Kituo Cha Sheria Celebrates Anne Orindi – a Grassroots Justice Champion

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“Heroes are made by the paths they choose, not the powers they are graced with.” – Brodi Ashton, Everneath

Goal 16 of the sustainable development goals speaks to promoting peaceful and inclusive societies for sustainable development, providing access to justice for all and building effective, accountable and inclusive institutions at all levels. In promoting access to justice at the grassroots level, Kituo Cha Sheria works with trained community paralegals – men and women doing sterling pro-bono work within their communities.

These dedicated and remarkable people generously donate their time, expertise, and energy to help close the gap in access to justice by offering credible and accountable legal aid services to indigent persons within their society. Our community paralegals bring Article 48 of the Constitution of Kenya to life at the grassroots level; Anne Orindi of the Nyando Community Justice Centre (Kisumu County) was one such champion. She passed on earlier this month and shall be laid to rest on 3rd September, 2016.

Access to justice is a very important judicial element and it is through access to justice that remedies can be availed to the people. In rural Kenya; where a high number of people live below the poverty line there is a notion among the economically challenged that justice is unachievable for the poor. The work of these community justice champions and the incorporation of traditional and community based mechanisms of dispute resolution methods is an important step in bringing justice to the people. This is especially viable in the rural areas where traditional structures are still intact.

Whether through leading workshops, training communities, building networks or sharing knowledge with fellow justice sector players, community paralegals give hope and encouragement where hope is sometimes all but lost in pursuit of justice.

Community paralegals go the extra mile in doing their work, in some cases more than other permanent staff.

Community paralegals are highly dedicated people, highly motivated by the desire to make tangible contributions to their communities by reaching the vulnerable and marginalized. They continuously develop their capacities to participate actively and constructively in the promotion of access to justice. We celebrate our grassroots justice champions!

RCKM

Kituo Cha Sheria

We care for justice.

Can the sexual assault of children be Compartmentalized: An introspective analysis of the ruling in Martin Charo V. R No. 32 of 2015.

“In order to escape accountability for his crimes, the perpetrator does everything in his power to promote forgetting. If secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure no one listens.”
― Judith Lewis HermanTrauma and Recovery

Can a child give consent to have sex?

In Kenya the age of consent is 18 years. Accordingly, the Children’s Act defines a child as one below the age of 18 years. This means that in our jurisdiction we recognize a child as a person who has not attained the age of 18 years ergo cannot comprehend the full nature and consequences of sex.

Thus such a child cannot have capacity to consent to any form of sexual relations. However, the recent judgment held in appeal Martin Charo V R No. 32 OF 2015 there seems to be a departure from this train of thought as established by the law.

The court acquitted the appellant. At summary, the appellant defiled a 13 year old girl. He KNEW she was thirteen. She in no way misrepresented herself TO BE ABOVE THE AGE OF MAJORITY BEING 18.  This is proven by his actions. According to the judgment, the appellant lied to the child’s brother of her whereabouts when he went to his premises to look for her. The appellant went further to raise alarm, so as to forcefully eject the victim’s brothers from his premises.

Shockingly, the court puts emphasis on the fact that the child willfully took herself to the appellants house therefore she consented. However Kenyan courts have held repeatedly as precedent that it is immaterial whether the victim consented to the act or not. Over and  above, the Sexual Offences act section 20 expressly disallows consent of a minor as a defense in such a scenario.  Children are unable to  fully appreciate the nature of a sexual act, so naturally they are incapable of consent. This holds true the world over. The judgment however puts the victim at trial and not the appellant.

According to the initial ruling, the prosecution proved as they ought to, that the appellant intentionally and unlawfully caused penetration of his genital organ into the genital organ of the girl aged 13 years.  Consequently convicting the appellant and sentencing him to 20 years in prison. All this was by the book and the court applied the law to the letter. That much was not in dispute.

The child behaved like an adult

The court on the appeal went ahead to state in the judgment that;

“… It is clear to me that although PW1 was a young lady aged 14 years; she was behaving like a full grown up woman who was already engaging and enjoying sex with men. “

This statement alone shows the deteriorating state of affairs of our society. The question here should not be the pristine nature of the child; rather we should interrogate our implementation system when it comes to defilement as emphasized in the 160 girls ruling. What the court admitted and also implied in the ruling of Martin Charo Vs. R, is that there are pedophiles, casually and repeatedly engaging in sexual relations with minors with absolutely no dread of the law and that some of these pedophiles may actually be let scot free by virtue of the supposed behavior of the child victim.

Further, the court went ahead to protect such repeat offenders from the law.  The Sexual Offences Act 2007 in the interest of justice and fairness provides misrepresentation as to age by the victim as a defense. If the child conducted herself as an adult who fully comprehends what she is doing neither her nor the appellant would have felt the need to hide her from her siblings. The Sexual Offences Act unambiguously rejects in toto consent as a defense in defilement matters. As a society we should not condone the willingness of any adult person, who has capacity, to engage in any sexual relations with a child regardless of the disposition and willingness of the child who knows no better.

The child is to blame? Shaming the child.

However, at this juncture it is important to ask the question of what is willing behavior in a child’s conduct in such a scenario? What is the measure used to dispose of one behavior as non –willing and another as such? The court has inadvertently opened Pandora’s box because one can never be completely sure of another’s intentions let alone a child’s especially in a sexual environment. The litmus test of right or wrong when dealing with children in such a sexual circumstance is on the onus of the adult! Never the child!

More so, the Protection Against Domestic Violence Act 2015, which includes defilement in the definition of violence allows anyone, not just the victim to report the matter to the police. We should make sure that we have created for the victim an environment conducive to reporting and trying of defilement. However, don’t such rulings act as a determent in the first place? Why would a child report sexual assault by an adult knowing full well that she/he may be victim shamed and no justice applied to the perpetrator of the offence?

We should consistently train our public officers and sensitize them on how to handle CHILD victims. Children should be treated as such. The test of who is a child is not and has never been their behavior but rather the age of majority.

Lastly, we should endeavor to set up more rehabilitation centers and other government institutions specifically geared towards child sexual assault victims that adequately address the physical, psychological and emotional treatment of the survivor to ensure that no general health repercussions extend into their adult life. We should ensure that as a society and a state we are nurturing healthy and wholesome citizens more so children as envisioned in our national values and national goals as contained in Vision 2030 and National Health Sector Strategic Plan II. Retrogressive thinking will only get us so far.

By

Wangari Karige and Samantha Oswago

LAED-Kituo Cha Sheria

ECOSOC Awards 2015

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During the 3rd Economic Social and Cultural Rights Lawyer of the Year Awards-2015, Mary Kanini Kitoo – a Legal Officer at Kituo Cha Sheria’s Mombasa Regional Office scooped the 2nd runners up award! She received the certificate and trophy at a colourful event on 7th December, 2015 held at the Intercontinental Hotel, Nairobi.

Mary Kitoo is celebrated and her sacrifice recognized as an outstanding Pro Bono Lawyer who has excelled in litigating on Economic, Social and Cultural Rights.

The award is also a recognition for contribution made towards enhancing the jurisprudence, litigation and legal education on economic and social rights.

Mary Kitoo carries on this baton from Mr John Chigiti, Mr Anthony Mulekyo, Mr Elisha Ongoya and Ms. Carol Mburugu – who swept the awards in 2013.

The Constitution of Kenya, under Article 43, expressly recognizes Economic Social and Cultural Rights. This Article promotes the equality of all rights. In the same breath, the Universal Declaration of Human Rights (UDHR); and the 1993 Vienna Declaration and Programme of Action state that all human rights are universal, indivisible, interdependent and interrelated.

The African Charter on Human and People’s Rights further states in its preamble that “[…] civil and political rights cannot be dissociated from economic, social and cultural Rights in their conception as well as the universality and that satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights”

Kituo Cha Sheria joins other stakeholders to advocate for the awareness, and enhancement of capacities to litigate and adjudicate on economic social and cultural rights.

In the same breath with which civil and political rights are guaranteed, so are the economic social and cultural rights.

Kituo Cha Sheria-Legal Advice Centre.

WOMEN IN THE MINING INDUSTRY

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Building national, regional and international women’s alliances to resist violence against women in the mining industry.

In the last two centuries, the mining sector has grown by heaps and bounds with multinational and national companies scrambling for the rich natural resources embedded in the African continent. The extractives industry has come with a huge price to African women who are exploited within the sector. The imbalance in power relations between African women and mining companies has meant that women within the industry are unable to negotiate installation of mining projects and or better working conditions. The structure within the extractives industry is patriarchal, gendered and viewed as a male space; women who venture into that space are sexually violated, intimidated and ostracized. On the other hand, the negative impact of the industry on environment and health of workers means that women as caregivers and nurturers bear the brunt and burden of these consequences.

Exemplifying violence against women within the mining sector

Drawing from the findings of participatory action research conducted by WoMin partners in Eastern, Western and Southern Africa, women artisanal miners experience unimaginable suffering and violence. WoMin is a women’s only regional alliance that advocates against destructive resource extraction. The Ugandan research revealed that women mining salt at the Katwe Salt Lake acquire skin conditions and sometimes have their uteruses removed due to the concentrated chemicals they are exposed to at the mining site. In the same vein, the Kenyan research found that women small scale miners in Kasighau location are derogatorily labelled zururas (Swahili for “wanderers”) as they challenge gender perceptions of motherhood and marriage by leaving their husbands and children for molnths in search of mining sites. Since these zururas neither own nor control land, they are at the mercy of mainly male landowners to access land for small scale mining. Such access to land may be given in exchange for sexual favours and or gemstones. To further illustrate the patriarchal system within the extractives industry, the South African research unveiled the difficulties that women face in acquiring employment within mining companies. The mining companies dismiss women as being inexperienced in the field and incapable of operating machinery. Finally, in Burkina Faso, it was revealed that artisanal women miners in the gold industry are exploited by their male counterparts who leave them with leftovers after they have dug pits in a bid to extract gold ore.

These case studies, which traverse Africa, attest to the power dynamics existing within the mining industry which operate at the expense of women. Multinational companies originating from powerful, capitalist and white Western countries exert invisible power over African states who in a bid to improve their local economies enter into oppressive mining agreements in which maximum profits are guaranteed to the corporates. Similarly, there exist power relations between the African states and the local communities whereby royalties from mining fail to contribute towards the development of the locals but rather benefit powerful political elites within governments. The concept of power is also seen within the local communities whereby the black African woman seems powerless as her labour within the extractive industry is exploited, invisible, undervalued and unpaid. The men within these local communities take the fair share of the benefits in the mining industry. Women are left to bear the negative impact of the mining sector through loss of alternative livelihoods such as agriculture due to environmental degradation, caring of ailing husbands, brothers and sons who worked in the mines and rearing of children whilst their husbands venture into underground mines.

Redressing the situation and concluding remarks

The powerful players within the mining sector cannot hand over power without a struggle. There is hence an urgent need for the eco-feminists to aggressively organise women’s grassroots, national, regional and international movements to resist further exploitation and violence against women within the mining industry. By building these alliances, women can generate power within and with other women producing an alternative power that can resist the patriarchal and capitalist system entrenched in the mining industry. Such women’s alliances can claim spaces that were either previously denied to women by giving women power to reject mining installations within their communities. Vibrant alliances will transform the mining sector into women’s spaces through which resources within Mother Nature can be sustainably utilised.

By:

Annette Mbogoh,

Coordinator-Mombasa Office.

Kituo Cha Sheria.

Kenyan Worker and the Law.

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Labour rights are one of the core thematic areas that Kituo Cha Sheria operates in pursuit of our vision of a just and equitable society. This has been through legal advice and litigation as well as through policy advocacy and education. Kituo has received numerous complaints from workers regarding their terms and conditions of employment. It is Kituo’s experience that the ordinary Kenyan worker lacks basic knowledge about his or her rights as a worker. Similarly employers are equally unaware of their obligations to their workers.

In the year 2007 there was a review of the national labour laws which had been a concern to both the Kenyan public and the Government for a long time. This arose out of tremendous changes experienced in the local labour market such as; structural adjustments, liberalization of the economy and technological innovations. The reviews was aimed at ensuring the laws were responsive to contemporary economic and social changes as well as achieve a new set of reformed updated labour legislation through a coordinated consultative process.

The following six (6) core labour statutes were comprehensively reviewed and repealed in that process.

1) The Employment Act, Cap 226;

2) The Regulation of Wages and Conditions of Employment Act, Cap 229;

3) The Trade Unions Act, Cap 233;

4) The Trade Disputes Act, Cap 234;

5) The Factories and Other Places of Work Act, Cap 514; and

6) The Workmen’s Compensation Act, Cap 236.

After that review exercise, 5 new pieces of legislation were enacted.

These were:-

1) The Employment Act, 2007

2) The Labour Relations Act, 2007

3) The Occupational Safety and Health Act, 2007

4) The Work Injury Benefits Act, 2007

5) The Labour Institutions Act, 2007

Each Act incorporated the principles of the 1998 ILO Declaration on Fundamental Principles and Rights at Work; thus ensuring the basic human values that are vital to our social and economic development.

This month – July, 2015; the government published new regulations that raise the minimum pay for domestic workers in urban centres. These regulations in a legal notice granted domestic workers in Nairobi a 12% pay increase, effectively pushing their monthly salary to Ksh. 10,954 from Ksh. 9,781 last year.

The regulations set the minimum monthly salaries an employer can pay a domestic worker in every major town, compulsory weekly off days and overtime compensation. An employer who contravenes the new rules risks serving a jail term of three months or a fine of Ksh. 50,000 or both.

The Right to Work is catered for in Kenyan laws. Article 41 in the Constitution of Kenya 2010 on Labour relations and the establishment of the Industrial Court through the Industrial Court Act No. 20 of 2011 with the same status as the high Court, further enforces and guarantees labour rights providing a better environment for pursuing labour Cases.

Our publication dubbed #KenyanWorkerAndTheLaw is designed for workers, employers as well as anyone else who wants to know and understand the law in Kenya as it relates to labour and labour relations.

Click to Read More>>> http://kituochasheria.or.ke/wp-content/uploads/2015/01/Kenyan-Worker-and-the-Law-final2.pdf

Kituo cha Sheria Turns 42!

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On Thursday 9, 2015 Kituo cha Sheria turns 42! Our vision still remains a society of justice and equity for all. Our current strategic plan 2015-2019 is themed “Towards Legal Aid, Legal Empowerment and Social transformation”.

Kituo Cha Sheria was established in 1973 by a group of young lawyers who saw the need for the poor to access legal advice and justice. These lawyers volunteered their time in the evenings and weekends to provide legal advice, draft briefs and to direct helpless litigants to the respective courts or tribunals. Most of our clients are on one hand poor and vulnerable people living in the urban slums, and on the other hand, poor and marginalized communities from the semi-Arid and Arid lands where communal conflicts and access to justice is limited due to inadequate justice, infrastructure and lack of awareness. Housing, land and labour rights remain a major area of concern in accessing justice and legal advice.

Kituo has linked litigation and advocacy together, thereby empowering individuals and communities to demand their rights or seek legal redress. As a result, evictions have significantly reduced and land grabbing does not happen without a fight for justice. Our programs are now linked with advocacy and agitation for policy change.

Kituo has been feted for contribution to the development of jurisprudence on access to justice in Kenya with myriad successes including a positive judgment we secured for the right of prisoners to vote in the referendum in 2010 and the 2013 General Elections. We also secured orders in 2012 that the directive by Government to have all refugees confined in Dadaab was illegal and unconstitutional.

We also moved to court and got orders on the Muthurwa right to housing case which set precedence for respect of human rights during evictions.

KITUO has also defined leadership in the NGO sector through recognition as the Civil Society of the Year (CSOYA) award winner in 2010 and 2012, winner of Transparency Cup of ICJ, in 2012 and to the Law Society of Kenya Justice Cup Runners up in 2013.

KITUO won the Distinguished Service Award of the Law Society of Kenya as well as the UNDP AMKENI’s best performing CSO in Access to Justice, in 2014. Internationally, KITUO has won several awards and nominations. Key among them was the BBC Radio Documentary Award for the paralegal work in Shimo La Tewa Prison (2014), nomination for the Rockefeller Foundation award (2013), nomination for the Innovative Justice Award by the University of Tilburg (HAGUE) and a recent nomination for the Namati Justice Awards (2015). KITUO was also nominated for the Institutional Justice category Award by the East Africa Law Society in 2013.

Kituo’s story is however not fully told without a mention of events of the early 1990’s and the challenges Kituo and other civil society organizations operated under. March 15th 1995, was a turning point for Kituo Cha Sheria. At exactly 12:45pm, three men walked into Ushirika Cooperative House, Museum Hill; two of them carrying black suit cases and one man enquired from the guard on which floor Kituo Cha Sheria was located. He walks in and briskly walks out. Minutes later, a loud explosion is heard which explodes into fire burning most of Kituo offices as the attackers sped off using a white salon car.

A guard was shot on the leg as they struggled with the arsonists. About eight (8) people were trapped inside the building but they managed to escape. The condemnation of that was widespread with voices terming it as an attack to the thousands of poor Kenyans who needs free legal aid services.

The National Council of Churches of Kenya (NCCK) which is one of the oldest Faith Based organization and engaged in advocacy and social justice, provided the physical space for Kituo in our early days as well.  Our development partners with whom we share a vision of working towards a society of equity and justice for all and the people who have made Kituo what we are today over the last 42 years have a lot to be proud of.

We, therefore, invite all of you who care for justice to journey with us and share your noble ideas, support and resources towards the achievement of the call for legal aid, legal empowerment and social justice.

The next frontier in this journey Kituo has worked with and for the poor is technology and innovation to promote access to justice and particularly M-Sheria, a mobile phone based legal aid provision platform; to bridge the gap further in serving the poor and marginalized.

Viva Kituo!        

 

In celebration with our staff, partners and mostly the people we serve, Kituo Cha Sheria will carry out a free legal aid clinic on 7th July, 2015 at Kituo Gardens (Head Office) and a Birthday Lunch/Conference at the Laico Regency- Nairobi themed- “Using Technology to Promote Access to Justice” on 9th July, 2015.

Legal Opinion on the Law against Police Torture in Kenya

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Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

No express black letter law exists on torture in Kenya as a law passed by Parliament. Our leaders whisper in dark corners of the evils of the past yet legislation on the abuses is as much the same as when they were being perpetrated. Our redeemer can only be found in Article 25 of the Constitution. The following is an overview of the legislation against torture perpetrated by police.

Legal Analysis

The Constitution of Kenya guarantees the Bill Of Rights in Chapter Four for every individual. These freedoms are not granted by the state but are inalienable by virtue of being a human being.

Article 25(a) of the Constitution provides for the freedom from torture and cruel, inhuman or degrading treatment or punishment being unlimited and guaranteed by the constitution.

The Constitution of Kenya guarantees its citizens’ protection by creating National Security Organs in Chapter fourteen of the Constitution. Among these organs is the National Police Service created in pursuance to Article 243 of the Constitution.

Article 4 of the United Nations Convention against Torture states:-

  • Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
  • Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

The African Charter on Human and Peoples’ Rights provides in Article 5 that, every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

There are no penal provisions against a torture perpetrator in Kenya. The closest penal provision is causing grievous harm contrary to Section 34 of the Penal Code. The mental aspect of torture is yet to be investigated and coded in law in Kenya.

Despite these constitutional provisions, several government agencies frustrate the enjoyment of these rights. Top among them is the National Police Service established under Article 243 of the constitution.

The objects and functions of the National Police Service are to:-

  1. strive for the highest standards of professionalism and discipline among its members;
  2. prevent corruption and promote and practice transparency and accountability;
  3. comply with constitutional standards of human rights and fundamental freedoms;
  4. train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and
  5. foster and promote relationships with the broader society.

Despite this clear constitutional mandate the police have been in the forerun to exercise acts of torture.

Some of the documented reports include:-

Prison Commandant boss sued over torture of five inmates Maureen Odiwuor, Standard Digital News, Kisumu, 7 March 2014 www.standardmedia.co.ke/thecounties/article/2000106290/prison-commandant-boss-sued-over-torture-of-five-inmates [accessed 17 March 2014]

Kenya police accused of abuse, torture, rape of Somali refugees after terror attacks Tom Odula, The Associated Press AP, Nairobi, 29 May 2013 www.foxnews.com/world/2013/05/29/kenya-police-accused-abuse-torture-rape-somali-refugees-after-terror-attacks/ [accessed 21 March 2014]

The state of the world’s human rights Amnesty International AI, Annual Report 2013 www.amnesty.org/en/region/kenya/report-2013 [accessed 26 Jan 2014]

Human Rights Reports » 2005 Country Reports on Human Rights Practices U.S. Dept of State Bureau of Democracy, Human Rights, and Labor, March 8, 2006 www.state.gov/g/drl/rls/hrrpt/2005/61575.htm [accessed 16 February 2011]

Freedom House Country Report  Political Rights: 4   Civil Liberties: 3   Status: Partly Free 2009 Edition www.freedomhouse.org/report/freedom-world/2009/kenya [accessed 26 June 2012]

Kenyan Police Accused of Torture, Arbitrary Arrests in Eastleigh http://www.voanews.com/content/human-rights-watch-charges-kenya-with-torture-arbitrary-arrests-of-somalis/1670519.html reported by Mohammed Yusuf on May 29, 2013 9:44 AM.

Kenya Police fire tear gas at children protesting over playground  http://www.aljazeera.com/news/africa/2015/01/kenyan-police-tear-gas-protesting-children-201511913521303110.html accessed 9/3/2015 2 : 45 pm

These are among the many media reports showing gross violation by the police on the right against torture. Very little is often done in respect of disciplining the rogue police officers instigating torture especially when the police officers are responding to ongoing threats such as terror or demonstrations. It is as if at these points of chaos no order should exist except that which is dictated by the bearer of a gun. If such rationale is to be advanced then law on protection of civilians during war would be nonexistent.

The reverse is however true. The right against torture cannot be limited or bent to achieve any aim. There is no justification for it hence any act of the same should be taken with utmost diligence to ensure it never occurs again.

In fact the police spokesman Mr. Masoud Mwinyi has been quoted admitting there will always be complaints against police and the way they execute their work.  Mwinyi said some police officers may have overstepped regulations when dealing with security matters. “We also acknowledge once in a while we might have some incidents of some officers getting excited or going out of their mandate,” he said.

Such talk when brought out so casually raises doubt over the genuine concern in achieving discipline in the force. Officers don’t get excited. They break the law! They rape, maim and kill people. Torture cannot be justified. Justification signifies failure and failure creates anxiety. An anxious force eager to please its superiors will instigate all forms of human rights violation. It is the predicament we as a country face whenever we have an imminent threat.

Avenues for redress

The National Police Service Commission

The constitution foresaw such gross violations as has been promoted by the police force since independence and included the National Police Service Commission. The commission is charged with the responsibility of exercising disciplinary control in the service. So far the commission has vetted 196 police officers but there are no records over how many it has dismissed on disciplinary grounds.

The Independent Policing Oversight Authority

This institution is created by Act No. 35 of 2011. It provides provide for a civilian oversight of the work of the Police. The objectives of the Authority are to:-

  1. hold the Police accountable to the public in the performance of their functions;
  2. give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and
  3. ensure independent oversight of the handling of complaints by the Service.

The authority has neither prosecutorial power nor disciplinary power hence only investigative authority ridding it of any autonomy. It relies on the police to arrest fellow policemen accused of gross violations of human rights and other crimes while the police relies on the office of the Director of Public Prosecutions to commence proceedings against the accused. The circle of bureaucracy if not properly effected frustrates justice and ensures such crimes are not brought to book.

The Kenya National Human Rights and Equality Commission

This is a body established under Article 248(a) of the constitution. It promotes enjoyment of all fundamental human rights investigating on alleged breaches and reporting on the complaints to the necessary bodies.  Every person has the right to complain to the Commission, alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

Conclusion

The right against torture is yet to be fully realized in Kenya. Threats to this freedom are still being justified by the government including the passage of the new Security laws. For instance Section 49 of the Security Amendment Act 2014 provides for limitation of the number of refugees. Such limitation when effected results in automatic torture of any refugee found within the borders. Kenyan police tortured and abused more than 1,000 refugees, asylum seekers and Somali Kenyans in Nairobi in a “10-week rampage” beginning in late 2012 in Eastleigh. This action was taken from a police directive, juxtapose if such a law was to take effect.

All is not gloomy as a bill called The Persons Deprived of Liberty Bill, 2014 is in parliament awaiting debate. The bill will protect against any elements of mental torture by ensuring remandees and prisoners are guaranteed their freedom.

Recommendation

Parliament should pass a law on prohibition from torture to cure the gap created in realization of this right. The law as it is still leaves a lot of room for interpretation by the police and any other citizen on what amounts to torture. International obligation to adopt a statute for the achievement of this right under the United Nations Convention against Torture is yet to be achieved.

Reparation for victims should be provided for in a prohibition from torture bill. As noted from the prosecution of former Chicago Police Commander Jon Burge, police torture survivors continue to suffer from the psychological effects of the torture they endured without any compensation or assistance; most have no legal recourse for any redress.  They cannot sue for any financial compensation because the statute of limitations has expired on their claims of torture or trespass to person.  Their family members also continue to bear the wounds of decades lost away from their loved ones.

Summary of Oscar Pistorious Judgement of 12th Sept, 14

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Oscar Pistorius has been found guilty of culpable homicide – equivalent to manslaughter in British law – for killing Reeva Steenkamp. The ruling was based on the judge’s finding that he used excessive force and was negligent in firing through the door. Crucially, the judge believed Pistorius’s claim that he believed he was under attack from an intruder.

The culpable homicide charge carries a maximum sentence of 15 years but no minimum sentence.

Judge Thokosile Masipa granted Pistorius bail, despite the state barrister arguing that he posed a flight risk now that he knew it was likely he would face a custodial sentence and had sold his house.

Pistorius was found not guilty of two of three firearms charges he faced, one of firing a pistol through the sunroof of a moving car, which carried a maximum five-year sentence, and the other for the possession of ammunition, which carried a maximum 15 year sentence.

He was found guilty of one of the three firearms charges, recklessly firing a gun in public at Tasha’s Bistro in Cape Town. That charge could also carry up to five years.

The International Paralympic Committee issued a statement saying that Pistorius had “done a great deal for the Paralympic movement” and would be allowed to compete again.

South Africa’s National Prosecuting Authority said it was “disappointed” with the verdict: “We respect the court decision to convict the accused on culpable homicide, which is in fact a serious crime. We are, however, disappointed that we were not successful in securing a conviction on the original charge of premeditated murder.”

Pistorius’s friend Darren Fresco, who was involved in two of the firearms incidents, had his immunity from prosecution upheld.