Reparations NOW: Highlighting the Right to Truth

truth reparations 1

Reparations NOW: Highlighting the Right to Truth

On 24th March 2018, the world marked International Day for the Right to Truth concerning gross human rights violations and for the dignity of victims. Civil society organizations under the umbrella network of the Kenya Transitional Justice Network (KTJN), together with the UN Office of the High Commission for Human Rights, the Attorney General’s office and development partners convened together with victims and survivors of past human rights violations in Kenya post independence to date.

The day provided an opportunity for all stakeholders to promote national dialogue on the reparations agenda and draw the society to the truth behind human rights violations that have been committed over the years and what Kenyans need to do as a nation to promote, protect and fulfill human rights.

The right to the truth here in Kenya is primarily enshrined through Article 35 of the Constitution on access to information. Other critical articles include Article 47 on fair administrative action, Article 49 on the right of arrested persons and Article 50 on fair hearing. The Truth Justice and Reconciliation Report (TJRC) remains one of the most decisive efforts in achieving the right to truth. Through the TJRC Report, the right to the truth has been invoked in light of the thousands of cases of extra judicial executions, the hundreds of enforced disappearances, victims of torture who remain unrepaired in places like Mount Elgon in Western Kenya, victims of sexual violence from various epochs particularly at the hands of security forces.

The right to the truth implies knowing the full and complete truth as to events that transpired, their specific circumstances, the identities of those who participated (and directed), knowing the circumstances those violations took place and why? To understand this, one only has to look at the Truth Justice and Reconciliation Report (TJRC Report) Volume 2A pages 221 to 366, in a bid to uncover the truth.

Unfortunately, many of the victims and survivors of gross human rights violations do not know the truth behind the violations done to them. Over 1,000 women who were raped in the 2007/2008 post election violence period and subsequent general elections by state security officers are among the many survivors seeking justice and compensation against these sexual violations.

In 2017, KTJN through the leadership of the International Center for Transitional Justice (ICTJ) presented a policy proposal for reparations of historical injustices to the Office of the Attorney General. The policy proposal provides a theoretical framework and guidelines for operationalization of the Reparations for Historical Injustices Fund subsequently established by President Uhuru Kenyatta in his March, 2015 State of the Nation Address.

The purpose of the Reparations for Historical Injustice Fund is to be the institutional framework for implementation of a program that provides reparations to victims of human rights violations committed or condoned by the State between 12th December 1963 and 28th February 2008.  The funds will also help in restoring the dignity of victims through acknowledging the wrongdoing, the harm suffered and the state responsibility to promote, protect and fulfill human rights.

The main objective of the policy is to guide implementation of a comprehensive reparations program that provides adequate, effective, accessible and prompt reparation that is; to the greatest extent possible, proportional to the gravity of the violation and the harm suffered, while integrating existing structures and programs to ensure efficient, transparent and accountable delivery of services to victims and the broader Kenyan public.

Implement the reparations fund…

Survivors of past human rights violations are therefore, urging the government to fast track the adoption and implementation of the reparations fund. Implementation of the fund will assist in alleviating the pain and suffering the survivors have endured over the years.

Faith Ochieng’

Program Manager

AGCP- Kituo Cha Sheria.

 

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Devolution and Governance in Kenya

Opinion Blog

Devolution and Governance: Introduction to Devolution as a Governance Tool

The new constitution of Kenya 2010 entrenches devolution as a governance tool in Kenya. It states that, the sovereign power of the people is exercised at the national level and the county level.[1] By the above provision of the constitution, it is law that the counties shall have governments but under the national government.

Devolution may be defined as the process of transferring power to legal and elected local governments. In Kenya those are the county governments.[2] Devolution is therefore the actual transfer of administrative, political and also political power from the central government to the elected local governments which are constitutional and in tandem with the new constitution of Kenya 2010.[3]

Public participation, accountability and responsiveness of the county governments to the citizens at the local level has been realized to some level with the birth of devolution as it has also enhanced national unity by reducing corruption and economic stagnation.[4]

The effects of devolution on everything that pertains to national development cannot be ignored since from the time Kenya attained independence, the then government had the sole purpose of possessing all the power to those who formed the government and they ensured that this happened by coming up with countless amendments to the independence constitution. For example the 1964 amendment unified the head of state and the government. One can only imagine the kind of power such an amendment awarded to the head of state and other state officials dancing to the tune of the head of state.[5]

Decentralization of governance has for a long time been seen as a means to ensure that there is public participation and democracy and even accountability on the part of the government. This will see to it that even the marginalized communities that have not felt the closeness of the government feel like they have a voice, democratically and in all other aspects. That they will and are accommodated by the government and fully represented as Kenyans whose rights are covered under the constitution of Kenya 2010.[6]

The County Government Act was enacted to ensure that power is decentralized down to the people of Kenya who are sovereign by providing for example that any person has the power to petition the county assembly to consider any matter that is within its authority which includes enacting, amending and even repealing any of its legislation.[7] This provision by the County Government Act seeks to ensure that there is public participation in quite a number of areas with regard to governance at both the local and nation level.

The Act goes ahead to grant some powers to the people by providing that the electorate in a county ward have the power to recall a member, their member rather of the county assembly before the end of the term of the member on certain grounds. One of the grounds for example is that when a member is found to be in violation of the provisions of Chapter six of the constitution of Kenya 2010.[8]

The Act makes public participation mandatory and makes provision to ensure that the process is smooth under Part VIII and also provides that the process of planning shall be clear and not ambiguous. This ensures that the public within the territory of a local government are aware of the plans the county government has and participate in the whole process.[9]

This provision of the constitution of Kenya 2010 in Article 1 (4) gives authority to and also establishes county governments as a form of a governance tool in Kenya with an aim of bringing the government closer to the sovereign people of Kenya to realize transparency and quality leadership as well.

The constitution proceeds to provide that the territory of Kenya is divided into the counties specified in the First schedule.[10] The constitution also provides that the governments at the national and county levels are distinct and interdependent and shall conduct their mutual relations’ on the basis of consultations and cooperation.[11]

Devolution is a form of decentralization founded on the principle of subsidiarity.[12] It therefore refers to restructuring or re-organization of authority that there is a system of co-responsibility between institutions of governance at the central, regional and local levels according to the principle of subsidiarity.[13]

This clearly illustrates that devolution has become a governance tool in Kenya with the sole purpose or rather aim of decentralizing resources and contribute to the participation of the public in governance. Decentralization therefore involves the transfer of authority for specific decision-making, financial and management functions by administrative means to different levels under the same jurisdictional authority of the central government.

It is therefore the transfer of authorities to autonomous lower level units legally constituted as separate governance bodies. Transfer of functions, powers and authority to such units is often referred to as devolution and is the most common understanding of genuine decentralization.[14] The General elections of Kenya 2013 for the first time gave Kenyans the authority and power to elect chief executive officers and legislators for the newly formed county governments. These governments fall within Kenya’s devolved structure.

The cardinal rule of devolution is to decentralize administrative, financial and political power to the local level in order to enhance the efficiency and effectiveness of government. In effect, devolution is envisioned to provide opportunity for greater citizen participation in local developments and permits the government to respond quickly to local needs.[15]

Devolution is therefore a legal means through which power that was centralized in the old Kenyan regime of the old constitution is now legitimately brought down to the people through their locally elected government to ensure public participation, accountability, equitable development, responsive governance, representation and the wholesome development of the nation at large. This is the goal and aim of devolution of power otherwise known as decentralization.

Management of Public Finance

Public finance is a field of economics concerned with how a government raises money, how that money is spent and the effects of these activities on the economy and the society. It studies how governments at all levels, national, state and local, provide the public with desired services and how they secure the financial resources to pay for these services. Public finance deals with the finances of public bodies. The performance of these functions leads to expenditure.[16] Public finance is the study of the role of the government in the economy.[17] Public finance is the branch of economics which assesses the government revenue and government expenditure of the public authorities and the adjustment of one or the other to achieve desirable effects and avoid undesirable ones. The purview of public finance is therefore considered to be threefold; efficient allocation of resources, distribution of income and macroeconomic stability.[18]

Public finance management basically deals with all aspects of resource mobilization and expenditure management in government. Just as managing finances is a critical role of management in any organization, similarly public finance management is an essential part of the governance process. Public financial management therefore includes resource mobilization, prioritization of programmes, the budgetary process, efficient management or resources and exercising controls.[19]

In Kenya, we have the Public Financial Management Act under which the Parliamentary Budget Officer is required to respect the principle of public participation at all times. [20] The cabinet secretary in charge of finance and also the county executive committee member for finance are also required to respect public participation in the process of coming up with the budget.[21]

When it comes to matters of public finance, the law is clear on its provisions and requires even the accounting officer of an urban area or city to ensure that the members of the public are given an opportunity to participate in the preparation process of the annual budget estimates.[22]

The Constituency Development Act also lays down rules to be followed with regard to the management of public finance. The public can participate in this as they can nominate a person to serve in the Constituency Development Fund Committee and a member of the public can even participate by submitting proposals for community development projects to the committee.[23]

Different authors have different definitions for public finance. Bastable for instance states that whether crude or highly developed, some provisions of the kind are necessary and there for supply and application of state resources constitute the subject matter of a study which is best entitled in English as Public Finance.[24]

Dalton however defines public finance as one of those subjects which lie on the border line between economics and politics. He says that it is concerned with the income and expenditure of public authorities and with the adjustment of one to the other.[25] Dalton’s definition uses the word public authorities to refer to the government or state at all levels.

Harold Groves also defines public finance as a field of enquiry that treats the income and out goes of the government’s federal states and even locals.[26] Harold Groves’ definition on the other hand outlines the types of governments whose finances are studied in public finance.

P.E Taylor defines public finance as the fiscal science, its policies are fiscal policies and that its problems are fiscal problems. According to Taylor, public finance studies the manner in which the state through its organ, the government, raises and spends the resources required.[27] Public finance is thus concerned with the operation and policies of the state treasury.

Mrs. Ursula Hicks states that the main content of public finance consists of the examination and appraisal of the methods by which governing bodies provide for the collective satisfaction of wants and secure the necessary funds to carry out this purpose.[28] Mrs. Hicks therefore highlights the satisfaction of collective wants which in turn leads to the need to secure necessary resources.

C.S Shoup also writes that the discipline of public finance describes and analyses the government services, subsidies and welfare payments and methods by which the expenditure to these ends are covered through taxation, borrowing, foreign aid and creation of new money.[29] This definition enlarges the scope of public finance for modern governments to include different types of expenditure and different types of revenue.

From the definitions of public finance above, it is therefore safe to conclude that public finance is an inquiry into the facts, techniques, principles, theories, rules and policies which shape, direct, influence and govern the use of scarce resources with the alternative uses of the government.

The Collection of sufficient resources from the economy in an appropriate manner along with allocating and use of these resources efficiently and effectively constitute good financial management. Resource allocation, resource generation and expenditure management (resource utilization) are the essential components of a public financial management system.[30]

The constitution of Kenya 2010 ensures that public finances both at national level and county level (the county governments) shall be managed in accordance with the principles of public finance to ensure openness and accountability at all times by providing that there shall be openness and accountability, including public participation in financial matters.[31] This the constitution provides to ensure that the public is satisfied and informed on issues concerning public funds managed by both the national government and the county governments as well.

Due to the fact that some counties might produce more revenue than others, the constitution caters for that by ensuring equitable sharing as it provides that, revenue raised nationally shall be shared equitably among national and county governments[32] and that expenditure shall promote the equitable development of the country, including by making special provision for marginalized groups and areas.[33]

Without the above provisions of the constitution, various counties would develop at a higher rate and be advantaged to the detriment of the marginalized ones and as a result there would be unequal development in the country which is something the constitution tries to avoid.

Public finance is closely connected to issues of income distribution and social equity. Governments can reallocate income through transfer payments or by designing tax systems that treat high income and low income households differently.

Collection of sufficient resources from the economy along with allocating and use of these resources efficiently and effectively constitute good financial management. Resource generation, resource allocation and expenditure management (resource utilization) are the essential components of a public financial management system.

Applicability of Fiscal Decentralization under the 2010 Constitution

Fiscal decentralization involves shifting some responsibilities for expenditures and/or revenues to lower levels of government. One of the important factors in determining the type of fiscal decentralization is the extent to which the sub national entities are given autonomy to determine the allocation of their expenditures. (The other important factor is their ability to raise revenue.)[34]

The constitution of Kenya 2010 makes provision for fiscal decentralization.[35] The constitution provides that one of the objects of the devolution of government is to facilitate the decentralization of state organs, their functions and services, from the capital of Kenya and to enhance checks and balances and the separation of powers.[36]

This provision shows the intention of devolution which is to decentralize power from the central government down to the people at local level through the county governments and as such promote the principle of separation of powers.

The constitution also provides under the principles of devolved government that the county governments established under this constitution shall have reliable sources of revenue to enable them to govern and deliver services effectively.[37] This will see to it that the county governments perform the functions that were previously controlled by the national government like tax collection and thereby making it a reality the decentralizing such functions is of benefit and will make it more efficient in terms of service delivery.

It’s also a provision of the constitution that every county government shall decentralize its functions and the provisions of its services to the extent that is sufficient and practicable to do so.[38] This will give sub-national government’s autonomy which is the key factors with regard to decentralization of functions from the national government to the sub-national governments. According to the constitutions provision, the county governments shall decentralize their functions and the provisions of their services to a point that is suitable for the needs of each specific county.

The constitution further provides that a function or power of government at one level may be transferred to a government at the other level by agreement between the governments.[39] Some local governments may be in a position to perform some functions way better than the others.[40] The constitution makes provision for this and facilitates a situation where this kind of power or function can be transferred to the other level of government in an effort to ensure better service delivery to the people.

The constitution also provides for cooperation between national and county governments.[41] It provides that government at either level shall perform its functions and exercise its powers in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level.[42] This provision seeks to ensure the smooth operations between levels of government and even the national government and the county governments.

The constitution of Kenya 2010 in article 2 (1) provides that it is the supreme law of the republic and binds all persons and all state organs at both levels of government. This means that even the county governments which are the local governments are under the authority of the constitution. Fiscal decentralization as illustrated above is entrenched in the constitution of Kenya 2010 to see to it that the principles of fiscal decentralization are realized and respected.

The potential of Fiscal Decentralization for Responsive Governance, Equitable Development and Effective Service Delivery

The constitution of Kenya 2010 provides that all revenue raised both at the national and county level shall be shared equally.[43]The constitution also provides for openness and also accountability in financial matters.[44]This provision by the constitution will go a long way in ensuring that there is equality in terms of development in the country at large unlike the era of the old constitution where revenue was divided with the discretion of the president and thereby leaving some parts of the country with nothing.

Although fiscal decentralization has emerged as a focus of public sector reform in many less developed nations, the substantial body of theory and research on public finance in developing countries includes little substantive work on the fiscal role and performance of local government. Most analysis on this topic have been in the form of occasional case studies or chapters in study of national tax systems, usually conducted by special commissions or international development agencies.[45]

During the 1990s, fiscal decentralization and local government reform have become among the most widespread trends in development. Many of these wide-ranging and costly efforts, however, have made only modest progress towards meeting their stated goals. Given this uneven performance, there has been extensive debate about the desirability of fiscal decentralization and how to approach it.[46]

Decentralization has the potential to reduce accountability by breaking the links between the levels of taxation and expenditure. Major expenditure responsibilities are being transferred to the local or rather county governments in an effort to improve service delivery, but there are still few high revenue taxes which can be assigned to local governments without creating national economic distortions.[47]

The decentralization of the collection of revenue can serve to increase the costs of collection and compliance, both for the public sector and the private sector. There are usually fixed costs associated with collecting any tax and which have to be borne by the counties. Tax payers will also have to incur costs of compliance for all taxes levied and the possibilities for avoidance and evasion will increase with decentralization for some types of taxes.[48]

This will happen where the tax base is mobile or where also the tax base straddles more than one jurisdiction. In the latter case, there will need to be rules for allocating tax revenues among jurisdictions and therefore in their absence, a situation will arise where some tax bases may face either double taxation or not taxation at all. [49]

Prof. Musgrave argues that decentralization may improve governance in public service provision by improving the efficiency of resource allocation. He observes that sub-national governments are closer to the people than central governments and as a result have better knowledge about local preferences.

Local governments are therefore better placed to respond to the diverse needs of the local people. In addition, decentralization narrows down the social diversity and subsequently the variation in local preferences. As a result, countries are able to attain a higher level of efficiency in the allocation of public resources.[50]

It is however hard to achieve effective service delivery, responsive governance and equitable development when the national government is neglecting the county governments. The most important reason local governments have been neglected in developing countries like Kenya is that strong central governments often oppose decentralization. Some reasons for this reluctance are legitimate, such as the need for national building in ethically fragmented societies and central macroeconomic control in the fragile economies.[51]

In Kenya, the case is that there is no national building explanation advanced yet the national government is reluctant to release funds to the county governments and in such a situation there will be no equality in development, no effective service delivery and no responsive governance.

However, decentralization may stimulate equitable development and that local authorities have an important role to play in the management of development.[52] Some recent empirical evidence suggests that a negative effect of fiscal decentralization is on growth.[53]

The evidence on the improvement of service delivery due to fiscal decentralization is limited. Given the claims of service improvement are so central to the arguments of decentralization advocates that it is somewhat surprising that little research has been done to see if decentralization indeed increases the level of service delivered and their quality. Recent research has found that decentralization increased the total and subnational expenditures on public infrastructure.[54]

Decentralization also leads to effective service delivery. However, the extent to which decentralization improves accountability is mixed. There is certainly evidence that participation, in terms of elections and interactions between elections and local government officials, can be substantially increased by decentralization. This will in turn improve service delivery to an effective level.[55]

There is also some evidence that democratic decentralization can enhance the speed, quantity and quality of responsive actions from local governments.[56] The quality and distribution of participation however varies and it does not always result in improved accountability of the local government or the local residents. Several issues seem to matter here.

An enabling environment for fiscal decentralization can begin with constitutional or legal mandates for some minimum level of autonomy, rights and responsibilities for local governments. This provides a foundation on which to build decentralization, but it does not by any means guarantee successful fiscal decentralization.[57]

There are many countries with constitutional clauses and laws on local government that have not managed to decentralize successfully. A good example is Indonesia which became more fiscally centralized after a major decentralization law was passed in 1974.

Conclusion

Effective decentralization requires complementary adaptations in institutional arrangements for intergovernmental coordination, planning, budgeting, financial reporting and implementation. Such arrangements may encompass both specific rules and provision for regular intergovernmental meetings and periodic reviews of intergovernmental arrangements.

If the government has detailed central control over local use of funds, it is seldom appropriate. Instead, what is needed is transparency and accountability to local constituencies supported by strengthened higher level monitoring and reporting of local fiscal performance.

One can therefore conclude that decentralization guarantees neither local participation nor accountability of local governments to their constituents. Again, neither of these things comes about immediately or automatically as a result or decentralization. Some local benefits of decentralization can only be realized if the local governments are able to develop. Equitable development, responsive governance and effective service delivery should not be expected to occur rapidly. It typically requires a strategic, gradual implementation process of building trust between local government officials and their constituents.

BY:

Ephraim Kayere, Advocate

LAED-Kituo Cha Sheria

[1] See article 1 (4) of the constitution of Kenya 2010

[2] See ICJ Kenya, Handbook on Devolution

[3] See Peter Wanyande, ‘Devolution in Kenya, Challenges and the Future’ Series number 24

[4] See Cyprian Ouma Nyamwamu, From a Centralized System to a Devolved System: Past, Present and Future Dynamics, 2010

[5] See Kithure Kindiki, The Emerging Jurisprudence of Kenya’s Constitutional Law Review

[6] See Jan Erk (2006), Does Federalism Really Matter? Comparative Politics 39 (1)

[7] See Section 15 of the County Government Act

[8] See Section 27 of the County Government Act

[9] See Section 11 of the County Government Act

[10] See article 6 (1) of the constitution of Kenya 2010

[11] See article 6 (2) of the constitution of Kenya 2010

[12] See David .A. Bosnich: The principle of subsidiarity available at http//www.action.org/pub/religion-liberty/volume-6-number-4/principle-subsidiarity

[13] Onesimus Kipchumba Murkomen: Devolution and the Health System in Kenya

[14] Ibid

[15] See article by Transparency International Kenya, Understanding Devolved Governance

[16] See paper by Sri. Abdul Kareem, O.C, Public Finance

[17] See Gruber, Jonathan (2005): Public Finance and Public Policy

[18] See article: Public Finance, available at en.wikipedia.org/wiki/public-finance

[19] Ibid

[20] See Section 10 of the Public Financial Management Act

[21] See Section 35 and Section 125 of the Public Financial Management Act

[22] See Section 175 of the Public Financial Management Act

[23] See Section 24 of the Constituency Development Act

[24] See Charles F. Bastable (1892), Public Finance

[25] See Hugh Dalton (1992), Principles of Public Finance

[26] See Harold Groves, Principles of Public Finance

[27] See P E. Taylor, The Economics of Public Finance

[28] See Mrs. Ursula Hicks, Public Finance

[29] See C S. Shoup, Public Finance

[30] Supra n 19

[31] See article 201 (a) of the constitution of Kenya 2010

[32] See article 201 (b) (ii) of the constitution of Kenya 2010

[33] See article 201 (b) (iii) of the constitution of Kenya 2010

[34] See paper by The World Bank Group; Decentralization and Sub-national Regional Economics

[35] See chapter Eleven of the constitution of Kenya 2010

[36] See article 174 (h) and (I) of the constitution of Kenya 2010

[37] See article 175 (b) of the constitution of Kenya 2010

[38] See article 176 (2) of the constitution of Kenya 2010

[39] See article 187 (1) of the constitution of Kenya 2010

[40] See article 187 (1) (a) of the constitution of Kenya 2010

[41] See article 189 of the constitution of Kenya 2010

[42] See article 189 (1) (a) of the constitution of Kenya 2010

[43] See Article 201 of the Constitution of Kenya 2010

[44] Ibid

[45] See Ter-Minassian, T. (1997) Fiscal Federalism: Theory and Practice

[46] See Paul Smoke, Fiscal Decentralization in Developing Countries

[47] Supra n 34

[48] Ibid

[49] Ibid

[50] IEA research paper, Series No. 24, Devolution in Kenya: Prospects, challenges and the future

[51] See Cochrane, G. ‘Policies for Strengthening Local Government in Developing Countries’ World Bank Staff Working Paper No. 582, World Bank, Washington, DC, 1983

[52] See Kee W. “Fiscal decentralization and Economic Development”, Public Finance Quarterly, Vol. 5, No. 1, 1997

[53] See Zhang, T. and H. Zou, ‘Fiscal Decentralization, Public Spending and Economic Growth in China’, Journal of Public Economics, Vol 67, 1998

[54] See Estache, A. and S. Sinha “Does decentralization increase public infrastructure expenditure?’

[55] See Crook, R.  and J. Manor “Enhancing Participation and Institutional Performance: Democratic Decentralization in South Asia and West Africa

[56] Ibid

[57] See Smoke P.  “Fiscal decentralization in Indonesia. A New Approach to an Old idea.”

Political Parties as the Bedrock of Democracy and Good Governance in Kenya: Lessons from the African National Congress (ANC)

Opinion Blog

Political Parties in Kenya

While Political Parties in Kenya may be defined as loose ethnic organizations-based on personal vision and politics- that are formed as vehicles to get political power, the African National Congress (ANC) and political party politics in South Africa appear to operate on a  different tangent; an oasis in a large desert of political indiscipline, corruption, dishonesty and lack of vision. It is only in South Africa and the ANC that two Presidents have resigned, pushed out by the party due to allegation of corruption, mismanagement and abuse of office. Imagine for a minute, Kenya’s Jubilee Party asking President Kenyatta to step aside on account of failure to tackle corruption or the Orange Democratic Movement pushing for a vote of no confidence against Rt. Hon. Raila Amollo Odinga. This is not just laughable but impossible. It is against this backdrop that this article reflects on political parties’ culture in Kenya. This discussion based on five areas that Kenyan political parties may want to consider so as to be champions of democracy and good governance.

National-based Political Parties

The first thing for Kenya is to grow her national political outfits as opposed to ethnic and personality-based organization. It may be true this situation was crafted and seeds planted by the colonialist however, it is over fifty years and it is important for Kenyans to step out of the colonialist fangs. The Constitution of Kenya, 2010 in Article 91 demands of political parties to have a national character. This means that they should be inclusive and seek the common good of all Kenyans. As much as politicians may not agree, parties in Kenya are aligned to tribes. They carry the aspirations and dreams of their tribes. This takes away national unity and objectivity in political parties. No wonder in Kenya, political parties are not about intergrity, fighting corruption. They are not about the rule of law; rather, it’s about tribal interests and power. National-based political parties also mean parties that have women, persons living with disabilities and minority groups. If they were not so much engrossed in tribalism, they would be pushing the agendas for these people as they include them in their decision-making organs and policies.

Issue-based political Parties

Kenyan political parties like the ANC must be based on issues. It is hypocritical to expect candidates to campaign on issues when the parties do not have a stand on certain ideologies. Political parties should not be a difference between class or tribe, but ideologies. What is the Jubilee Party’s position on Genetically Modified Foods, or Wiper Democratic Party’s position on reforestation? What about the Orange Democratic Movement’s policy on inclusivity, healthcare, job creation and eradication on poverty.  This explains why political parties have identical yet unrealistic manifestoes every election year. Their ideas do not resonate with the citizens. They often have no clue on what the ordinary citizens goes through. A good example is the primary schools laptops project. It is very absurd to buy laptops for children who do not have books, pencils, teachers, classrooms, etc. If parties stand for ideologies that resonate with the people, it will be easy to do issue-based politics.

Issue based politics also helps cure the culture of party- hopping. Legislation attempted to help by putting a time limit for changing parties however; this gave birth to independent candidates.  The point is political parties need to cultivate a culture of ideologies upon which its members must abide by, in that way, party hopping will naturally die off.

Institutionalized Political Parties

The other thing to learn from ANC is to strengthen party structures. Strong party structures means creating leadership that is autonomous and is guided by an acceptable value system. This is opposed to personality based political parties. Institutionalization of political party helps in growing membership, creating awareness and societal values, condemning vices and cultivating party democracy. There is a live debate on the inability of political parties to conduct proper primaries and how this eventually affects the general election. The answer to this is to take political power from specific people to independent structures and institutions. The ANC has   moved from the leadership of Oliver Thambo, to Nelson Mandela to Thabo Mbeki, Jacob Zuma and now Cyril Ramaphosa yet there are questions as to whether the Maendeleo ChapChap Party can survive without Governor Alfred Mutua.

How do political parties in Kenya discipline errant members? Kenyans have witnessed spectacular scenes from Members of Parliament and even Members of County Assemblies engaging in acts like physical fights in public and use of abusive language and hate speech, yet there is very little talk of discipline. If only this was taken as serious as it is with the ANC. Parties need to set standards for the members. It is very sad that in Kenya, politicians accused of corruption and abuse of office are protected rather than disciplined by their political parties.

Political Party Financing

For political parties to function properly there is need for financing. This however cannot be left for the elite and the party leadership. There needs to be a system that allows members to remit their contributions. In that way, all members get to own the projects by the parties. As this goes on the Government also need to be pro-active in checking their books of account and finances to ensure transparency and accountability. Legislation or Amendments to the Political Parties Act is necessary to regulate the moneys that are to be used in political activities. This is important as it helps in bring equity and equality in our politics.

Political Party Activities after Elections

What happens to political parties after elections? The ANC being majority in the House has always helped in holding the government to account, political parties in power in Kenya have always been a rubber stamp of the Government. The Constitution of Kenya, 2010 has given Parliament the power to oversight whether as a Jubilee or NASA affiliate. Political parties also play the role of pushing the agenda and representing the people’s needs, aspirations, desires and dreams. Political parties should be the avenue for citizens to speak out on governance issues. They need to be the space for a country to have dialogue. It is important for political parties to be a uniting factor rather than a dividing factor.

By:

Ouma Kizito Ajuong’-  Poet, Lawyer, Person with Disability, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD KSL, Legal Practice.

Defining ‘Independent Offices’ as Prescribed by the Constitution of Kenya, 2010

Opinion Blog‘Independent Offices’

The arrest, detention and ‘deportation’ of Mr. Miguna Miguna left many Kenyans shocked. This is because it has exposed the rot within the criminal justice system-something that characterized the dark days of the 80’s and 90’s in Kenya. While this is deliberately not a brief for Mr. Miguna, the uncouth, primitive, pedestrian, unprofessional and unlawful behavior of especially the Police Service left a lot to be desired. It was not only so embarrassing but also a manifestation of total disregard for Courts, Statute and Constitutional Human Right Law.

The funny bit of it is that at the end of it all, the Police appeared as more of the criminals as opposed to the treason-charged and self-proclaimed NRM general. Why should the Police Service behave this recklessly? Why play a game of cat and mouse with the High Court while breaking a myriad of fundamental provisions of the Human Rights Bill along the way? The answer to these questions is political interference. Interestingly however, the drafters of the Constitution of Kenya 2010- aiming to decentralize powers of the Executive- put safeguards in the name of Independent Offices, Commissions, the Judiciary and Parliament as a way to achieve both horizontal and vertical separation of powers.

Philosophically, Hans Kelsen assertions on a “sovereign” as one with ultimately all the power, someone who is not subject to anyone, doesn’t answer to anyone, yet everyone answer to them is frowned upon. Years of scholarship have emphasized that this “sovereign” doesn’t exist, especially in a democracy characterized by separation of powers. It is against this backdrop that Article 1 of the Constitution of Kenya, 2010 gives sovereign powers to the people of Kenya. It is carefully and deliberately crafted to bring out the rule of law and power of the people.  The President, Cabinet Secretaries, the Speakers, the Inspector-General of Police, the Attorney General are not therefore, sovereign but answerable to the Constitution and to the people of Kenya. This paper reflects on “Independent Offices” as a subject that has caused a back and forth since the promulgation of the supreme law.

The word “independence” ordinarily means separate. It denotes someone who is free and not controlled by anyone. Independent Offices as designed in the law however, have autonomy as much as they are accountable.

Simply put, these offices are deliberately designed this way, so that the holders can perform optimally without interference but also be properly accountable to other arms, organs, agencies and the people without passing blame. The Chief Justice for example, has the autonomy in managing and leading the Judiciary without interference by Parliament or the Executive but he is equally answerable to Parliament and Judicial Service Commission should there be questions. The Constitution of Kenya, 2010 majorly instituted Independent Commissions and others as discussed herein.

Independent Commissions (Chapter Fifteen)

Independent Commissions are so central to the working and administration of Government under the current regime. There are those that were created to cure historical injustices, while others have purely administrative functions dealing with different but important sectors of Government. They were created to decentralize presidential powers while promoting efficiency, accountability, constitutionalism and values and principles of the Constitution 2010. There have been a number of “conflicts” witnessed between some of these commissions and other organs of Government. These often undermine and interfere with the objects and independence of these Commissions. The National Land Commission set up under Article 67 for example, had a lot of tussles with the Ministry of Land over their functions and overlapping roles. Today the members of the commission are engulfed with accusations of corruption.

The Salaries and Remuneration Commission is another that has had a fairly hard time. Article 230(4) of the Constitution gave them the power to set and regularly review the remuneration of public servants as they advise both County and National Governments. This was brought in to ensure equity and equality in public service remuneration as they manage the wage bill. They had to face confrontations, conflicts and interference with their objects especially with parliament and it is not surprising that as the commission winds up, members of parliament are seeking more money in the name of car grants, mileage allowances, etc. The National Police Service Commission has also recently been on the spot for conducting interviews subject to presidential directions contrary to the Constitution and the law.

 Independent Boundaries and Electoral Commission (IEBC)

The drama and politics around the IEBC after the nullification of the August 8 Presidential election justifies this article in more than one way. As much as it is almost forgotten the Commission is still accused of contempt of court with regards to opening the servers. This emphasizes the earlier point that with independence and autonomy comes accountability. Away from this, NASA’s irreducible minimums and the Jubilee Party’s insistence on the repeat elections coupled with in-fighting within the Commission along political lines almost torpedoed Kenya’s political stability. This was tragic as both international and municipal laws insist on independence, neutrality, fairness, accuracy and credibility in the working of the electoral management body. Kenya’s electoral history paints a very dark picture when it comes to EMB’s especially the Samuel Kivuitu-led defunct ECK. However, the lessons that should have been learnt seem to have dried away like the morning dew.

Office of the Attorney General

The Office of the Attorney General is another Independent Office. This is because he/she is the principle legal adviser to the Government. He/she has the duty to appear and defend the Government in both civil and criminal case. The office’s autonomy is important for objectivity, professionalism and accountability. In the event that TV stations are shut down by Government in contempt of court orders, then the independence of the Office of the Attorney General comes to question. Article 156 (6) of the Constitution of Kenya 2010 states that the Attorney General is the guardian of the rule of law and public interest and that involves obeying court orders and respect to the due process of the law.

Office of the Director of Public Prosecution

This is a new office that was historically cut out of the office of the Attorney General. The idea behind this was to take the role of prosecution from the police and give it to lawyers. The DPP under Article 157 (10) has the authority to enter criminal proceedings without directions. He/she may also direct the Police Service and the Inspector General to conduct investigations on a case. The importance of independence of the office cannot be over-emphasized. The Office of the DPP should however obey the courts of law; contempt of court is the lowest any lawyer can get. The case of Mr. Miguna also raised questions as to the charge sheet and the role of the Police vis-a-vis the Office of the Director of Public Prosecution.

Office of Inspector-General of Police

This Office is a new creation of the Constitution of Kenya, 2010. It was designed to replace the office of the Police Commissioner. The Inspector General performs independent command of the Police Service pursuant to Article 245 (2) (b). In the efforts to transform the police force into a police service, there was need to create an independent police command structure which enables them to work effectively without interference but with accountability.

This underscores the need for the police to be neutral and professional in political matters. As for the command structure neither the President nor the Cabinet Secretary in charge has a right to direct the Inspector-General. He/ She takes full responsibility when civilians are killed or court orders are not obeyed.

Other Independent Offices

The doctrine of Separation of powers primae facie creates three independent but coordinating offices, thus office of the President, Chief Justice and President of the Supreme Court and Office of the Speaker from the two houses. The Governor’s office and the Country Assemblies under Chapter 11 of the Constitution of Kenya 2010 and the County Government Act also have independence and autonomy from the National Government. This point is further cemented by Schedule 4 giving the different functions to the County as well as National Government.

The Office of the Controller of Budget under Article 228(1) of the Constitution of Kenya, 2010 and the Auditor-General under article 229(1) are also independent offices meant to streamline public finances.

Checks and balances is the name of the game. This is one way to ensure efficiency and inclusivity in running the affairs of government. They must however work in cooperation and coordination. There is therefore a need to keep to the rule of law even as Kenya cultivates the culture of democracy.

“I am a Lawyer, I go for due process, I go for equity and equality, and these things mean a lot to me” -Mohamed Elbaradei.

By:

Ouma Kizito Ajuong’-  Poet, Lawyer, Person with Disability, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD KSL, Legal Practice.

 

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.