Success Story of Moses Ndegwa Ngugi

Success Story of Moses Ndegwa Ngugi

Republic vs. Moses Ndegwa Ngugi – Crim. Case No.602/17

Moses Ndegwa (in white t-shirt,center) poses with Kituo members of staff at the Head Office after receiving the ruling. [RCKM].

Moses Ndegwa Ngugi heaved a sigh of relief and shed tears of joy after receiving a positive judgment from the Chief Magistrates’ Court at Gatundu, Kiambu; the Chief Magistrate L. M. Wachira found that Moses had no case to answer and acquitted him under Section 210 of the Criminal Procedure Code. Moses Ndegwa Ngugi was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code.

The facts of the case being that the prosecution alleged that on 1st June 2017, at around 1.15am, the accused person with others not before the court armed with crude weapons namely axes, pangas and craw bars invaded the house of one Lucy Wanja Waiganjo and gained entry into her sitting room after cutting the window grills with an axe and robbed her of her wedding ring, mobile phone make infinix and Kshs.3, 000/- all valued at Kshs.22,700.

The accused was identified in a police parade allegedly based on his voice. Kituo Cha Sheria advocate, Rhoda Maina was on record on behalf of the accused person and during the hearing, the prosecution called 5 witnesses and after closing its case, Ndegwa’s advocate filed her submissions. The Court strongly considered the circumstances of identification as narrated by the witness and in their considered view; circumstances on the night were stressful and not suitable for positive identification of any assailant. The Court further found serious doubts on the evidence on the question of identification of the suspect who had been arrested in a police swoop. The Court concluded that the evidence on record did not put forward a proper case of robbery with violence and if the accussed was to be placed on defence and chose to remain silent; the evidence would not sustain a conviction. Accordingly, the accused was set at liberty and accordingly acquitted under section 210 of the Criminal Procedure Code in a ruling delivered on 12th April 2019.

Mr. Ndegwa, a young man who was staring at a future despair, was ultimately very grateful for the assistance offered to him by Kituo Cha Sheria throughout his journey in the justice system.

This is yet another small victory for a Kenyan who had nowhere to turn to but Kituo Cha Sheria, the people who care for justice for the poor and marginalized people in society.

RCKM

Kituo Cha Sheria

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DURESS AND UNDUE INFLUENCE AS LAW ON UNCONSCIONABLE CONTRACTS

DURESS AND UNDUE INFLUENCE AS LAW ON UNCONSCIONABLE CONTRACTS

Unconscionable contracts

An unconscionable contract is unenforceable under the law. This is due to the fact that such a contract is highly one sided and therefore the result is that one party in the contract will suffer unfairness. In most cases, this is occasioned by the substantial bargaining power of the parties where one of the parties to the contract enjoy excess bargaining power while the other party does not.

There are various factors that make a contract between parties become unconscionable. Such factors are like Duress, undue influence unfair surprise, limiting warranty and even unequal bargaining power. This therefore means that if there was any transfer of goods or even money, the aggrieved party may claim the same back in restitution and on the just basis of unjust enrichment. This is however subject to certain defenses that may be brought by the other party.

Lord Denning in the case of Lloyds Bank Limited v Bundy found there to be need to have a general principle to govern this are of law where he termed the concept as the inequality of the bargaining power of the parties to the contract.[1]

This has also been the case in another decided American of Williams v Walker-Thomas Furniture Company. In this case, the court termed the issues advanced by the Plaintiff as one of unconscionability. This is also in line with the findings of the court in the Lloyds Bank Limited case.[2]

In the Earl of Chesterfield case, the court stated that unconscionability may be apparent from the intrinsic nature and subject of the bargain made. The court further stated that the bargain should be such as no man in his senses and not under a delusion would make on one hand and as no honest man would accept on the other, which are unequitable and unconscientious bargains, and of such even the common law take notice.[3]

Duress defined

Duress occurs when wrongful pressure is exerted on a party to enter the contract. The pressure should have the threat of immediate harm if the party under duress fails to comply with the demands of the violating party to enter into the contract.

Duress may also be defined as a threat of harm made to compel a person to do something against his or her will or judgment and especially a wrongful threat made by one person especially in the terms of contract law in order to compel a manifestation of seeming assent by the other person to the transaction without the actual volition of the victim.[4]

In the case of Barton v Armstrong, one of the party to the contract threatened the other with death if the other party did not comply and sign the contract. The effect of such duress was that the privy council set aside the contract on the grounds of duress.[5]

The test for duress in the context of rendering a contract unconscionable has further been reiterated in the case of  Universe Tankships Inc. of Monrovia v International Transport Workers’ Federationwhere Lord Diplock stated that in finding duress in a contract, focus should not be placed on knowing what one is contracting for, rather to the fact that the consent by the Plaintiff was induced by pressure exerted on him by the other party to the contract which is not legitimate pressure before the law. The pressure must however be revocable unless approbated either expressly or even by implication.[6]

Defining Undue influence

This is where a party who is at a position of trust abuses that position of trust thereby taking advantage of the inferior party. This means that there must exist some sort of relationship based on trust between the superior and inferior party.

The court in the Lancashire Loans case gave the example of a contract between a parent and their child. In such a relationship, the parent is definitely superior while the child is the inferior party in the contract. The court further stated that the burden of proof is therefore on the recipient to show independent advice to the donor.[7]

Courts have also allowed the Plaintiffs to seek a remedy in contract law on other grounds. In the case of Cresswell v Potter,[8] the court stated that the Plaintiff satisfied the court that she was poor and ignorant and that alone was enough in the courts view to show that the contract was biased. This is a similar disposition from the above example of a contract between a child and their parent.

In the above case, the court made reference to the case ofFry v Lane[9] where the court stated that equity as a remedy in contract law interferes but in the favor of an expectant heir who is in his youth years or a poor and marginalized person who has imperfect education. The tests for whether there was an imbalance in the bargaining power of the parties to the contract were set put in this case.

It is however very important to note that undue influence doesn’t necessarily need to be direct. In other situations, it may be presumed. This was demonstrated in the case of Barclays Bank plc v O’Brien[10]In this case, the court after examining the fact of the case came to a conclusion that misrepresentation by Mr. O’Brien didn’t make the bank responsible.

In the above case, Mr. O’Brien secured an overdraft using his matrimonial home when his company was doing badly and he needed financial assistance. The same was guaranteed by Mrs. O’Brien who signed a document she had not read after a bank employee made a note stating that Mrs. O’Brien may be a problem when Mr. O’Brien tried to get an overdraft. Later Mrs. O’Brien claimed that she was unduly influenced into the contract and that she cannot have been bound by the contract. The court however rejected this disposition and argument advanced by Mrs. O’Brien. The judge therefore proceeded to order possession of the home.

Does Duress and Undue Influence form the law on unconscionable contracts?

In the case of Cumming v Ince[11], an inmate serving at a mental asylum that was privately owned was coerced into signing away the ownership of her properties to a selected relative under the promise that if she did sign away title to her properties, the order that committed her would be lifted. The court found that the contract had not been signed out of her own will and was therefore unenforceable and was set aside by the court. The contract was therefore unconscionable.

This therefore means that a contract that can be enforced by the law must have been entered into and signed by both parties out of their own free will. Consequently, when the consent is coerced, forced or/and suppressed, the contract automatically and instantly becomes a voidable contract. This cannot therefore be enforced. This position was also taken by the court in the case of Barton v Armstrong.[12]

However, courts are keen to ensure that the coercion, suppression or force are proved. This was clear in the case of Pao On v Lau Yiu Long.[13]The courts will therefore seek to ensure that the person allegedly coerced protested or whether they did not protest at all. It is also important that the courts look into whether the coerced party took steps to avoid the contract after signing and importantly whether or not he obtained independent advice.

Most courts follow the above tests due to the fact that if a party failed to take any steps to avoid a contract that they were coerced into then the party is deemed to have accepted the terms of the contract irrespective of the fact that there may actually have been duress into entering the contract.Such a party to a contract will therefore be restricted from changing their mind at a later stage of the contract execution.

Initially and in the early days, duress was only recognized by the courts when it affects the person themselves. This was not the case when it concerned property. In the case of Skeate v Beale[14] the court declined to set aside the contract. In this case a landlord threatened a tenant that he will levy duties if the tenant failed to pay the debt owed. The tenant proceeded to pay part of the amount and further gave a promise to pay the balance in a period of one month. The tenant was unable to keep the promise when the period lapsed. The landlord therefore proceeded to bring a suit against the tenant and the tenant pleaded duress. The court declined and refused to set aside the contract. The court held the position that the threat was not to the person but to the goods and therefore the Defendant cannot sustain the defense of duress.

Conclusion

Based on the above illustrations and precedent, it is correct to state that duress and undue influence for the law on unconscionable contracts. The position of the courts should therefore be that where there is evidence or it can be proved that one party to the contract is in an influential position, then that party must bear the burden of proof to prove that the contract was signed absolutely on a voluntary basis by the weaker party and that there was no element of duress or undue influence.

On the other hand, I totally agree with the positions and decisions the courts have made before of ensuring the party suffering a suit or an action is also protected. This is by ensuring that the party claiming duress or undue influence made the necessary steps to avoid the contract when they first suffered duress or undue influence and even protested at the initial or latter stages of the contract.

Once the aggrieved party to the contract is able to demonstrate the above, then it would be fair and just that they be allowed to fully recover any money paid in advance in the course of the execution of the contract due to the fact that the same was payment made without the will of the aggrieved party and in an environment of economic pressure.

On the contrary, another important thing that must be noted is that if a party to a contract is aggrieved in the course of the exercising a right by the other party then undue influence and duress cannot be pleaded. This was demonstrated in the case of Hassanali Issa & Co. v Jeraj Produce Store.[15]In the above case, repairs were done by a store owner to a bike. The store owner thereafter kept the bike waiting for collection of the same by the owner of the bike. When a bill was issued to the owner, he protested the bill but later issued a cheque which he again cancelled immediately after the collection of the bike.

When an action was brought against the bike owner he claimed the cheque was issued under duress. The court held that there was no duress and that the store owner was simply exercising lien over the bike pending the payment of his dues. This case therefore sets it clear that in exercise or a legal right then the aggrieved party cannot claim/plead duress or undue influence.

By:

Ephraim Kayere

Kituo Cha Sheria

Bibliography

Black’s Law Dictionary, [8th Edition, 2004]

List of cases

Barclays Bank plc v O’brien [1993] UKHL 6

Barton v Armstrong [1976] AC 104

Cresswell v Potter [1978] 1 WLR 255

Cumming v Ince [1847] 11 QB 112

Earl of Chesterfield v Janssen [1751] 28 Eng Rep 82, 100

Fry v Lane [1888] 40 Ch D 312

Hassanali Issa & Co. v Jeraj Produce Store [1967] EA 555

Lancashire Loans Ltd V Black [1934] I KB 380 404.

Lloyds Bank Limited v Bundy [1975] QB 326

Pao On v Lau Yiu Long [1980] AC 614

Skeate v Beale [1840] 11 AD & EL 983

Universe Tankships Inc. of Monrovia v International Transport Workers’ Federation [1982] 2 AII ER 67

Williams v Walker-Thomas Furniture Company [1965] C.A D.C 350 F.2d 445


[1]Lloyds Bank Limited v Bundy [1975] QB 326

[2]Williams v Walker-Thomas Furniture Company[1965] C.A D.C 350 F.2d 445

[3]Earl of Chesterfield v Janssen [1751] 28 Eng Rep 82, 100

[4] Black’s Law Dictionary, [8th Edition, 2004]

[5]Barton v Armstrong [1976] AC 104

[6]Universe Tankships Inc. of Monrovia v International Transport Workers’ Federation [1982] 2 AII ER 67

[7]Lancashire Loans Ltd V Black [1934] I KB 380 404.

[8]Cresswell v Potter [1978] 1 WLR 255

[9]Fry v Lane [1888] 40 Ch D 312

[10]Barclays Bank plc vO’brien [1993] UKHL 6

[11]Cumming v Ince [1847] 11 QB 112

[12]Supra n 5

[13]Pao On v Lau Yiu Long [1980] AC 614

[14]Skeate v Beale [1840] 11 AD & EL 983

[15]Hassanali Issa & Co. v Jeraj Produce Store [1967] EA 555

This is what Sports can do for Kenya: My Letter to President Uhuru Kenyatta

Dear Mr. President,

A fool is described as someone who does something in the same way, every time, yet they expect different results. While this definition may not have customary acceptance, it carries with it a lot of scientific and logical sense which Kenya needs to listen to. I am not talking about the numerous scandals and headlines on corruption that colour our dailies. I am not also referring to the huge number of unemployed Kenyan youth. I am in no way talking about the inadequate education system that has turned out to be a train wreck. I am not talking of the nightmares of a poor public health system. Today, I am talking about sports. I seek to interrogate the question of sports in Kenya. As Mr. Rashid Echesa leaves office and Amb. Amina Muhammed takes over; I can’t help but wonder whether Kenya is still doing the same thing in the same manner and expecting a different outcome. What, therefore, do sports mean anything for Kenya? And what can it do for Kenya?

Sports mean different things to different people in Kenya. There is however no escaping the reality that Kenya is a global powerhouse in sports. As much as she is historically known to produce the best long distance runners (Athletics), she has quickly curved out a niche for herself in the world of Rugby. Kenya has something to say with regards to continental club championship as the home of football powerhouse- Gor Mahia. She can always be ever so proud of the likes of Wangila Napunyi who paid the ultimate prize in the ring while representing Kenya at the Olympics. This is just a glimpse of both the historical and present cluster of talent that makes the red, white green and black colours ride high. Unfortunately sports in Kenya go through a number of challenges top among these: lack of infrastructure, resources, poorly organized federation, mismanagement and lack of political support.

Like many of the challenges Kenya faces today, the rain started beating Kenya from the beginning. While sports associations were formed to help grow sports, in Kenya many people with political aspirations found them a fertile ground to mobilize political support. This left the federations hollow with no structures, system or sustainability. The previous regimes have not also taken sports seriously. There has always been very little in terms of budgetary allocation for the ministry and perhaps it is one of the ministries not seen to be important enough to be a loan ministry. Is it true that the sports ministry is one of those “small” ministries that is always given as a reward for political chorines or as a redemption platform for CSs who have failed elsewhere?  If this is true Kenya need not expect different results.

I must insist that managing sports in Kenya is not a walk in the park. It is perhaps one of the toughest ministries as it brings together different aspects and interests of Kenya. This therefore needs people with the right qualifications, skills, drive and perhaps ideas.  If done right, this is what sports could do for Kenya.

Sportsmen and women play a big role as Ambassadors for Kenya. As they put on the national colours and play their hearts out or run it down, they showcase the people, the character and culture of Kenya. As a result of this, Kenya is able to get tourists and investors who are willing hence spur economic growth. Sports business in terms of endorsements and sponsorships play a big part in generating money for the economy. It is not a secret that sports betting companies make a lot of money but as they do, the exchequer gets the tax and sponsorship to a number of sports and club. I must also state that there are a number of people who get their livelihood from sports hence the need to grow the industry. Today unlike the past, sport is a career that a young man or a woman can take on and build their lives. I bet a little more effort in developing sports in Kenya may go a long way in reducing youth unemployment but that’s just a thought. What if Kenya was ambitious enough to build infrastructure and host the next Afcon? 

Sport brings people together. It is never about gender, race or tribe but values of hard work, fortitude, belief and patriotism. Kenyans cannot deny that it is afflicted by tribalism and hatred for the minority and therefore what better way to eradicate this than with sports. The building bridges initiative which is part of your legacy as President can be best driven by sports. In addition to this, sports demonstrate Kenya’s culture. It brings people together to celebrate. Think of the fun, joy, pomp and colour that always accompanies Mashemeji derby in Nairobi and replicate that in the other 46 counties.

There are other benefits such as impacting values and skills and keeping the youth off drugs and other vices. This is because it often gives them an alternative way of life. I have heard of many inspirational stories of sports personalities who used sports to shield themselves from the life in the slums and made it out!

Lastly Mr. President think of the sports model as the model for politics in Kenya, here we walk in as friends, play our hearts out, compete so hard yet walk out as friends; perhaps it is what you desire for Kenya. I therefore urge you to put more thoughts into sports, get more personnel and demand more from your team

Yours faithfully,

Ouma Kizito Ajuong- Advocate of the High Court of Kenya

& Gor Mahia Fan

Tax Relief Regulations for Persons Living with Disabilities (PWD’s) are Simply Unconstitutional


I would like to begin this paper by stating a few irrefutable facts. Firstly, persons living with disabilities (herein PWDs) form a small but significant segment of Kenya’s population. While the numbers 1.3 million; 3.5% of Kenya’s population; (Census 2009) explain the “smallness’’, their significance springs from values of human dignity, legal trends today and best international practices. Secondly, contrary to popular conceptions, disability is for everyone.

As much as policy makers and legislative drafters like to think of disability laws as “special laws” for a few people, they always forget the obvious nature of disability. It never comes by invitation. Disability does not knock or choose.  Lastly, it is important to say that as much as tax relief is a privilege, it is not a favor from the State, it is a constitutional right. Those who write tax relief regulations or policy should therefore not behave as if they are doing charity work. It doesn’t make sense that something meant to make life easier for PWDs, has made things even harder.

I am not in any way suggesting that tax relief for PWDs should be done without regulations; I am of course in support of protection of the intergrity and sanctity of the programme, however, regulations that primae facie exhibit stupidity, ignorance and meant to strain  already strained people do not in any way enforce the aforesaid  values. It is premitivity and lack of wisdom that makes one to write regulations that requires PWDs to move back and forth from their employers to the council of persons with disabilities, to the Ministry of Health while ignoring mobility challenges in an era of Huduma Centers. It is preposterous that these regulations require PWDs to go for medical assessment every time they need to renew tax relief certificate as it ignores PWDs with permanent disabilities. This is to say that PWDs with albinism will grow melanin or that amputees will grow limbs within five years of tax relief? The long time it takes (about 4 months) to process tax exemption certificates adds to the illogical and disturbing culture of peripheral treatment of PWDs as aided by these regulations.

My focus however is to demonstrate how these regulations offend the letter and the spirit of the Constitution of Kenya (2010). It is important to note that one of the pillars of the Constitution of Kenya (2010) is elevation, protection and respect of human rights.  It has even gone further to incorporate international norms and instruments in this regards.

The Rights of PWDs are therefore not just given prominence through Article 54 of the Constitution of Kenya (2010) but domestication of   UN International Convention on the Rights of PWDs and its protocols and interpretation of Articles 2(5) and 2(6) of the Constitution of Kenya 2010.

Before I get to the unconstitutionality of tax relief regulations, I would like to define disability from the lenses of the Constitution of Kenya 2010. Article 260 defines disability to include, any physical, sensory, mental, or psychological impairment, condition or illness that has or is perceived by a significant sector of the community to have a long term effect on an individual’s ability to carry out day to day activity. Affirmative Action on the other hand means, any measure designed to overcome or ameliorate an inequality in the system, denial or infringement of a right or fundamental freedom. This therefore means that PWDs are disadvantaged and affirmative action comes in to try and mitigate the situation hence tax relief. How are these regulations unconstitutional?

Economic Rights Perspective

The preamble of the Constitution of Kenya 2010 makes a promise of nurturing the well-being of individuals. Well-being from PWDs point of view is that they should be able to get basic needs and economic empowerment. The difficulties and unique challenges that PWDs go through in school or at work places should not be lost on anyone. It is out of these that they are entitled to tax exemption.  These regulations negate, as oppose to acting as a hand-maiden for this programme. When PWDs are made to go through a winding process between the doctors to the tax man to their employers and a cosmetic disability council, it results to denial of economic rights. It does not make sense that getting a tax exemption certificate takes up to four months. The saddest part of this is that as they struggle to get the certificates or renew them; employers are always happy to tax PWDs. If I did not know any better, I would call that a conspiracy to commit theft by the State.

Right to Human Dignity

The Constitution of Kenya (2010) requires that human worth be respected and protected. Article 28 of the supreme law states that the right to dignity is inherent. As much as the definition of human dignity is amorphous, it boils down to the sense of “humanness.”  

PWDs in Kenya have to deal with issues of dignity and self-worth in an environment that is disability unfriendly.

Asking PWDs who are visually impaired or have mobility challenges to submit their documents and follow up on them; in disability unfriendly buildings like the one that houses the Ministry of Health is not a breach of this right but a disgrace. I am also concerned about the back and forth movements from the employers to the tax man to the Ministry of Health keeping in mind Kenya’s chaotic public transport system. I look at this as very slow thinking from the persons concerned and a disregard of a constitutional principle.

Right from Discrimination

The Constitution of Kenya frowns upon any form of discrimination. Article 27 (4) states that it is against the aspirations of Kenyans to discriminate against anyone – directly or indirectly. Do the tax relief regulations discriminate against PWDs? The simple answer is yes and I will explain. I go with the legal maxim that whoever alleges must prove, but how many times should they be made to prove their disability. A regulation that requires all PWDs to go for medical assessment every time they want to renew their tax relief certificate is discriminatory at best. Making the process too complicated also amounts to putting PWDs on the spot which is discriminatory. I see this as inadequate use of common sense and an attempt to resist creativity from the State.

Rights to Affirmative Action

The Constitution of Kenya (2010) through Articles 27 (5) and (6) recognizes affirmative action- tax relief for PWDs is one such action. The law puts only one condition- it has to be on genuine need. This means that any legislative or regulatory body has the duty to promote the programme and not kill it. When regulations are so stringent to the point that they make other PWDs give up on the process, they breach these provisions.

In Conclusion

As I have stated before, as a lawyer I was taught that the rules of procedure are made to be hand maidens. This means that they need to help substantive provisions. Tax relief regulations for PWDs as presently constituted and enforced are but a mockery to this.

There is need to urgently change this situation and I have a few recommendations:-  

There is need for legislative interventions. I am calling for an amendment of the Persons Living with Disability Act. The Act needs to give parameters to the regulations in line with the challenges and realities of PWDs in Kenya today.

There is need to mainstream the process so that it is faster and easier fop ;PWDs. One stop shop like Huduma center where PWDs can get everything done may be one quick solution.

Even as Kenya prepares for a census in 2019; there may be need to invest in a data base with information for PWDs. Those with permanent disabilities may be registered once to avoid redundancies and bad jokes currently encountered.

By:

Ouma Kizito Ajuong

Advocate   

SUCCESS STORY FROM KAMUKUNJI COMMUNITY JUSTICE CENTRE – VINCENT ONANO ONDEGO

Success: Vincent Onano Ondego
Vincent Onano Ondego approached the Kamukunji Community Justice Centre (KCJC) seeking legal advice and possible representation regarding a dispute with his landlord. Vincent Onano Ondego, a humble, middle-aged man with a family of seven children approached the justice centre in 2018, seven years since he’d heard about the services offered by the justice centre.

Sometime in 2011, a friend living with Onano in Nairobi’s Majengo neighborhood had informed him of legal assistance he got from the justice centre in a dispute with his tenant. Mr. Onano had worked as a night guard for much of his adult life struggling with raising his family when he unexpectedly lost his job in 2015. Even with this setback, life had to move on and Onano set up a makeshift ‘kibanda’ on an open space adjacent to his house to start a shoe-making and repair business. Mr. Onano, the cobbler thrived in this area and worked at his station until sometime in August 2018 when he served his landlord with notice to move house. The landlord turned hostile and claimed ownership of the business operation space as part of his property. Onano could not fathom this claim as he had painstakingly built up his premises over time and it was the only source of livelihood for his family.

Afterwards the landlord locked his work station illegally, Onano visited the Kamukunji Community Justice Centre to get assistance. He was directed to the assistant chief who offered authorization for Onano to continue with his work as the kibanda was on a road reserve and not on the landlord’s property. The justice centre also wrote a letter to the landlord asking him to cease the illegal eviction. Armed with the two letters, Mr. Onano went back to continue with his work, however, the wealthy landlord co-opted other local administration officials and police officers to disregard this legal position. Guided by the community paralegals, Onano approached the rent restriction tribunal and filed a claim. The tribunal is established under Section 4 of the Rent Restriction Act, Cap 296, Laws of Kenya and is mandated to determine disputes between landlords and tenants of protected tenancies, which are residential buildings whose rent does not exceed Ksh. 2500.

On 26th November, 2018 the hearing was conducted and Mr. Onano got orders protecting him from eviction even as he self-represented himself with the guidance of the community paralegals. The orders were served to the area police division head for enforcement and after a tedious process of follow-up process, the business premises were opened and Mr. Onano was back in operation. Mr. Onano was very grateful to the Kamukunji Community Justice centre and the community paralegals for walking the long journey with him to protect his rights. A lot of time was lost when his kibanda was illegally closed but now Mr. Onano is a happy cobbler fending for his family and serving the community.

RCKM

Kituo Cha Sheria

SUCCESS STORY FROM KAMUKUNJI COMMUNITY JUSTICE CENTRE – JOSEPH ONYANGO

Success Story: Joseph Onyango
J
oseph Onyango approached the Kamukunji Community Justice Centre (KCJC) seeking legal advice and possible representation regarding a succession matter in his rural home in Siaya County. Mr. Onyango was a founding member of KCBONET, a local Community Based Organization which is the host entity of the Kamukunji Community Justice Centre. He was therefore not new to the work undertaken by the centre. He sought legal assistance on a succession matter undertaken in 2013.

As a resident of Majengo, Nairobi, Mr. Onyango was not aware of the process of succession that was initiated and completed illegally by a member of his family of seven brothers. The area land registrar undertook sub-division without consultation and disinherited some members of the estate. In December 2016, with assistance from the justice centre coordinator Mr. Ezekiel Njenga; Mr. Onyango started the journey of correcting an injustice. They revived and followed up the case at the Siaya and Kisumu Law Courts, for three years they together uncovered a lot of misinformation, lies and forgeries in the succession documents used including fake names and signatures.

Their hard work paid off when the Confirmation of Grant was issued by the Court sitting in Kisumu for the Estate of Mzee Obaki to be re-distributed correctly and involve all members of the Estate. The Court issued orders for the title deeds to be surrendered to the land registrar. The succession process will kick-off on the 31st of January, 2019.

Mr. Onyango says he’s been helped a lot by the community justice paralegals and while the process has been long the family has got another opportunity to do the right thing and be mindful of all family members.

RCKM

Kituo Cha Sheria

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

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

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

Centrality of EMB’s to Electoral Justice   

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

Historical Appreciation of EMB’s in Kenya

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

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

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

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

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

Making the Appointment of Commissioners an Apolitical Process

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

Legal and Legislative Framework for the EMB

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

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

Civic and Political Education for Kenyans  

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

The IEBC and the Other Agencies

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

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

By

Ouma Kizito Ajuong’Advocate