Discerning the Concept of Political Representation of Persons with Disabilities (PWDs) in Kenya

law opinion

The Constitution of Kenya (2010) carried with it an aspect of novelty; this is because the document represented a radical shift from the past. The Constitution not only designed a people-friendly governance structure but also brought on board a very robust human rights chapter. This chapter deliberately characterized by social, political and economic rights for women, youths the marginalized- and of interest to this paper- persons living with disabilities (PWDs).

Close to over a decade now, the world has been reverberating about the idea of disability rights culminating in political representation as the ultimate solution. After all, political representation is about making citizens’ voices, opinions, and perspectives “present” in the public policy making processes.

This article however, is concerned with three things: first, defining the concept of political representation for PwDs. Second, analyzing political representation for persons with disabilities as provided for in the law and lastly, looking at how well this has worked in Kenya.

What is political representation? The Concept of political representation has been a subject of social and philosophical discourse for decades. The origins of this traced to the likes of John Locke and Jean Jacques Rossue, spreading their wings to the modern day scholars such as Hanna Pitkins, and Nadia Urbinati. Interestingly, none of these scholars claims to have a conclusive definition of political representation. They however, agree on the components springing from what is called the simplest definition thus, an activity of making citizens views, opinions, present in a public policy or law and advocating, symbolizing and acting on behalf of others in a political arena. What about persons with disabilities? Con-temporarily speaking, Uganda like Kenya is now in the process of amending their electoral process to reserve political seats for PWDs. This is to ensure that they have a voice and take part in building the country. This is a requirement of international law that has been adopted by many other countries but how best it works is the point of discourse.

How does political representation for PwDs Kenya look like? The Constitution of Kenya (2010) recognizes representation of persons with disabilities as an integral part of Kenya. The preamble states that as the people of Kenya, we are committed to nurturing and protecting the well-being of individuals, families and communities hence perhaps affirmative action to ensure representation in the political arena. The idea of representation is strengthened by the national values and principles of governance stating inter alia human dignity, equity and inclusiveness and protection of the marginalized. Further, the principles of electoral mention fair representation of persons with disabilities as a key component.

Away from the principles, the Constitution of Kenya (2010) provides for a formula that guarantees representation of PwDs. The law provides for reservation of seats through political parties nominations. This means, out of the twelve members nominated by parliamentary political, there ought to be a member representing PwDs. Article 98 of the Constitution of Kenya 2010 also provides for the nomination of a man and a woman to representing PwDs. There is also an elaborate formula with regards to representation in the county governments. Article 177 of the Constitution of Kenya 2010 provides for representation for the marginalized youth and PwDs in the county assembly

Having seen the law, the last part of this paper looks at the practicality of the issues. Kenya is just about to finish the first electoral cycle under the new supreme law, prompting a need to take stock. Can we therefore say that political representation for PwDs has been successful? Are there gains to be counted? Is it “true representation” or is it a fallacy? Time always attracts evolution and change and therefore, it is inevitable that in the last five years we have had gains in respect to the lives of PwDs. However, it falls shot of true representation in light of the aspiration of Article 54 of the Constitution of Kenya 2010.

The law requires access and facilitation in educational institution, reasonable access to all places, access of device material, 5% of appointive position to be for persons with disabilities among others. All these remain as aspirations and dreams with nothing to show for political representations. The lives of persons with disabilities are still in shambles with the advocacy work left for Non-Governmental Organizations despite having representation from all the legislative houses in the country. Political representation for PwDs is a fallacy-not true representation that requires change as we move to the next electoral cycle.

There are three things that can be done; first political parties need to create structures not only to promote disability awareness but to promote rights of PwDs. Second, the parties that nominate these members should hold them accountable, ensuring they deliver on their mandate and lastly, PwDs in Kenya need to take charge and demand real political representation.

By:-

Ouma Kizito Ajuong’

Lawyer and writer at Poetic Fountainhttps://poeticfountain.wordpress.com/

 

 

Success Story of Alex Mmera Mwalati

succes-story

Alex Mmera Mwalati from Kakamega worked as a radio producer at Sauti Ya Rehema (Sayare RTVN) for seven years until October 2015 when he voluntarily chose to resign and pursue other things. He duly followed the process required in terminating one’s employment by giving a notice period and diligently completing his tasks as he‘d always done.

At the end of the working relationship with Sayare RVTN,  Mmera requested payment of his outstanding arrears something which he got verbal commitments from the network management but which was not forthcoming. After several unfruitful attempts to get his dues, he decided to seek legal assistance. He approached the Milimani Commercial Court in Nairobi. “The Courts are where justice resides”, he said. At the Commercial Court he was directed to Kituo Cha Sheria for further assistance. He walked through the gate at Kituo Cha Sheria, an organization he’d heard about but never interacted with before, in April 2016. Mmera was registered as a new Kituo client and given legal advice on the actions he needed to take to get his arrears.  This was done before he was given another date to come and see a lawyer with all the relevant documents.

On 25th May, 2016 Mr. Mmera presented all the relevant documents (appointment letter, resignation letter and bank statements) necessary for his claim to Ms. Christine Obiero, a Kituo lawyer who advised the client, drafted demand letters and pleadings in pursuit of his claim. The employer remained non-committal to all communication from our client until the matter was filed in Nakuru-the nearest labour court to where Mmera was working. On being served the employer finally acknowledged the employee status of Mr. Mmera and the amount owed in arrears. After negotiations an agreement was put in place giving the formula of payment with Mmera receiving a cheque of Ksh. 138,000-the first installment in September 2016. The employer is expected to clear the balance by December 2016.

A beaming Mmera received the cheque as reward for his labour and persistence in pursuing his rights; he urges people to follow-up their issues where they feel deprived but as a good journalist warns that patience is key. He remains grateful to the team at Kituo for their work in giving hope to the poor and marginalized that they too have rights safeguarded in law that deserve to be pursued.

RCKM-Kituo cha Sheria

We Care for Justice

Discussing the Right to Education in Kenya

class-1

Playing Football without Goal Posts?

Discussing the Right to Education in Kenya

 What if FIFA were suddenly to take away goal posts from the game of football? What would it mean? Players engaged in a kick-about, without a target? What about the fans? Would they have anything to cheer for? Maybe the moves, but without goals most certainly the game will lose all its allure. I am sure you already see difficulty in working without a target or rather being in a system without eventuality.

This article seeks to talk to the right to education with the legal and social prisms in mind. Can we therefore say that the right to education in Kenya carries with it fruits or is it an empty right? With the year coming to a close, many will be excited because of one graduation or the other, moving from one class to another, one grade to another but to what eventuality? Can we equate this to progress? Can we measure this and say that the children have learnt and developed or is it just about passing examinations. What about those who graduate? Do they really have the required skill? I bet that even for the many that have skills, all they are given by the Universities is not the power to go and read as proclaimed but the power to gamble with their lives and wait for fate to place them somewhere. Answers to all these questions however, may lead you to one simple conclusion; we are playing football without goal post, but perhaps I am yet to convince you, so what does the right to education mean?

United Nations Children’s Fund (UNICEF) document A human Rights- based approach to education for all defines the right to education as one that is not only recognized by many treaties as an important right, but one that is pivotal to  development and social transformation in a society. In addition to these, the right to education also deals with individual personality growth and development. The nine (9) International instruments touching on education give it an amorphous look and an interactive sphere with other concepts of human rights, these include; best interest of a child, right to dignity, right to socialize, right to participate, equity, equality and social economic development.

The Constitution of Kenya (2010) read with the relevant Acts of parliament also support this narrative. In other words, the law contemplates a system that is not only progressive but one set out for social transformation, something we can’t really say about our glorious 8-4-4 education system. I tend to see this internationally proclaimed right as a toothless dog given that our policies and systems have largely remained archaic, ineffective and mostly corrupt. Pause for a minute and think about it; Kenya’s Education Cabinet Secretary-Fred Matiang’i has been a busy man this year. From changing the school calendar, issuing a number of threats and disciplinary actions while at the same time playing ostrich. It is an open secret that on matters of integrity and examination irregularities in this country, the door will always open and close with the examination bodies and if not cleaned up, the CS will be in for a rude shock comes January 2017. He may as well have been playing football without goal posts all along.

Away from this, I also feel that it is important to discuss the social implications of our education system. How much creativity and adaptability does it give a child? Why take chemistry as a compulsory subject and spend four years with it knowing full well that I intend to be a lawyer? And why append 16 years of study only to come out and feel wasted? A lot of football without goal posts is going on at the ministry of education and if we are not careful they will help in turning the children of this country into academic zombies.

The other aspect that we cannot ignore is the cost of education. Why have the right in statutes and books of law yet we know that as much as 60% of the population of Kenya cannot afford basic education. Today we have high schools where parents have to part with as much as 100,000 shilling, not to mention the commercialization aspect in our universities.

Clearly, we have to make things right. There is a need to re think the whole idea of education in Kenya. This includes the system, available options all the way down to practicality and alignment to the job requirements and the cost of education.  If we don’t do that we are bound to perish and render the right to education useless.

By:-

Ouma Kizito Ajuong’

Lawyer and writer at Poetic Fountainhttps://poeticfountain.wordpress.com/

 

A message from the Mental Health and Psychosocial Support working group in Nairobi

world-mental-health-day

October 10 is World Mental Health Day and this year the theme is ‘psychological first aid’ (PFA). Kituo cha Sheria through our Forced Migration Programme(FMP) is part of the Mental Health and Psychosocial Support working group and we want to ask ourselves what support we can offer to those in distress.

Crisis events involving exposure to trauma and sudden loss occur in all communities of the world. Working with the refugee community provides a unique opportunity for offering assistance. Unlike the host community, who may have various options and support systems to run to, the situation is different for refugees. Refugees have to deal with the trauma that caused their flight as well as the stress of everyday living in the country of asylum, where they have little social support. Upon arrival, refugees hope for a new beginning, help and a place to settle down.

However, with the changes currently happening in the sector, here in Kenya, anxiety and confusion have overwhelmed them again. The ongoing repatriation process at Dadaab refugee camp and the disbandment of the Department of Refugee Affairs have had adverse effects on the refugees.

As we celebrate the World Mental Health Day, psychological first aid can help reduce psychological distress among refugees. PFA means that everyone has a role to play. Using its three principles of “look, listen and link”, anyone who comes to contact with refugees can actually offer support.

PFA ensures that refugees receive basic support and that those who need further care are referred to specialized services. Refugees who suffer from psychological distress and mental disorders can benefit from receiving PFA from professionals and the general public as well.

Therefore, there is room for you and I to make a difference.

Kituo cha Sheria

We Care for Justice

 

Kamukunji residents receive free legal advice

mo-kamukunjiA three day legal aid activity in Kamukunji organized by Kituo Cha Sheria ended on 15th September, 2016 at Muyuyu, Eastleigh Third Avenue where over 110 clients were attended to by Kituo lawyer Maureen Thuo and Paralegals from the Kamukunji Community Justice Centre.

Previously Legal Aid clinics were held at Kiambui, PAG church which saw 110 clients attended to and at the Assistant Chief’s camp, opposite California Police station in California ward where over 60 clients were attended to. A total of over 280 clients, drawn from various parts of Kamukunji Sub County were attended to during the entire three – part legal aid clinic activity.

Addressing the participants yesterday, Airbase Location chief, Minicah Hamisi Otieno welcomed and appreciated the initiative by Kituo Cha Sheria, coming to the grassroots and helping community members. She encouraged residents to feel free to present their legal questions or problems saying that the lawyer and paralegals present could help and save them a great deal since the services were free.

Kamukunji Community Justice Centre Cordinator, Ezekiel Njenga thanked Kituo staff who participated in the activities and paralegals from the centre for having contributed greatly to the success of the activity. “We started on a little bit low note in Kiambiu but I am happy we are finishing on a high note here at Muyuyu, Eastleigh. Throughout the process, we have learnt various lessons and we have room for improvement next time,” he said
.
Nuria Abdi, a resident at Muyuyu, Eastleigh confirmed that residents in the area have got many problems that require legal help/advice. According to her, family and marital problems were top on the list affecting residents (including her) in the area.

“We hope that the intervention by Kituo will at least see us breathe a sigh of relief and hope for tangible legal help since our efforts to local authorities and even the police have proved futile,” she said. She remembers her husband leaving her in April this year for another woman within the same locality. The husband, whom she identified as Abdikadir chased her away with their three young children from the house claiming that Nuria had continually given birth to girls whereas he wished to have boys.

Since then, Nuria, who is currently pregnant, has been living in abject poverty with her three children. She says getting the daily food is a hurdle, leave alone school fees for her children.
Nuria compares the life she and her children are living to that of an asylum seeker. She says many more women experience the same problem in the area and it is their hope that the intervention of Kituo Cha Sheria will offer a ray of hope in salvaging them and restoring, dignity and womanhood to them. The CRADLE-The Children’s Foundation joined Kituo at Muyuyu, Eastleigh to deal with children rights matters.

Kituo Cha Sheria.

We Care for Justice

Bringing ‘Haki Mkononi’ to Mombasa

msaroundup

On 6th and 7th September, 2016 Kituo conducted training on M-Haki for volunteer advocates and community paralegals from the Coast region. The advocates were drawn from Malindi and Mombasa and paralegals from our justice centres in Lamukhani, Kwale County and Kisauni in Mombasa.

The successful trainings were held at the Bliss Resort in Mombasa and are meant to introduce our key stakeholders to M-Haki as Kituo cha Sheria is piloting the M-Haki platform to promote access to justice through which Kenyans can access legal aid through mobile phones, using the number 0700 777 333. M-Haki seeks to reduce the time and distance taken to access legal advice-Haki Mkononi!

The M-Haki message in the region was also taken to the people in the region on Baraka FM ahead of upcoming community outreach forums.

We Care for Justice.

RCKM.

Kituo Cha Sheria.

 

Kituo Cha Sheria Celebrates Anne Orindi – a Grassroots Justice Champion

IMG-201609QQQ2

“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.

Kituo in Kisumu

KituoKisumu

During the week of 22nd -26th August 2016 Kituo Cha Sheria was in Kisumu County for a series of activities. Through the support of the Netherlands Embassy in Nairobi Kituo conducted M-Haki market research and awareness, trained volunteer advocates in Kisumu and visited the Kodiaga Prison Justice Centre.

The Kisumu Region Community M-Haki piloting sessions and market research were held on 23rd August and 26th August in CREP Programme Centre in Awasi and the Manyatta Community Social Centre (Kosawo Hall) in Kondele respectively. The sessions held in Nyando and Kisumu introduced members of the public in the region to the M-Haki platform and will serve Kituo in gathering information on the situational analysis of legal justice in the region.

On 25th August at the Le Savannah Country Lodge in Kisumu; Kituo had the opportunity to engage about 20 volunteer advocates from the area on the M-Haki platform as well as getting their views on matters access to justice in the region.

On the 24th August 2016, the Dutch embassy officials and Kituo members of staff visited the Kodiaga Prison Justice Center to check on the center’s progress, get progress updates from the center as well as note the challenges that the center may be experiencing one year after its launch. The prison centre is run by trained prison paralegals that have filed 185 petitions of appeal and managed 38 acquittals within the year from within prison. The few noted challenges will be addressed for smooth running of the center.

Other successful outreach activities included 3 radio talk shows across the week meant to create further awareness on the M-Haki platform and the realization of an increased number of people using the service. The successful radio programs were conducted at Urban Radio 90.7 FM in Kisumu and Radio Nam Lolwe.

Kituo cha Sheria

We Care for Justice.

Kituo in Kisumu

KituoKisumuM-Haki Kisumu County (Kisumu, Nyando, Awasi) Market Research, K’odiaga Justice Centre Visit and Volunteer Advocates Training.

Starting on the 22nd to the 26th August, 2016 Kituo Cha Sheria and The Royal Dutch Embassy in Kenya shall be in Kisumu County (Kisumu, Nyando, Awasi) for various activities. The week-long activities include market research and community outreach on M-Haki, visit to the K’odiaga Justice Centre and a volunteer advocates’ training in Kisumu. Also scheduled are radio sessions on Urban Radio 90.7 and Radio Nam Lolwe to augment the legal empowerment message in the region.

Some inmates are behind bars because they cannot afford advocates-, do not know how to represent themselves and are intimidated by the Courts. A fact finding mission conducted by Kituo advocates in 2015 revealed that K’odiaga had more remandees than any other prison.

On the 27th of July –  5th of August , 2015 Kituo cha Sheria, in partnership with ICJ-K, Kenya National Commission on Human Rights Haki Mashinani and LRF  empowered prisoners and prison warders at the Kisumu Main Prison(K’odiaga) on the criminal trial process and self-representation  so that they can in turn offer legal aid services to the wider K’odiaga prison community. Access to justice is a right guaranteed for all in the Constitution.

One year later Kituo makes a follow-up trip to K’odiaga to see the progress made by the prison justice center and see legal empowerment in motion. The prison community got legal empowerment on how to conduct self-representation in court, how to adduce evidence if any, how to cross examine witnesses, how to write their submissions, how to make mitigation statements, how to make interim applications such as those for bond, bail, certificates, how to request for documents and how to lodge a complaint against judicial officers.

The prison officers were educated and capacity built on the Constitution, laws governing prisons and general administration of justice. They were also trained on how to draft pleadings to enable them assist the inmates, those on remand or in custody.

Kituo cha Sheria.

We Care for Justice

Kituo Cha Sheria Launches the Meru G.K. Prison Justice Center

MERU1Kituo Cha Sheria welcomed the Meru Main GK Prison Justice Center to the family of legal empowerment centers on the 10th August, 2016. The Center was launched after a paralegal training on Criminal law and procedures was conducted from the 1st to 9th of August 2016 at the Prison facility.

August 10 is the International Prisoners Justice Day and this year the day was marked under the theme of Access to Justice toward decongestion of prisons. One of the goals of Kituo’s prison paralegal trainings is to decongest correctional facilities by empowering the prisoners and remandees on self-representation in court, how to adduce evidence if any, how to cross examine witnesses, how to write their submissions, how to make mitigation statements, how to make interim applications such as those for bond, bail and making applications for Community Service Order.

The following topics covered were; Basics of Paralegalism, Introduction to Human Rights, Bill of Rights (Chapter 4 of Constitution), Criminal Procedure Code Chapter 75 Laws of Kenya, Powers of Court, Provisions relating to all Criminal investigations, Mode of taking and recording Evidence in Trials, Procedures in Trials before a Subordinate Court and High Court, Sentences and Executions, Appeals, Self representation (Criminal Approach), Power of Mercy Act, The Prisons Act and Community Service Order.

The training was conducted by Kituo lawyers Maureen Thuo and Ashioya Biko together with Kituo Volunteer Advocates within Meru. The training on Community Service Order was an important session as the inmates were taken through the process of applying for a community service as it presents some inmates with the option of serving from outside hence decongesting the prison. The newly acquired knowledge on the Bail and Bond Guidelines was equally important in the process of decongestion. Giving inmates the tools to represent themselves in legal matters will increase access to justice and also empowers inmates to challenge situations of injustice and abuse of certain rights inside the prison.

Bringing prison constables on board was also important in creating awareness on inmate’s rights and their obligations to ensure the rights of the inmates are protected as well as offer oversight in ensuring that prison paralegals work with the officers and raise awareness about the activities of the paralegals in prison.

The eventful ceremony was witnessed by representatives from partner organizations and agencies including the Kenya Prisons Service, Kenya National Commission on Human Rights (KNCHR), CEFA, EU, Legal Resources Foundation (LRF), ICJ-Kenya, Haki Mashinani and Embassy of the Netherlands.

A total of 37 participants were trained, 30 of whom were inmates and 7 prison constables. The inmates comprised of those on long sentences, pre-trial detainees charged with capital offences as well as the condemned. Kituo urges the trained paralegals from Meru to work hard and use skills they have acquired to benefit themselves and fellow inmates.

Kituo Cha Sheria

We Care for Justice