.

The case turned on the question of whether criminal libel was a reasonable or justifiable restriction on freedom of expression. The petitioners contended that criminal libel was a “disproportionate instrument for protecting the reputations, rights and freedoms of others”, and inconsistent with Kenya’s human rights obligations under international law. Article 2 of the Constitution expressly incorporates treaties ratified by Kenya as well as the general rules of international law into Kenyan domestic law. Similar arguments were put forward by Article 19, an NGO which appeared as an interested party in the suit.

Protected under Article 19 of the ICCPR, the freedom of expression can only be subject to limitation(s) where that limitation meets the 3 part test laid down in Article 19(3) of the ICCPR, as interpreted in General Comment 34. This test requires that the limitation must be prescribed by law, pursue a legitimate purpose, and be necessary in a democratic society.

In the present case, the court concluded that the case revolved around whether the limitation imposed by the law had passed the tests of necessity and proportionality.

Necessary in a democratic society

Applying the test in Handyside v United Kingdom, which requires a probing into the existence of a pressing social need,the court questioned whether it was necessary to criminalize defamatory statements so as to prevent individuals from defaming each other. It noted the important role played by freedom of expression in disseminating information and public scrutiny, which often leads to unearthing of corrupt or fraudulent activities. Criminalising defamation would have a chilling effect on this valuable speech.

Referring to Article 24 of the Kenyan Constitution, which stipulates the criteria for  limitation of rights and fundamental freedoms, the Court stated that this provision’s purpose was to protect the public interest in general, as opposed to individual interests, yet a scrutiny of criminal defamation sought to protect individual interests. The interference with free expression which criminalising defamation would represent therefore failed to meet any ‘pressing social need’. This meant that Section 194 ran afoul of constitutional requirements. While such an interpretation may have, on the face of things, been plausible, one is left to ponder over the question whether this means that measures restricting rights can never be justified by reference to the protection of an individual interest. If this were the case, there would be a risk that minority rights would be jeopardized.

The question of proportionality

The second test used to scrutinise the constitutionality of criminal defamation  entailed  examining whether there existed an alternative remedy that satisfactorily and appropriately dealt with the mischief of defamation. Answering in the affirmative, the court stated that the right of action under the tort of defamation offered recourse to a complainant and was a less restrictive alternative.

The court further undertook an assessment of the consequences that would flow from criminal defamation and found that offenders would carry the opprobrium of criminalisation evenwhere the alleged defamation was not serious. The offence also had a chilling effect on the freedom of speech and information.

What also sticks out like a sore thumb in the court’s decision is the erroneous reference to Article 24 as a provision that allows for permissible derogations. This is because Article 24 only provides for limitation of rights and specifically prohibits limitation of a right that may ‘derogate from its core or essential content.’ The court failed to distinguish between limitation of rights under Article 24,and derogation from rights, which is provided for under Article 58(6) of the Kenyan Constitution. An important difference exists between limitation and derogation.

The Court also expressed displeasure that certain provisions within the Kenyan law hadn’t yet been amended so as to conform with the letter and spirit of the Constitution, despite it having been 7 years since the inception of the new constitutional order.

This progressive decision brings Kenya in line with regional human rights courts such as the African Court on Human and Peoples Rights, which in Konate vs Burkina Faso, discouraged the use of criminal defamation laws, stating that they  should only be reserved for instances of hate speech and incitement.

 Attalo Alvin.
LLB, Moi University School of Law.

The Kenyan Woman’s Place in Succession

law opinion

Introduction

The law of succession also referred to as the law of inheritance basically deals with the transmission of property rights from the dead to the living. This area of law deals with transmission from the dead to the living and consequently inheritance is common in all human societies and is therefore a concept of universal application.

The 5th edition of the Black’s Law Dictionary defines succession or inheritance as ‘’the devolution of title to property under the law of descent and distribution.’’ This definition therefore excludes those who take by deed, grant or any other form of purchase contract.

Arguably, this is driven by the desire to acquire property and as such, it is one of the ways of acquiring property due to the fact that when someone dies, the right to own and enjoy property rights die with them as well thus the rights over the property have to be acquired by someone else.

With consideration to the foregoing, the aspect of control has to also be factored in and considered. In most cases, people exercise this control in ways that are legal in the eyes of the law. However, philosophical decisions behind succession are the right of the owner to control that property even after death. Such people can do so through a will.

The main purpose of succession laws therefore is to provide the mechanisms through which property will be transmitted from the deceased to those who survive him/her and this automatically involves the following:

  1. Identifying the legal claimants who claim the property.
  2. Identifying the procedures of which such rightful claimants or dependents succeed to the property of the deceased.
  3. Identifying the mechanisms for dispute resolution as provided so as to resolve any conflicts between persons who claim to be rightful owners.

However, patriarchal ideologies give shape to family life and defines it in terms of a bread winning husband and a domesticated wife or rather a housewife which in many cases is domesticated by the males despite the fact that some of these women may be making substantial contributions to the household income. Consequently men are attributed with greater economic power when it comes to determining how the family income and resources should be allocated.

Various communities and societies have their own set of rules despite the fact that inheritance is a universal concept. In Kenya however, we have Cap 160 which is the law of succession act and which is of general application. There are other laws which apply such as Islamic laws and customary laws which are fortunately or unfortunately exempted by the Act but still apply informally in practice.

During the colonial period, various laws used to apply and various statutes applied to the various communities at that time such as to Europeans, Africans, Hindus and Muslims as well. The advent of independence saw an attempt at moving towards uniformity i.e. an attempt to consolidate and harmonize the various laws of succession into one statute catering for various peoples of Kenya. This culminated in the enactment of the law of succession act in 1972. This was done with the aim of bringing to an end differential treatment of people carried out during the colonial period. After independence, emphasis was on equality and the enactment of the law of succession act was an attempt at this equality.

The succession of the estate of a deceased may however take two forms. It may be by a will which is referred to as testate succession or can also be without a will which will thus result to intestate succession. Both forms are recognized by the law regulating matters of succession in Kenya. Intestate succession or rather intestacy occurs when a person dies without having made a will or the persons attempt to die testate fail upon the invalidation of his will by a court of law or the person revokes his will and subsequently dies without having made another will.[1]

Intestacy may therefore be total or partial. It is said to be total where the intestate has left no valid will. It is partial where a person fails to include all his property in his otherwise valid will or part of the will is revoked or a person acquires property subsequent to the making of the will that is not ambulatory. The property not covered by the will is governed by the intestacy provisions or is subject to intestate succession.

The rules of intestacy however apply to property that is capable of being disposed off by a will and do not apply to joint property which passes by survivorship or to nominations, life policies written in trust, or the subject of a dornatio mortis causa and therefore Cap 160 makes provisions for both monogamous and polygamous situations. The nature of devolution of property therefore depends on whether the deceased was polygamous or monogamous.

The succession of the estate of a deceased could also be testate in that he dies leaving a valid will to direct how his estate should be devolved after his death. Despite the fact that this could be the case, women are still marginalized and affected by cultural practices and customary laws in great proportions.

This could occur where the deceased dies testate but in his will and due to cultural demands, excludes the girl child from his otherwise valid will. This has the effect that such a girl will not have a place in succession and it’s because the society’s background allows so. This shows that even though the deceased might die testate, women still face the risk of being disinherited and might as well have no place when it comes to succession.

Customary laws in most communities are never fair and do not safeguard the rights of women whether the spouse, spouses or even the girl child. This therefore means that when referring to women in this context, the girl child is also included because in one way or another, she will end up being affected by the same issues already affecting and similar to those affecting their mothers.

What does the Law of Succession Act say?

The Law of Succession Act provides that ’’except as otherwise provided in this act or any other written law, the provisions of this act shall constitute the law of Kenya in respect of and shall have universal application to, all cases of intestate or testamentary succession to the estate of deceased persons dying after the commencement of this act and to the administration of estates of those persons.’’[2]

The Law of Succession Act makes various provisions to regulate inheritance matters for the various types of marriages. The Act makes provisions for both Monogamous and polygamous types of marriages. The nature of devolution of property in intestate succession depends on whether the deceased was polygamous or monogamous. However, the rules of intestacy do not apply to the provisions of Section 32 of the Act.[3]

Most Kenyans undergo Christian marriages which of course are done under the African Christian Marriage and Divorce Act while many others choose to have Civil marriages conducted under the Marriage Act. The marriages conducted under the two Acts are monogamous in nature and therefore subsequent women and children who will have been begotten outside such a marriage would be concubines and therefore illegitimate respectively and according to the provisions of the Act.[4]

Legislative intervention has however addressed the problem. An amendment to the Law of Succession Act now regards the subsequent women as a wife and the subsequent children as legitimate.[5] This is to ensure that all are catered for and for the sole purpose of succeeding the man in the event that he dies. The amendment can be attributed to the perception of the Traditional African society on the family unit.

Monogamous Marriages

The law of succession act provides that subject to the provisions of Section 40, where an intestate has left one surviving spouse and a child or children, the surviving spouse shall be entitled to the personal and household effects of the deceased absolutely and a life interest in the whole residue of the net intestate estate provided that, if the surviving spouse is a widow, that interest shall determine upon he re-marriage to any person.[6]

On the other hand, the Matrimonial Property Act provides that, a married woman has the same rights as a married man. These rights include to acquire, hold, administer, control, use and dispose of property whether movable or immovable, to enter into a contract and sue in her name.[7] This is a provision whose main purpose is to ensure that men and women are equal or rather have an equal status in a marriage union.

The Law of Succession Act provides that a spouse who makes a contribution towards the improvement of a non matrimonial property acquires a beneficial interest in the property equal to the contribution made by that spouse.[8] In this case, contribution means monetary and non-monetary contribution which includes domestic work and management of the matrimonial home, child care, companionship, management of family business or property and farm work as well as provided for by the act.[9]

The above assertions were reiterated in the case of Karanja v Karanja[10] where the court recognized the fact that a wife could help her husband acquire property through direct financial contribution. The contribution of a wife as a housewife or rather a housekeeper is no less important and her duties of taking care of her husband and children cannot be overlooked.

The dichotomy of continuum has also posed such a great challenge to succession matters. This has been between the western approaches and the traditional African approaches to issues concerning succession. The westernized jurisprudence puts matrimonial property within the limited confines of the family which is something that has been defined and interpreted by courts before.[11]

In the case of Rono v Rono[12] the sons claimed a greater share of their deceased father’s property that their sisters and their fathers widow. They advanced the argument that under Keiyo traditions, girls have no right to inheritance of their father’s estate and that even customary law supported their claim. However, the court found that where discrimination is at stake, the constitution and human rights standards must prevail.

In 2008, the above challenge was addressed again. In Re Estate of Lerionka Ntutu (deceased), it was argued that Maasai customary law did not recognize a daughter’s right to inherit property from her deceased father’s estate. The court and specifically Lady Justice Rawal made reference to and with reliance on the Rono v Rono decision overruled the application of Maasai customary law and therefore ruled that the daughters of a Maasai who had died without leaving a will were entitled to inherit his property not forgetting to emphasize the need to respect the requirements of CEDAW and International law together with women’s inheritance rights.[13]

In the above case, the question was whether the court was to apply the Law of Succession Act or apply the customary law of the Maasai community. The issue was clarified when Justice Rawal among other things held that any tenet of customary law which would abrogate the right of daughters to inheritance would be repugnant to justice and morality and could not be applied. This was a win for women because it meant that the daughter’s right to inheritance was recognized by the law.

 Polygamous Marriages

The Law of Succession Act provides that where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.[14]

The Marriage Act provides that Islamic and customary marriages are presumed to be polygamous or that they are potentially polygamous.[15] This has the effect that such marriages are considered to be polygamous before the law. The Act further provides that a person in a polygamous marriage shall not contract another, monogamous marriage.[16] Consequently, when one of the above marriages has been contracted, one lacks the capacity to contract a monogamous marriage.

Previously, women who were caught up in a polygamous labyrinth did not get anything in terms of inheritance of their deceased husbands which was very unfortunate. In Re Ruenji’s Estate, the marriage was under the African Christian Marriage and Divorce Act and Sachdeva J. held that women married under customary law by a man who had already or rather previously married under statutory law were not wives and their children were not children for the purposes of succession of the estate and were therefore not entitled to share in the estate of the deceased.[17]

In Re Ogola’s Estate, the same kind of holding was made. Simpson J. held that, a man married under statute is statute barred from contracting other marriages during the pendency of the statutory marriage and that any marriage so contracted are null and void, and the women so married are not entitled together with their children to inherit on the intestacy of the deceased man. This decision again bluntly women who were second wives to men who were already married under statute.[18]

In the matter of the Estate of Samuel Hopewell Gacharamu, the deceased had married his first wife under Gikuyu customary law. When he married a second wife, he married under the Kamba customary law although he again proceeded to marry the second wife under the Marriage Act. The issue that arose was as to who was the widow of the deceased and so entitled to inherit and it was also contentious as to what share should go to the two wives and children if both of them were declared widows.

The court held that the two were married under Gikuyu and Kamba customary law respectively and that the fact that the second wife was married under the Marriage Act merely facilitated the registration of that marriage but didn’t change the character of the marriage or even affect its validity. The two women together with their children were therefore entitled to a share of the deceased’s estate.

The decision in the Estate of Samuel Hopewell Gacharamu was reiterated in the decision in the Estate of Duncan Kiiru Karuku when the court stated that for the purpose of intestate succession, despite the fact that the first marriage was conducted under statute, the other wives and their children were the wives and children of the deceased and were therefore entitled to inherit.[19] Reference should however be made to Section 29 of Cap 160. The Act further provides for the mode of distribution.[20] In the above case, if not for the intervention of the court, the other wives would have been disinherited unfairly. This seems to be a direct interpretation of Section 3 (5) of the Law of Succession Act.[21]

In the Estate of Benson Ndirangu Mathenge, the deceased was survived by his two widows and their children as well. The first widow had four children while the second widow had six children. Ondeyo J. stated that the first house comprised of five units while the second house was comprised of seven units. The court stated that the two houses combined comprised of twelve units if looked at in terms of units. The 40 acre piece of land available for distribution was divided into twelve units out of which five were given to the first widow and her four children and the remaining seven to the second widow and her six children.[22]

What of married daughters?

Married daughters are still entitled to inherit their late father’s estate. The Constitution of Kenya 2010 provides that subject to Article 65, every person has the right, either individually or I association with others, to acquire and own property.[23] The constitution also provides that, the state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.[24]

In the case of Samson Kiogora Rukunga v Zipporah Gaiti Rukunga,[25] the dispute was as to whether a married daughter has a right to inheritance. This was in Meru High Court where the objector, Consolata Ntibuka went to court to challenge her brother’s decision to evict her from their deceased fathers land on the ground that she was married. The matter was brought before Lady Justice Mary Kasango. Lady Justice Mary Kasango stated that in her view, the law as it is now, it matters not whether a daughter is married or not when it comes to consideration of whether she is entitled to inherit her parents estate.

The Constitution of Kenya 2010 in Chapter Five on Land and Environment provides that one of the principles of land policy is the elimination of gender discrimination in law, customs and practices related to land and property in land.[26] The Constitution further provides that women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.[27] The above provisions of the Constitution of Kenya 2010 are tailored to ensure equality between men and women irrespective of the gender dominance.

The position that even married daughters are entitled to inherit their deceased father’s estates has again been reaffirmed in Re Estate of Pricilla Wairimu Kamau[28] where the court and specifically Lady Justice Martha Koome reaffirmed the provisions of the Law of Succession Act that daughters have equal inheritance rights just like sons do and she therefore held that the law doesn’t at all distinguish the children of the deceased on the basis of their gender or marital status.  The above ruling is also a win for the women a step towards ensuring equality between men and women in succession.

What if I am a Muslim woman?  

The Law of Succession Act further provides that “subject to subsection (4), the provisions of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions, the devolution of the estate of any such person shall be governed by Muslim law.”[29] This therefore means that matters to do with devolution of property of the deceased will conform to the provisions of the Holy Quran which states how the estate of the deceased shall be distributed.

The law of inheritance is a vital aspect of the Islam religion. Unfortunately, it can be argued that there is no equality for members subscribing to that religion when it comes to succession. Take for example the provision of the holy Quran that says, ‘’Allah ordains concerning your children that, the male shall have a share equivalent to that of two females. If the children are females numbering two or more, their proportion is two thirds of the inheritance.’’ [30] This is a clear disproportionate share amongst sons and daughters. But what can the law do about it? Well, nothing. Muslims are not subject to the provisions of the Law of Succession Act, period.

Conclusion

The law is everywhere and literally affects everything. It permeates every aspect of life to the point where whenever you peel off the layer of reality, the web of law is just beneath it. One would then ask themselves, where is this law that is said to have far reaching effects when women are being frustrated by men and a society which bows down to customary laws that violate women’s rights? Does it hate women? Is the law a chauvinist? Reflecting from all the assertions made above, it is clear that the issues affecting women are closely related to each other if not intertwined with legal stagnation, attitudes towards women, ignorance of the law and gender insensitivity.

The government has a role to play through legislation in combating the ill and rot in the society levelled against women with regard to succession. Legislation should therefore ensure equality between men and women and create a support mechanism for women’s claims as this is the best approach and solution to the paralysis of desperate women trying to figure out which way to go. It is the best way to understand the contours and cracks of their desperation and suffering. Women should be empowered to demand their rights, they should not wait for things to happen to them, they should be able to make things happen.

BY:
Kayere Ephraim

LAED-Kituo Cha Sheria

[1] See Section 34 of the Law of Succession Act

[2] Section 2 (1) of the Law of Succession Act

[3] Section 32 of the Law of Succession Act provides that ‘’the provisions of this part shall not apply to Agricultural land and crops thereon; or livestock situated in such areas as the Minister may, by notice in the gazette, specify.’’

[4] See Section 2 (2) of the Law of Succession Act

[5] Section 3 (5) of the Law of Succession Act

[6] Section 35 (1) of the Law of Succession Act

[7] Section 4 of the Matrimonial Property Act

[8] See Section 9 of the Matrimonial Property Act

[9] Section 2 of the Matrimonial Property Act

[10] Karanja v Karanja [1976] KLR 356

[11] See the case of Hyde v Hyde [1861-73] ALLER 175

[12] Rono v Rono & another(2008) KLR G & F 803

[13] Re Estate of Lerionka Ntutu, [2008] eKLR

[14] See Section 40 (1) of the Law of Succession Act

[15] Section 6 (3) of the Marriage Act

[16] Section 9 (b) of the Marriage Act

[17] Re Ruenji’s Estate (1977) KLR 21

[18] Re Ogola’s Estate (1978) KLR 18

[19] Succession Cause No. 74 of 1987, Estate of Duncan Kiiru Karuku

[20] Section 40-42 of the Law of Succession Act

[21] Section 52 of the Law of Succession Act provides that, notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular Section 29 and 40 thereof, and her children accordingly children within the meaning of this Act.

[22] High Court Succession Cause No. 231 of 1998

[23] See Article 40 (1) of the Constitution of Kenya 2010

[24] Article 27 (4) of the Constitution of Kenya 2010

[25] See the case of Samson Kiogora Rukunga v Zipporah Gaiti Rukunga 2001 [eKLR] available at http://www.kenyalaw.org

[26] See Article 60 (f) of the Constitution of Kenya 2010

[27] Article 27 (3) of the Constitution of Kenya 2010

[28] See the case of Re Estate Pricilla Wairimu Kamau [2005] eKLR

[29] Section 2 (3) of the Law of Succession Act

[30] See Sura 4 Verse 11 of the Holy Quran

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

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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

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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