Success stories from Nyando Community Justice Centre

NYANDO CJC LOGOSuccess Story from the Nyando Community Justice Centre

Article 48 of the Constitution of Kenya specifically advocates for access to justice for all. Kituo Cha Sheria has established Community Justice Centres that are managed and run by trained community paralegals to assist members of the community at the grassroots level across the country agitate for their human rights and resolve disputes without resorting to the court process.

The community paralegals offer free legal advice to the members of the public, educate them on various aspects of law and guide them on how to participate in governance and empower the entire community. Kituo has played a big role in supervising the community justice centres and providing technical assistance in legal matters that need the attention of an advocate. To date, Kituo has established Community Justice Centres in Kamukunji, Kibera, Korogocho (all in Nairobi), Kitui, Turkana, Nyando (Kisumu), Kisauni (Mombasa), Lamukani ( Kwale) and Marereni (Kilifi). The Community Justice Centers have significantly contributed to the goal of promoting access to justice for the poor and marginalized people in society and at the same time made justice accessible to those who could not afford the services of an advocate.

Success stories from Nyando Community Justice Centre

Rose Everline Tendwa 46 years old, resident of Homa-bay County approached Nyando Justice Centre seeking for legal assistance on family succession matter.

Rose who is also a widow and a third wife to her later husband Michael George Tendwa explained to Judith Ochanda, a community paralegal based at Nyando Commuinty Justice centre how her other two core wives sidelined her on a family succession plot.

According to rose, her late husband had properties including land, commercial buildings and rental houses in Homa-bay town. After her husband’s death they sat down as a family and agreed to do succession so that each household would have a share of the deceased property.

Rose later noticed that despise the family agreements on the said mattter, her step sons excluded the name of her daughter in the list of beneficiaries. They went further and filled this matter in court. Rose made several efforts to be served with the file to acquaint herself with the court proceedings but her efforts were thwarted down.

Rose decided to visit our justice center after she got our contacts from a radio talk show on radio Ramogi F.M. (avuncular local radio station where Kituo community paralegals frequently engage the community by educating and informing them on legal matters).

Judith Ochanda wrote a letter to the Chief Magistrate Homa bay court requesting them to grant Rose access to the case files.

They responded positively. Rose raised a complaint on the matter filled with the court and on 24th July 2018; the succession cause no.5of 2013 that was filed was cancelled by the court. The court further ordered that a fresh succession cause be done with all the names of the beneficiaries including Rose’ daughter and the properties of the deceased be included. Defamation case between Caren Onyango our client and Shadrack was successfully concluded through alternative dispute resolution.  Caren reported that they had a land boundary dispute between her and Shadrack her neighbor who trespassed into her land destroying the boundary and when she went to ask him why he was interfering with the boundary; Shadrack started calling her names and hurling abuses at her in public.

A demand letter was written to Shadrack to come for ADR in the office; both came and we had a lengthy talk and discussion with both of them; we managed to reconcile the two who later shook hands as sign of peace and reconciliation. We then advised them to go to the lands office and get the services from the lands surveyor to verify the boundaries so that they would get the real picture of each person’s boundary so that they cannot have future disputes between them.

In partnership and networking with other organizations our paralegals have attended workshops/trainings in different forums through invitations from different organization:

  1. On 20th July 2018, two paralegals from Nyando Justice Centre attended half day interactive security meeting between the Boda Boda operators and the senior police officers right from the County commander to the OCS’s manning all the police Stations within the two Sub-counties of Nyando and Muhoroni; this was geared towards creating peace and harmony between the police officers and the boda boda riders operating within the two Sub-counties. It had been noted that the mistrust and the poor working relation the law enforcement officers a recipe to insecurity, violence and in most cases chaos triggered with the Boda boda riders viewing police officers as their enemies and would sped off at the highest speed an office is on sight precipitating numerous accidents. The law enforcement officers a veered that the  life and safety of both boda boda riders and their passengers  since  it has always been noted that most of the boda boda operators do not obey the traffic rules hence causing a lot of accidents on the roads; most of them also do not have insurance and driving license; Boda boda operators also complained about some police officers taking bribe from them; in attendance were chairmen of the boda boda sector, Nyando paralgals, OCS   from different police stations within Nyando and Muhoroni; County Commander, the deputy County Commander , OCPDs from both the Sub –Counties and other stakeholders from different organization from Muhoroni and Nyando sub county.  The meeting was organized by Transparency International (TI).
  • This enable us know that most of the boda boda operators do not have a driving license with two classes as required by the traffic laws and they do not also have insurance cover that is supposed to be renewed after a period of time.
  • The Boda boda riders were advised to go for driving classes and obtain a driving license with two classes, each rider must have two helmets one for the rider and one for the customer, and each bike must not carry more than one passenger.
  • They were asked to report any case of bribery to the OCS, OCPD or to the county commander if the OCS or OCPD so that action can be taken towards the police who has been bribed.
  • The boda boda riders complained that they were being harassed by the APS(Administration Police) from Awasi at night and being robbed off their cash ; which the county commander said was very wrong and should be reported for action to be taken against the APS that are harassing them.
  • The meeting also enabled the boda boda riders to openly air their grievances without fear, with the law enforcement officers, explicitly explaining what the traffic laws entails regarding road safety and the traffic rules as enshrined in the traffic regulations. 

    RCKM

    Kituo Cha Sheria

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Success Stories: Alternative Justice System [AJS]

Kituo Cha Sheria has been implementing the Alternative Justice System AJS project since the year 2015. Through the project, Kituo lead conversations with survivors of the 2007-2008 Post Election Violence (PEV) across the regions that were heavily affected by the 2007-2008 PEV.

The project aimed at offering redress to crimes against property ownership and molding a safe platform of solving 2007/2008 PEV disputes arising between parties without recourse to the Courts to achieve peace, justice and reconciliation amongst the communities.

To-date Kituo has conducted a series of workshops in order to build the capacity of Commissioners and Adjudicators on the use of negotiation, mediation and non-violent Communication in Conflict Resolution.

Kituo has also Conducted AJS hearings in order to promote access to justice for the poor and marginalized- survivors affected by the 2007/2008 Post Election Violence (PEV) while fostering sustainable peace and co-existence among communities in Trans Nzoia.

Here are some of the success stories of the PEV civil disputes settled through a locally driven AJS mechanism in Trans Nzoia where the project was being implemented.

Francis Amira (Victim) and Jane Wekesa- (Offender)

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On 20th January 2008 at the height of Post-Election Violence (PEV) at Tobo, Mr Tarrus, Jane’s husband sold land to Francis Amira, measuring 45 feet by 60 feet within his farm. However, when this sale transaction was being carried out, Jane had separated from the husband and she was not at home.

Mr Tarrus being a Nandi elder, gave justification that he sold the land to buy cows to mark his eldership.

When Jane reconciled with her husband later in 2008 after the PEV had ceased, she has been hostile and aggressive towards Francis to a point that she uprooted Francis crops and boundary marks at the land Francis had bought. She went ahead to warn Francis of dire consequences should Francis go ahead and develop the land in contention.

Since 2008, Francis has never completed developing his house on the land due to constant harassments by Jane. Jane claims that her husband is a drunkard and maybe Francis took advantage of this reason to dupe Mr Tarrus to sell her the land.

Mr Tarrus, however upon invitation by the Adjudicators as a witness to this case, stated that he was sober when conducting the sale of the land and even the village elders and his brothers were present during the transaction. He maintains the land belongs to Francis. After a 2 day mediation process, involving inviting witnesses from both the victim and offender, Jane softens her stand on the land.

AJS team together with the parties then visited the disputed land for reconnaissance. During this visit, Jane and Francis agree to reconcile and Francis requests that a land surveyor be brought to clearly measure and demarcate the land. The Land surveyor upon invitation by AJS team scheduled to conduct this exercise on 25th September 2018 with AJS team being present as witnesses hence closure to the dispute.  Both Jane and her Husband Mr Tarrus together with Francis and his wife shake hands as a sign of peace in regards to this land dispute. Jane asks for forgiveness from Francis and apologizes for her actions.

Mary Mwangi (Victim) and Margaret Chepchirchir (Offender)

When the PEV broke out in Tobo on 20th January 2008, Mary Mwangi and Jane Chepchirchir who were neighbours fled to Endebess town with their household belongings including mattress, clothes, jiko (cooker), blankets and utensils.

They were hosted by the Red Cross at Endebess and even shared the same tent in Endebess. However after a compensation of Ksh50,000 by the government and Endebess camp being disbanded, Margaret and Mary contributed Ksh4,000 each and leased a piece of land at Zea so that they would squat for short period of time before going back to their homes in Tobo since they were still uncertain of the security situation.

During this period, Mary delivered a baby at the camp. The situation at Zea was not conducive to the health of the baby because it was a swampy place and prone to be a breeding site for the mosquitoes hence frequent malarial attacks for the baby. She then decided to move elsewhere to look for a better place where she could settle leaving behind her household goods under the care of Margaret at Zea.

However, upon return to Zea on July 2008, she found out that Margaret had also moved without leaving a trace of where she had headed with Mary’s household goods. Since then, whenever they meet in market, Mary embarrasses Margaret and publicly calls her a thief. Mary justifies this action because she desires to have justice in regards to her household goods and she can only reconcile with Margaret after she returns her household goods.

Margaret on her side acknowledges the account of Mary in regards to the events. She acknowledges to have taken Mary’s household goods but gives a justification that since they both never had mobile phones, it was not possible to trace Mary when she also moved from Zea.

She narrates that when she was also leaving Zea, she left Mary’s goods with their neighbour so that when Mary returns, the neighbour would hand over the goods to Mary because there was no communication whatsoever with Mary. However, the neighbour whom these things were handed over to has never been traced since 2008.

Margaret feels remorseful because this situation has deteriorated the relationship between them and also she has no money to replace the lost items.

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Margaret desires to have peace with her friend and a closure to this dispute because on numerous occasions she has unsuccessfully tried to reconcile with her friend.

After clarifications from both parties, the Adjudicators take Mary and Margaret through a mediation process. The process is effective through adjournments during the hearing so that the bench talks to each party separately and Mary agrees to reconcile with Margaret. They both shake hands as a sign of peace and closure to the dispute. Margaret even invites Mary to her home for dinner.

Esther Majuma (Victim) and Clement Wasike (Offender)

Esther Majuma and Clement Wasike are in-laws and neighbours at Salama “A”. However after 20th January 2008 when the PEV was raging, Esther’s brother was shot dead by unknown assailants making Esther flee to Endebess without salvaging any household property from her home.

She came back home after the situation was calm in March 2008. She found that her house and shop were looted and burnt down. Nothing was left behind. However she recounts that she left at her shop 80 bags maize each weighing 90Kg, 5 metallic window frames, 1 fuel tank of 100litres, and 9 pieces of iron sheets.

Later in 2010, she was told by her neighbours that they saw her in-law, Mr Clement, looting her property at the shop. When she approached Mr Clement, he denied ever looting her shop. Esther maintained that there shall be no peace between them until Mr Clement returns her property.

However during the mediation process, upon numerous clarifications by Adjudicators, Mr Clement reluctantly acknowledges to have taken some goods from Esther’s shop but as an act of salvaging the goods before village looters could come and take them away.

Mr Clement also acknowledges that he only took the 5 window frames, 9 pieces of iron sheets which were already burnt down and the 100litre fuel tank. The maize was already destroyed by the fire. He then took these property to Kimondo, a nearby shopping centre, to his store which he deemed was much safer than Salama.

However, on 23 January 2008, the attackers came back and broke into his shop and looted everything that he had stored there only leaving behind the 100litre fuel tank belonging to Esther. Mr Clement recounts that due to guilt and fear of backlash, he never wanted to confess to Esther that he had taken her property. He wanted the matter to lie low.

Mr Clement confessed that after Esther had been informed that he was seen taking the goods, his relationship with Esther has turned to be one frequented with public embarrassment and hostility towards each other including their families.

In middle of the mediation process facilitated, Mr Clement asks for forgiveness from Esther and even suggests that he be given a timeframe from which he shall pay back the 5 window frames and 9 iron sheets he had taken from Esther. Mr Clement also maintains that the 100litre fuel tank is still with him and he desires to return it back to Esther.

Esther on her part, agrees to reconcile with Mr Clement.

However she asserts that since peace and justice go hand in hand and basing on the fact that Mr Clement is her in-law, she only wants the fuel tank to be returned to her without any compensation for the window frames and the iron sheets. She desires to have the broken relationship with her in-law mended after the hearings.

Mr Clement requests for an adjournment so that he goes home and bring the 100litre fuel tank of which he hands over to Esther in the presence of the AJS team. They both shake hands and share a meal together as a sign of peace.  They both agree that the matter should come to a closure.

Alternative Justice System (AJS)

Kituo Cha Sheria

Kenyan Tea Workers Confront Unilever Tea Kenya Ltd (UTKL) over their Human Rights Record and Alleged Failure to protect the Tea Workers

PRESS RELEASE
KENYAN TEA WORKERS CONFRONT UNILEVER’S CEO OVER HUMAN RIGHTS
RECORD
(Monday, 8th October 2018, Nairobi) – On 29 September 2018, a group of Kenyans who worked and/or lived on a tea plantation belonging to the global consumer goods giant Unilever’s Kenyan subsidiary in 2007, publically confronted Unilever for the first time over its failure to protect them from ethnic violence following the 2007 elections. The victims have reacted angrily to a statement made by the London-based company and have decided to publish their response.
A victims’ committee, consisting of both former and current workers on Unilever’s Kenyan tea plantation in Kericho, in Western Kenya, published an unprecedented open letter to Unilever’s CEO, Paul Polman, challenging many of the claims made in a statement by Unilever’s UK head office on 23 July 2018. In the statement, Unilever rejected allegations that the company had not respected its own human rights policy in relation to attacks on its Kenyan workers.
In a strongly worded letter, the tea workers say they “were shocked” by Unilever’s statement.
“We do not think you have been told the truth and we want you and the public to know the truth,” the victims say in a direct appeal to Mr. Polman. They have decided to publish this letter having consulted with their members. The letter details threats made against workers during election campaign meetings on Unilever’s plantation in 2007. “We knew what these words meant and were frightened by them,” the tea workers say in their letter. “We raised our fears with local management, but they did not listen to us, they did not help us, and when the attackers came, we were left to fend for ourselves. All they said was that we should go and hide in the tea bushes, and that is where many of us were hunted and attacked. No one came to rescue us.”
Kituo Cha Sheria has worked for years with victims of ethnic violence throughout Kenya. In particular, they have documented crimes which were committed in the 2008 post-election violence and have worked with other local and international organisations to seek redress for the victims.

Together with REDRESS, an international NGO, they sought legal advice from Leigh Day, a London based law firm as to whether justice could be sought in the English courts with regard to Unilever’s alleged failure to protect its workers. As a result, Leigh Day represents 218 tea workers who were victims of the violence that followed, including the families of 7 victims who were brutally killed by clubs and machetes and 56 women who were raped, many by multiple attackers and subjected to appalling physical attacks.
In their letter, the tea workers state: “It is not right that Unilever has said that it helped us when we know that it is not true…If it is possible, let us come and talk to you about what happened and how we have been treated. We will tell you the truth…”
They are clear that their wages were deducted for the 6 month period they could not work due to the violence:
“When we fled the estate, we were running for our lives, we could not take our belongings with us and all we left was lost. It was 6 months until we could go back to the estate. During this time, we did not receive a salary. We relied on family, friends or borrowed.”
The workers say they were given little or no assistance or compensation following the attacks, in direct contradiction to Unilever’s statement:
“Unilever says that after the violence every employee was given “compensation in kind” to offset our lost wages and that we were given replacement items or cash to buy new items to replace our stolen property. But those who were too afraid to return got nothing and only some of those who returned were given KES12,000 (a little more than a month’s salary) and a little maize, which was then deducted from our next salary. … Unilever just wanted us to go back to work as if nothing had happened.”
The workers further contradict Unilever’s claim that medical support and counselling were freely available:
“Most of us who were injured paid for and got our treatment within the 6 months that we were away from the estate. Unilever paid nothing for this treatment… When we returned to the estate we were not encouraged to get help. No, we were told that we must not talk about what happened. We were scared that we would be punished if we spoke about the violence. We are still scared that we will be punished.”

Gertrude Angote, the Executive Director of Kituo Cha Sharia, a Kenyan human rights NGO, said: “It is impossible to reconcile Unilever’s public statement with the accounts of the tea workers. Unilever has denied any responsibility and fought this case through the UK courts by hiding behind its corporate structure to avoid dealing with the appalling human rights issues in this case. They have done this in the knowledge that it would not be safe for the victims to bring a case in Kenya. Given that Unilever actively endorses the United Nations Guiding Principles on Business and Human Rights, it is high time that it practices what it preaches.”

In May 2018, the UK Court of Appeal hearing the case brought by Leigh Day on behalf of the tea workers, rejected it on the grounds that there was insufficient evidence (even though this was prior to disclosure) that Unilever PLC was responsible for the alleged crisis management failings of its Kenyan subsidiary. The judges did not address whether the violence had been foreseeable, a key issue raised by the claimants on appeal. On 29 August 2018, the claimants filed an appeal to the UK Supreme Court.

The victims invited Mr. Polman to Kenya to respond to their letter and to discuss their concerns in person. They await his response.
For further information contact:

Gertrude Angote from Kituo Cha Sharia on +254 722 301 482 or angote@kituochasheria.or.ke

Kituo Cha Sheria

We Care for Justice

MORALITY OR HYPOCRISY? PUTTING THE RAFIKI FILM CASE INTO PERSPECTIVE

MORALITY OR HYPOCRISY? PUTTING THE RAFIKI FILM CASE INTO PERSPECTIVE

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness”

The brief facts of the case are that Ms. Wanuri Kahiu, the writer, director and co-producer of Rafiki sued KFCB and its boss Ezekiel Mutua for banning the film Rafiki. This film was banned for promoting lesbianism and homosexuality in Kenya.. Rafiki is a love story about two teenage girls who develop a romantic relationship which is opposed to their community and family. The High Court temporarily lifted the ban to allow the film to be considered for an award at the Oscars. This has however been received with mixed feelings. Mr. Mutua for instance termed the film a tragedy and a shame that cannot define the Kenyan culture.  He insisted that gayism was not Kenya’s way of life.

KCPF which is a Christian organization has also had something to say. They contended that 80% of Kenya’s population is Christian. They further state that it is a matter of family which is defined and protected by the State. In reference to the Constitution, they insist that homosexuality or gayism is illegal.

These submissions can however be contrasted with the reality. As much as Kenya claims to be moral and Christian, the traffic on Rafiki film after the ban was temporarily lifted is amazing. The film has also apparently done so well hence attracting the nomination for the award. This article seeks to find out whether the ban of the film Rafiki is moral or hypocritical?

Morality and the Law

One common definition of morality is principles concerning the distinction of what is right and wrong or bad and good. The: “goodness” or “badness” of behaviour boils down to its acceptability. In other words, morality is something amorphous that is only defined by a people. Law on the other hand is a derivative of political authority. The Law which is enforced by the State is but a command from a sovereign. There are therefore points of convergence and divergence between these two.  Plato, for example, explains the idea of true justice which is closer to morality, as distinguished from justice which is apparently merely dependant on human reason. Law therefore can be moral or even be immoral

There is however need to go back a bit. If morality is this amorphous construct that the society develop. Can a society be wrong on the “rightness” of behaviour? The answer is yes. Societies have been wrong. Slavery and slave trade were immoral yet tolerated. Societies that discriminate on women and persons with disabilities are immoral yet there are few people who recognized so. Is there a morality of one? There is a valid argument to be made on a morality of one based on one’s conscience. This is to say that the society may see behaviour as “bad and an individual see it as “good” and it is still fine

Kenya has a country has a number of normative factors. These include: religion, culture and even the law. In an African society culture plays a big role in determining morality. The irony is what Kenyans refers to as African culture are distinct depending on ethnic group. In addition to these, there are some “moral” African cultures that have been stated to be repugnant to justice and morality. This means that Mr. Mutua holy African culture and the way of life he claims to ascribe to-as he trashes other people- may not stand the test of morality. He need not hide behind African culture so that he can be intolerant to ideas. This is simply foolish and infringes on other people’s rights. As much morality is a subject in this case, it is as subjective as it comes

Role of Religion

Religion has a big role in Kenya’s moral choices. This is however very subjective. The Constitution of Kenya recognizes this and hence article 32. This gives citizens freedom and the right to worship belief and practice religion. It is however important to note that article 32 does not include imposing ones belief or morality to other people. As much as the church as a right to be enjoined in any suit in Kenya, where do they get the right to impose their morality to the public? The wisdom of article 8 of the Constitution of Kenya has the implication that religion is a choice and as a citizen one may decide not to be guided by religion  hence a secular society.

Kenyans have therefore always chosen when to be guided by religion and when not to. The church for instance was against the promulgation of the Constitution (2010) and 65% Of the Kenyan voter, majority Christians went against the church. A huge part of the church has always been against family planning and the use of contraceptives; this too they have relatively lost.  They have always been accused of being part of tribalism and partisan politics in Kenya. Is it therefore hypocritical to say that Kenyans are 80% Christians and they are influenced as so? Or is it a lie the church needs to tell so as to   remain relevant as they did in the 15th century.  Claiming that 80% of Kenyans are Christians and therefore they have a say on issues of family and the protection of it is a classic miss direction. The church in Kenya has very little to say about family. They advocate for monogamy (Hyde v Hyde (1866)) while the law has metamophosized to allow for polygamy, single parent families etc. What moral authority does the church therefore have to kill creativity in the name protection of the family with regards to the rafiki film? It may be wise to let people be.  Those who want to subscribe to the way of Christianity need to be allowed to, those who don’t. Let them be free.

The Law and Human Rights Perspective

As stated in the facts of the case, the point of contention is on family protection and values of the society in Kenya. The Kenya film board has banned the film Rafiki as it promotes lesbianism and homosexuality. This they contend is illegal and immoral. The Constitution of Kenya, article 45 deals with the rights to marry and family. Article 45 (2) of the law prohibits gay marriages. Marriage in Kenya is for persons of opposite sex with consents. Article 45(1) advocate for protection of the family. The Penal Code (cap 63) of the laws of Kenya speaks of unnatural acts Section 163 read together with 164 gives a maximum sentence of 14 years imprisonment for anyone convicted of unnatural acts. This is therefore only possible if one considers gayism unnatural but how does one enforce this?  The Sexual offences Act (Cap 64) does not s however recognize gay activities as asexual offences.

It is therefore clear that gayism is illegal in Kenya. Unlike South Africa, Kenya does not recognize such marriages. Sexual orientation is not in the laws. But what has this got to do with the Rafiki film? The film is a piece of art that perhaps shows the realities of the Kenyan society.  In other words, the fact that gayism is illegal and perhaps immoral in Kenya, does not mean that gay people are not in Kenya.. There may be more people within the scope of LGBT than the Kenyan church or righteous society would like to admit. How does banning films or music films that does not hurt anyone but portray what happens in te society help? The hypocrisy by the KFCB however becomes clear as the board bans Kenyan films yet the same themes are carried by the foreign films that Kenyans still watch. As much as the KFCB may feel that they are preserving culture, they are in fact acting unconstitutionally. The Constitution of Kenya 2010 through article 33 elaborates on the freedom of expression to include freedom of artistic creativity. Article 28 is also quite elaborate on the human dignity and perhaps, human dignity should be respected regardless of sexual orientation

A gifted writer, who decides to give you the soft side of a dictator, should never be condemned for that is the reality of society. There is nothing immoral or illegal about that. It may not be pleasing to everybody, but it is wrong to pretend and clothe intolerance in  the question of morality.

Conclusion

As much as it is clear that Kenya is not ready for the LGBT rights. This does not mean that Kenyans should neither pretend that these people exist in the society nor they don’t matter. Societies gradually change and it is the films and creative art that help to shape conversations. In all these, there is need to have an open mind and stop intolerance in the name of moraliy or religion.

By:

Ouma Kizito Ajuong

Advocate

Is the Finance Act 2018 an Abuse of the Social Contract?

Is the Finance Act 2018 an Abuse of the Social Contract?

While a lot of people may agree with me that Kenya may largely pass for a democracy, few understand democracy as a predicate of a social contract. Democracy is neither an end to itself nor a means to leadership as it is popularly thought of. It is however a way of executing a social contract between the rulers and the ruled. This subject is made relevant by the financial Act, 2018. This is a law which in effect passes down the tax burden to the people of Kenya while disregarding their protests, yet they have very little to do with the debt crisis in the country or the mismanagement of public funds that has caused this. Simply put, it is asking the Kenyan people to pay more, to fund for projects they don’t really need, run a Government that doesn’t care about them and pay debts that they do not know how they came about. This paper therefore delves into the social contact both as a legal and political theory; it analyzes its place in the legal system in Kenya, attempts to interprete the Finance Act 2018 and the debt crisis management with regards to the social contract and finally gives a way out.  

The social contract theory was primarily developed to avoid a state of nature which is famously described by Thomas Hobbes’ five adjectives as a life that is solitary, poor, nasty, brutish and short. It is a life of chaos, characterized by selfishness and might for right. In order for self-preservation and protection and to avoid pain and misery, man must submit to the social contract. This contact consists of two pacts, pactum unionis where people undertake to live together in peace and harmony so as to protect lives and property and pactum subjectionis, where people unite together to pledge to obey the authority and surrender whole or part of their freedom to the authority. The authority in turn guarantees protection of life, property and freedom to certain extent. He is the sovereign and must therefore act or use this authority for the best interest of all the citizens. Is the social contact theory applicable to Kenya?

Kenya is a State with a defined population, area, Government and is sovereign which means that by organization her people seem to have subjected themselves to this contract. The preamble of the Constitution of Kenya manifests elements of pactum unionis where Kenyans undertake to live together as one indivisible sovereign nation, committed to the nurthering, well-being and protection of individuals, the family and communities in the nation. The Constitution of Kenya 2010 further recognizes people’s power as article 1 highlights sovereignty of  the people, article 1 (3) brings in the elements of pactum subjectionis as this power is delegated to the executive, judiciary and parliament. Article 94 (2), gives parliament the role of representing the people. This means that it has to legislate and work for the interest of the people of Kenya. Article 38 which gives Kenyans the right to vote is the ultimate manifestation of the social contract theory in Kenya.

As much as there is no doubt that the people have power and that they cede the power, the question is whether the Government works for the best interest of the people?  Do Members of Parliament always work for the best interest of the people? Does the Executive and the judiciary work for the benefit of the citizens? Do they even realize that the power they exercise belong to the people? There have been fundamental concerns as to whether they can even relate to the problems of the people they lead.  

Kenya is set in a context where the leaders claim to want to fix roads they don’t use, they pretend to be concern of the healthcare system they hardly use, schools their children do not go to and now they want to fix an economy they ruined. While these are blatant abuses of the social contact, none is as strenuous as imposing tax increments to the people of Kenya through the Finance Act, 2018.

The law imposes tax increments in telecommunications services, petroleum products, betting winners, motor vehicle exercise duty, sugar confectioneries, and telephone and internet services. This is done with very minimal participation while ignoring the fact that the most affected people are the poor and economically marginalized. The whole essence of Government is to protect its vulnerable yet the Finance Act, 2018 seems to have the opposite effect. Is there a way out?

When parliament and the Executive in Kenya seem to have betrayed the people and therefore abused both the social contract and the Constitution 2010, there are two ways out of this. Firstly, is using the judicial arm of the Government which also derives power the sovereign will of the people. This may not work as they as they are also part of the system. Secondly is the way provided for by proponents of the social contract theory.

The right to disobey the authority. People need not suffer under an oppress regime, there is no duty to suffer and live from hand to mouth  because those in leadership decide to accumulate debts or  that they made corruption and the misuse of  public resources a way of life.

Disobedience is the true foundation of Liberty -Henry David Thoreau

By:

Ouma Kizito AjuongAdvocate  

A case for mental health awareness as a means to access to justice

Aug 10-IPJDDying to be heard: Mental Illness impairs prisoners’ ability to articulate themselves during self-representation in court.

Our prisons are full of troubled minds…

Mental health care and awareness is deemed a luxury even for free citizens. The situation is especially dire for incarcerated persons. Stone walls and iron bars serve as a deterrent to proper mental health care provision, under the guise of proper retribution for past wrongs/offences.

Mental health conditions represent a different level of need altogether when compared with physical health needs among prisoners.

It is in light of the above that humane treatment of incarcerated persons suffering from mental illness is largely uncharted territory. Diagnosis of such ailments is often by untrained prison staff who more often than not fail to properly identify which mental ailment is suffered and subsequently, which proper treatment should ensue.

Some of the psychiatric conditions suffered by inmates include schizophrenia, bi-polar disorder and last but most commonly depression. This is as reported by some human rights officers that work within Kituo Cha Sheria’s Prison Justice centres.

The presence of mental illness and access to justice do tie in together in several ways. First and foremost, it impairs their (psychiatric cases) ability to articulate themselves during self representation in court. The vulnerability of their mental frame does not allow them to anticipate or prepare well for such instances. Self representation in court requires a degree of self awareness i.e. during cross examination. Therefore one can only imagine the negative effect an afflicted mind offers in such scenarios.

Secondly, the thought process behind taking certain decisions whilst in the trial process is greatly impaired if one suffers psychiatric ailments. Decisions such as which plea to take during arraignment, plea bargaining, the decision to appeal or seek for judicial review become difficult and open to unwarranted external influence. This almost always leads to a negative outcome if such persons are not sufficiently guided.

Thirdly, such conditions generally deteriorate if left neglected and this is certainly what happens during incarceration or remand detainment.

One would say that some of these conditions indeed do develop specifically because of the inmates’ new found condition behind bars.

A key case in point depression– an internal assessment of the new found situation that the now detained inmate finds themselves in often leads to dark depressive feelings such as hopelessness, despair and discontent. Such feelings   often externally manifest themselves through  dangerous behavioural traits  such as attempts at  suicide, aggression towards fellow inmates and all in all reckless behaviour.

Knowing our own minds is difficult even at the best of times. This is more so for those suffering mental /psychiatric conditions. Assembling this insight should then encourage the appreciation of the need to assist marginalised groups of persons such as inmates and remandees- a group of persons for who mental health care is a remote luxury. Given the strong relation between mental health and criminal behavior, the public health system has a great deal to gain from better mental health treatment among inmates, particularly in reducing the costs associated with high recidivism rates.

It is our hope as Kituo Cha Sheria that during this year’s International Prisoners’ Justice Day, mental health will be an issue that is fully appreciated as a need that should be met. It is only on the basis of this realization that mentally/psychiatrically afflicted inmates will be afforded much needed   relief and sufficient care.

Stand in solidarity in support of prisoners’ human rights today!

By:

Samantha Oswago

AGCP-Kituo Cha Sheria

Success Story of Harun G. Mwangi

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An elated Harun Mwangi (centre, in brown coat) receives the Judgement at Kituo Head Office.

Success Story of Harun G. Mwangi

ELC CASE No. 510 of 2012

Harun Mwangi heaved a sigh of relief after receiving a positive judgment from the Environment and Land and Court at Milimani, Nairobi issuing an order of eviction and a permanent injunction barring one Zacharia Karega who grabbed his plot from entering or interfering in any manner with the property that rightfully belongs to him.

The 73 years old, silver haired father of three from Kiambu County claimed that the parcel of land was allocated to him by the defunct City Council of Nairobi on 21st October, 1992 and he took possession but could not commence development due to lack of capital. As a result the ‘stranger’ entered into his land located in Kariobangi South sector VI, Nairobi in 2005, fenced it and put up temporary structures.

His efforts to have the issues resolved amicable using mediation came to naught as Zacharia the “land grabber” turned his back all the time Harun made an effort of reaching him. “I was then forced to look for justice in courts but getting a lawyer was a challenge since I could not afford to pay for the legal fees” said Harun.

Harun got referred to Kituo Cha Sheria by a friend and a close family member who had previously been assisted with labour matters. With a lot of excitement, he narrates how Kituo played a big role in ensuring he got justice.

“I can’t fail to be grateful to Mr. John Mwariri (Kituo Legal Officer), who after explaining my situation to; picked up on this matter. He helped me file this case back in 2012. He has been patient with the whole process that took six years.” In reply to this, Zacharia filed a statement of defense on 4th October 2012 claiming that he has been in possession of the land which he has developed and occupied since 1999.

Mr. Mwariri (Kituo Legal Officer) who was handling the matter filed a reply to defense on 25th February 2013 reinstating that Harun was the owner of the land. The case came for hearing on 21st March 2017. Zacharia did not appear. Harun presented his evidence and closed the case.

Judgement

Hon. Justice Okong’o on 21st June 2018 ruled in favor of our client in the absence of the defendant. He issued an order of eviction against the defendant, his family members, servants or agents, a permanent injunction against the defendant, his family members, servants or agents barring them from entering or interfering in any manner with the plot and that the plot rightfully belongs to Harun Mwangi. The judgment also stated that the defendants has up to 60 days to vacate and handover possession of the plot to Harun failure to which he will be subjected to forceful eviction.

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

By:

RCKM-Kituo Cha Sheria