No Person can be Illegal

wrd

No Person Can Be Illegal

On the eve of the day the world celebrates to mark the World Refugee Day 2018, President Donald Trump of the United States of America was quoted from his briefing at the White House saying “The United States will not be a migrant camp, and it will not be a refugee holding facility.”

These words however appalling and controversial as they sound are the true reflection of how countries for a long period of time have perceived the subject of immigration and refugees.

The narrative has always been, “As a country, we continue to do so much for refugees.” In some worst scenarios, any surge in crime rates or social breakdown is attributed to the existence of refugees in the host country.

One vital question that stands is this, have we ever imagined how much more, given a chance, the refugee would impact on the social and economic developments of the host countries?

The world should move beyond seeing the tag descriptive of a person forced to flee his home due to war, poverty, underdevelopment, environmental degradation, and inequality; and instead focus on the talents and abilities individual refugees posses for the economic and social development of the host country. Before displacements, some refugees were doctors, teachers, scientists, engineers, lawyers, and even people practising art.

Given a chance, the host country would also greatly reduce the burden of hosting the refuges by tapping into the expertise of these displaced persons unlike constricting these persons in camps awaiting aid.

It is important to note that the sharp increase in the outflow of displaced persons is majorly attributed to political feuds. On this particular issue the international community has failed in its responsibility.

UNHCR report indicates that out of 66 million displacements that have happened all over the world, only 500,000 refugees and other displaced persons have returned home. This has been occasioned by persistent absence of security and peace because very few displacement situations have been brought to a definitive conclusion.

It should be each country’s obligation to sustain the protection of the displaced people and refugees while solutions to conflict situations are pursued both within the host country and even in the affected country.

Therefore to achieve a complete reversal of the outflow of refugees, there needs an urgent collective action by the international community to restore security, resolve conflicts and build peace.

#WorldRefugeeDay #WithRefugees #MyNameIsNotARefugee

 

By:

Jack Odiwa, Local Expert-AJS

AGCP-Kituo Cha Sheria

Advertisements

Confronting Double Marginalization: A Brief for Women Living with Disabilities in Kenya

Confronting Double Marginalization

This is a case of strengthening the weak, speaking for the voiceless; lifting the down trodden. It is about seeking a better proportionate society. It is about the values of fairness, equity and equality. As I write to the Courts of public opinion, to policy makers, to Government and today’s intellectuals; I only hope to make a case for these over-burdened and yet forgotten Kenyan population. I must state that I am not seeking sympathy or charity, rather, I  seek to illuminate the subject so much so as to illicit responses from a people who have decided to sit on their conscience and a Government that sees no harm in dragging their feet on matters women living with disability. I therefore hope that by the time I put a full stop to this paper, I will have put forth a convincing argument and offered solutions on how to confront the burden of double marginalization facing women living with disability in Kenya. Through this brief, I therefore seek to define the concept of marginalization, discuss the philosophical angle of the concept and finally look at marginalization through different subjects in the Kenyan society today.

Marginalization is defined as the treatment of a person or a group of people as insignificant or peripheral. Women living with disability are marginalized for reasons of being the “weaker sex” and for being “disabled”. There are a number of reasons advanced for this however, cultural and political reasons stand out. It has been asserted that nature and nurture breed’s power which in turn creates the majority and minority. The political solution for resolving the resultant conflict is affirmative action which unfortunately is seen as a favour rather than a right. There are other theories such as the economic theory of Neoliberalism that attribute marginalization to free market. Women with disabilities are disadvantaged due to inter-alia access and economic capacity. The theory of inclusion also recognizes the differences in the society and the cultural constrains as a result of marginalization.

International law through Article 6 of the Convention on the Rights of Persons with disabilities recognizes that girls and women with disabilities face multiple and intersecting forms of discrimination. The preamble focuses on particular susceptibility that these women have to contend with. They include; violence, abuse, negligence and maltreatment.

The Constitution of Kenya (2010) is based on the values of equity and non-discrimination.

This is a significant improvement from Kenya’s previous Constitution under which a person could not get justice for discrimination on the basis of being a woman, person living with disability or both. The preamble of the Kenyan Constitution (2010) therefore highlights equity as a value of both governance as well as society in Kenya. The same principle is found in Article 10 (b). The Constitution of Kenya (2010) is further particular in Article 20(4) (a) on promotion and protection on the values of equity and equality. This is a qualification of Article 19(3) which gives the rights within the Constitution to individuals rather than the State. The Bill of Rights also recognizes vulnerable groups, therein women with disabilities in Article 21(3) and creates an obligation for the State to protect them.

Another departure from the colonial document is Article 27 that deals with issues of discrimination. It however further goes to specifically admonish discrimination on grounds of gender and disability in Article 27 (4). Affirmative action is a right and obligation of the State as provided for under Article 27 (6). It is meant to ensure that these marginalized groups such as women living with disabilities participate in matters of governance, education, get health services amongst others. Article 56 creates an extra safety net as it classifies minority groups while Articles 27 (4) and (5) demonizes both direct and indirect discrimination. The Parent Act of parliament is also against discrimination and protection of women with disabilities in different aspects of life.

As much as the Constitution of Kenya (2010) is very expansive on disability rights, essential issues such as decent and accessible accommodations are absent. The law is however pretty good. My argument therefore still remains that with regards to women living with disability, these laws have largely remained beautiful words on paper. The next part of this paper is to look through different aspects of their lives which include: civic and political life and participation, education, employment, health and reproductive health services and offences against women living with disabilities in Kenya (physical vulnerability).

Participation of Women with Disabilities in Civic and Political life in Kenya

Participation of women living with disability in civic and political life in Kenya has two main components thus; voting and representation. Article 38 of the Constitution of Kenya (2010) gives these people the right to vote as well as participate in politics.

The electoral management body is therefore under obligation to ensure that women with disabilities, who are Kenyan citizens and of sound minds are facilitated. Although the IEBC has always made an attempt to facilitate this, there is still a lot that needs to be done.

As a commission; the IEBC always tends to ignore women who especially have mobility challenges. It is strange that when conducting census or immunization programs, the concerned institutions are wise enough to be mobile but it is so hard when it comes to the registration of voters and voting itself. This is besides the fact that some of the polling stations are inaccessible.

The Constitution of Kenya (2010) in Article 91 demands of political parties to reflect the face of Kenya. This means that all political parties ought to embrace these women and articulate their issues. As much as most political parties have a population of PwD’s, my concern is with their cosmetic nature. Which of these political parties does disability advocacy? Which political party has presented a policy paper or an implementation framework on disability rights? Which of these political parties keeps disability institutions in check? The answer to all these questions is most likely –none; hence the need for this paper.

Representation of women with disabilities is the other side of the coin. As much as the definition of representation is amorphous, political representation always means three things, advocacy on issues, legislation and implementation. The fight for affirmative action in Kenya by women can be traced back to 1961.  This is when a few women nominated to the Legislative Assembly began the fight for greater women representation. The momentum did not really pick up till the 1990’s; then known as the great awakening. This propelled the international fora such as the Beijing conference in 1995. Through the years issues of gender equality and affirmative actions have been canvassed, however, women with disabilities have always been in the periphery. The Constitution of Kenya, 2010 is concerned about women living with disability in leadership hence reserved seats through nomination as provide for in Articles 97 (1) (c); 98, (1), (a), (b), (c) and 177 (b) (c). This is perhaps an affirmation to the statistics that no woman living with disability has ever been elected to political office. This is attributed to factors like lack of finances, violence and cultural stigma.

The bigger question is whether political representation for women living with disabilities as it is, is working. How many pieces of legislations have been sponsored by these women who have the privilege to represent the others? I am not aware of any woman with disability who is an active advocate of matters like education, health, reproductive health or sexual and gender based violence. There is a big concern that as much as these women are living with disabilities, they may not be in touch with their constituency. I appreciate patience but as Kenya lets systems grow organically, perhaps it’s time to give women living with disability a chance to elect their own leaders as opposed to nominations from political parties.

Barriers to Education for Girls and Women Living with Disability in Kenya 

Women and girls with disabilities in Kenya face a myriad of challenges which result in low numbers of the educated. Statistically, only 41% of girls with disabilities complete primary school, compared to 50% of boys and men with disabilities. The percentages get lower with regards to secondary school and higher education.

Internationally, the UN Convention on the Social, Cultural and Economic Rights recognizes the Right to Education in Article 13. Article 13 (2) prescribes primary, secondary, higher education and fundamental education for all. The convention is further elaborate on development of schools which is fit for women with disabilities. Article 24 of the UN Convention on Person with Disabilities is elaborate on the right to basic education.

This is a means to ensure dignity and a progressive life for PWDs. The State has obligation to ensure that educational institutions are accessible. The law contemplates adjustment of curriculum so as to fit PwDs. The same rights are stated in the Constitution of Kenya 2010. Article 54 (1) (b) gives the right to access educational institutions and facilities that may foster compatibility. The Basic Education Act provides for free and compulsory education in Section 24. It goes further in Section 44 to regulate special needs education which applies to girls and women with disabilities. Section 18 and 19 of the Persons with Disabilities Act also gives the right to education and free education to persons with disabilities.

In spite of these progressive laws, the path towards free compulsory education is still a work in progress. This is because of a number of reasons besides slow implementation of the laws. Women and girls living with disabilities face higher level of poverty. Researchers in this area attribute this to structural inequality in resource distribution. The few of these women who manage to get to higher education have asserted that the grants and loans by Government are still not enough for them to study comfortably. Risk of sexual abuse and violence is another challenge for women and girls with disabilities. This is because they are physically vulnerable. Women and girls living with disabilities are ‘easy prey’. Discrimination is the other challenge. Women with disabilities are discriminated against and stigmatised. There is always a feeling that PwDs and more so women are not capable of grasping academic content or leadership.  A good example is in Kenyatta University where a special seat is created because PwDs are seen as incapable of leadership.

Cultural issues also come to play. There are many who still believe that persons with disabilities are either an embarrassment or a bad omen. This coupled with the patriarchal attitude that a woman has no place in school gives women with disabilities very few chances. Physical access, accommodation and transport are the other challenges. These refer to halls of residence which are inaccessible with no washrooms, classes and hostels with no ramps or elevators, and lack of transport to and from classes. These make education a hard task for these people. Lastly, there is the challenge of lack of equipment. This mostly affects visually impaired persons in the name of braille materials.

The jury is still out on whether to integrate schools or to have specials schools. The pros and cons however keep the debate going; women with disabilities need to be educated. There are children still on the streets and women who are ambitious but have no way to get an education and get ahead in life.

Decent work, Employment and Social Protection for Women with Disabilities in Kenya

According to the Kenya National Survey for Persons with Disabilities the number of persons with disabilities stands at 1.7 million. The rate of disability in Kenya is 4.6% and women take up 19% of this population. This is relatively the number of Kenyans who are not just discriminated against but denied employment and a chance to make a living as women with disabilities have an employment rate of 29% compared to 50% for their male counterparts.

The Constitution of Kenya 2010 in Article 54 (2) provides for affirmative action when dealing with matters employment. The Government has an obligation to ensure that at least 5% of every elective and nominated positions are filled by PWDs. Article 41 is further elaborate on labour rights which also apply to these women. The International Convention on Social Cultural and Economic Rights discusses work and employment as a right which should be granted to citizens without discrimination as stated in Articles 3 and 6. Work and employment for PwDs are also covered under Article 25 of the UN Convention on the Rights of Persons with Disabilities. This instrument enumerates the rights to work to include: inter- alia, prohibition of discrimination, safety and healthy working conditions, just and favourable working conditions, reasonable accommodation and access to labour unions and industrial action.

The Persons Living with Disabilities Act is also very elaborate on employment. It is a domestication of the international instrument. The Act via Section 12 through to 17 touches on aspects of employment for PWD’s. The Employment Act, Occupational Safety Act and the Industrial Relation Act are in consonance with the idea of work and employment of women with disabilities.

Work and employment for women with disability has had an interesting history. For a long time, PwDs have only been known for vocational jobs. As much as the attitude is gradually changing, there are a number of challenges. Accessibility is one of the major challenges that women with disabilities face. As it is with educational institutions, work places are not accessible hence a big problem for employment of these women. The other challenge is the cultural attitude that women living with disability cannot perform certain duties. Studies show that employers are always very delicate with PwDs and avoid giving them tasks that are assumed to be difficult. The other challenge is lack of equipments which mostly affect those with visual impairment. These can be changed through implementation of the law and working progressively.

Health and Reproductive Health for Women with Disabilities in Kenya  

While health may refer to a state of no illness or injury, reproductive health refers to a state of complete mental, physical, emotional and social well-being in relation to maternal condition, sexuality and reproduction. Reproductive health is broad to include; new born babies health, family planning and STIs. Women with disabilities, particularly in developing regions suffer from HIV/AIDS and maternal conditions. Those who are of a reproductive age are at a higher risk of adverse pregnancies compared to women without disabilities.

Women with disabilities are also susceptible to negative health indicators such as obesity, mental distress and asthma. Health and reproductive health are both progressive rights within the law. As the saying goes health is wealth-the Constitution of Kenya, 2010 advocates for the highest attainable standards of health in Article 43 (1) (a). The framers of the constitution were aware of the GDP of Kenya; however, there is need to always be progressive.

The International Convention on Social, Cultural and Economic Rights through Article 12 (2) (a) advocates on reduction of still births. The State has obligation to ensure that both the new borns or mothers are protected and deaths are reduced.

The UN Convention on the Rights of Persons with Disabilities does not directly discuss reproductive health however; Article 25 is broadly dedicated to health which ought to be free and accessible to PWDs. The legal instrument also touches on the right to privacy under Article 22. Health is also a crucial component of the Persons with Disabilities Act as indicated by Section 20 of the Act.

In spite of the law, there are a number of challenges that face women with disabilities in Kenya.  There is a sense of “shame” that comes with women with disabilities.

Many people like to assume that women with disabilities do not engage in sexual intercourse and therefore do not want to engage in these conversations. There is also a bigger challenge when it comes to those women with visual impairment or hearing impairment. This is because most hospitals are not equipped or have personnel who have skills to communicate or understand these people.

These issues are therefore always ignored and swept under the carpet. There is a lot of work that is needed if Kenya was to achieve providing reproductive health rights for women with disability.

Violence against Women and Girls Living with Disabilities in Kenya

Global statistics indicate that women are generally exposed to violence as opposed to the men. Women living with disability carry a bigger burden due to stigmatization and vulnerability due to their disability. The kinds of violence that these women face include; isolation, rape, defilement and forced medical procedures. This is against the subject matter of the Convention on the Elimination of all forms of Violence and Discrimination Against Women (CEDAW). CEDAW may not generally talk about women with disabilities however; there is a general obligation to protect women. The same goes with the other international instrument such as the Convention for the Rights of Persons with Disabilities (CRPD); the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).

The Constitution of Kenya, 2010 and the Sexual Offences Act are also not particular on women living with disability; however, the spirit is to protect women from violence and sexual exploitation.

Conclusion and Recommendations

Through this paper, I have gone through the idea of marginalization of women living with disability. I have delved into the philosophy, the laws and challenges that come with confronting marginalization. I may not be conclusive however, it touches on the main areas of concern and the following are my recommendations:-

  • The concept of mainstreaming the law- women with disabilities touch on different aspects of life hence the need to make sure that there are always specific laws to protect them. The Sexual Offences Act, the Health Act, may be amended to narrow down to sexual violence against women with disabilities and of course impose a bigger penalty.
  • The Constitution of Kenya, (2010) and the Disability Act need to be implemented. The Government through relevant institutions need to develop a plan and statistics.
  • There is also need to do advocacy awareness and advocacy on matters affecting women living with disability in Kenya. This comes from the space that there is always room to improvement.
  • County Governments also ought to take an active role in demanding for these Rights. They are responsible for taking services to the people and hence push the agenda of women living with disability in Kenya.
  • The functions and budgetary allocation of the NationalCouncil for Persons with Disabilities should also be increased to enable decentralization and work. Part of the complaint has always been that the funds are not enough to work on matters women with disabilities.
  • Political parties and international players may also be brought to the fold to ensure that these matters are not just for persons with disabilities but institutionalized.
  • Learning from the best experiences is also another recommendation that may help in advancing the disability agenda. Kenya should be ready to learn from other jurisdictions such as India .

By:

Ouma Kizito Ajuong’

Advocate

Knowing Your Community Land Rights

Opinion Blog

Recognition, Protection and Registration of Community Land Rights

Community land is land which vests in and is held by communities identified on the basis of ethnicity, culture or similar community of interest under the tenure systems of either; (a) customary (b) freehold (c) leasehold (d) or such other tenure system recognized under a written law.

Every person has the right, either individually or in association with others, to acquire and own property of any description in any part of Kenya, in accordance with Article 40 of the Kenyan Constitution.

Customary land rights, including those of community land, have equal force and effect in law with freehold or leasehold rights acquired through allocation, registration or transfer for example, subject to Article 40 (3) of the Constitution and the Land Act, no interest in, or right over community land may be compulsorily acquired by the State except in accordance with the law, for a public purpose, and upon prompt payment of just compensation to the person or persons, in full or by negotiated settlement.

To register a community land, the Cabinet Secretary of Lands, in consultation with the respective county governments, develop and publish in the Gazette a comprehensive adjudication programme to ensure that the process of documenting, mapping and developing of the inventory of community land is transparent, cost effective and participatory with the members of the community.

The person responsible for the registration of community land is the Community Land Registrar.

The process of registering community land involves the Cabinet Secretary of Lands by a notice in the Gazette; appoint an adjudication officer in respect of every community registration unit to facilitate, in consultation with the respective county governments, the recording of community land claims, demarcation of community land and delineation of boundaries. Upon adjudication, the title relating to community land is issued to the registered community by the Community Land Registrar.

Community land maybe held as; communal land; family or clan land; reserve land; and any other category of land recognized under a written law.

Administration and management of community land

A registered community must have a community assembly which shall consist of all adult members of the community. The community assembly shall elect between seven and fifteen members of the community assembly to constitute the community Land Management Committee for the administration and management of the community land.

Any decision of a registered community to dispose of or otherwise alienate community land is binding if it is supported by at least two thirds of the community assembly, while all other decisions of the registered community shall be by a simple majority of the members present in a meeting.

Nature of community land title

Upon registration of a community land, the community is issued with a Certificate of Title which gives the community the absolute ownership of that land together with all rights and privileges attached to the land.

This certificate is considered by courts as factual evidence that the person named as proprietor of the land is the absolute and indefeasible owner

Conversion of community land

A registered community shall, before the conversion of registered community land into either public, private land or any other category of land, seek and obtain approval from two thirds of the community assembly for instance;

  • Community land may be converted to public land by compulsory acquisition; transfer; or surrender.
  • Community land may be converted to private land through transfer; or allocation by the registered community.
  • Public land may be converted to community land by allocation by the National Land Commission in accordance with the Land Act, 2012 (No. 6 of 2012).
  • Private land may be converted to community land by transfer; surrender; operation of the law in relation to illegally acquired community land; or operation of any other written law.

Special rights and entitlements in the community land

A registered community may upon application and with approval of the members of the community assembly, allocate part of its registered community land to a member or a group of members of the community for exclusive use and occupation for such period as the registered community shall determine.

These occupations may include (a) farming areas; (b) settlement areas; (c) community conservation areas; (d) access and rights of way; (e) cultural and religious sites; (f) urban development; or (g) any other purpose as may be determined by the community, county government or national government for the promotion of public interest.

However, an individual entitlement shall not be superior to community title in any way.

Environment and natural resources management

Natural resources found on community land shall be used and managed sustainably and productively; for the benefit of the whole community including future generations; with transparency and accountability; and on the basis of equitable sharing of accruing benefits among the community members.

Settlement of disputes relating to community land

For purposes of settling disputes and conflicts involving community land, registered communities are encouraged to use alternative methods of dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms and internal dispute resolution mechanisms set out in the respective community by-laws.

The methodologies used in dispute resolution over community land include,

  • Mediation
  • Arbitration
  • Judicial proceedings

 

By:

Jack Odiwa, Local Expert-AJS

AGCP-Kituo Cha Sheria

 

Success Story- Mary Runyangi Muchafu

DSC_7466
Mary Runyangi Muchafu receiving her settlement at Kituo Head office, Nairobi.

Mary Runyangi Muchafu is a middle-aged Kenyan woman who came to Nairobi over a decade in pursuit of gainful employment. Mary is an honest and hardworking Kenyan who worked as a domestic worker in the leafy suburb of Lavington, Nairobi while living in Kawangware. The mother of five (5) was contracted on the 22nd November, 2016 and performed her duties with loyalty and diligence until 6th December, 2017 when her employer; one Mariama Sieh unfairly fired her.

Mary was dismissed in the most unfair manner without any notice being given to her or receiving her terminal dues. Lost and confused on how to handle this most unfair predicament; Mary was contemplating taking her school going children back to their rural home as her prospects of supporting them in her current state looked grim.

Fortunately, when she narrated her story to a friend in the neighbourhood who also works as a security guard in the suburbs of Nairobi; there was a glimmer of hope. The friend happened to have received pro bono legal representation from Kituo Cha Sheria in a similar matter previously.

Mary had worked for the entire duration of her employment without leave including during public holidays and was instead met with threats of dismissal any time she requested a day off. Mary instead toiled in the Mariama household taking care of 4 children until the day she was dismissed and now was presenting her matter to a Kituo legal officer. Once her case was reviewed and deemed meritorious; a demand letter was immediately served to her former employer clearly stating the employer’s unjustified actions in four points- salary in lieu of notice; annual leave; service pay and compensation for unfair termination according to Kenya’s labour laws.

The employer did not respond to the demand within the stipulated time and instead rubbished Mary’s claim with more threats and scare tactics that she’d instead end up paying the employer.

Kituo’s legal officers acting on mandatory instructions to institute legal proceedings from the client were ready to proceed to court and had duly served the employer when through their legal counsel they offered to settle the claim out of Court. The offer being acceptable to our client- Mary Runyangi received a full and final settlement of Ksh. 32,000 in April, 2018.

A very thankful Mary who has since found employment elsewhere was grateful to all Kituo officers who assisted her in her pursuit of justice saying, “Nimesaidika! Asanteni sana”, she said.

RCKM

Kituo Cha Sheria

Success Story- Njoki Nguga

succes-storyKibera Community Justice Center

Serving the most vulnerable persons in the society…

Njoki Nguga, a 67 years old granny from Kibra, Nairobi has a reason to smile after her name got approved as a beneficiary of the Kenyan government’s monthly stipend funds for the elderly.

Njoki, a widow who is staying with two orphaned grandchildren, spends sleepless nights trying to provide for the kids who are all in school. She said for several years she has not benefited from the funds despite her attaining and even surpassing the recommended age (65).  Her National Identification Card had an error, indicating that she was born in 1952 reducing her age by two years by the time she attained 65 years the recommended age for benefiting from older person’s funds, a programme run by the Ministry of Gender, Children and Social Development in Kenya. The ministry had failed to enroll her because of this.

Njoki said she was referred to the Kibera Community Justice Centre by a friend who had once gotten assistance at the justice centre. She approached the justice center seeking legal advice regarding her problem. She specifically wanted the paralegals assist her correct the error that has made her miss the monthly stipend that she ought to be getting.

“I had made several attempts to government offices including the DC’s and the Chief’s offices but my efforts bore no fruits. I therefore decided to seek for assistance from the justice center as advised by a friend”, said Njoki.

Ezekiel Njenga, certified Paralegal at Kibera Community Justice Center intervened. He advised the client to first go for age assessment at Mbagathi Hospital and wrote a letter addressed to the relevant institution on behalf of the client recommending for change in the year of birth in the client’s national Identification Card (ID).

The requested process was successful and the client was issued with a new ID card and is currently registered and earning the stipend for the elderly thanks to the work of the community paralegal.

RCKM

Kituo Cha Sheria

 

Reparations NOW: Highlighting the Right to Truth

truth reparations 1

Reparations NOW: Highlighting the Right to Truth

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

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

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

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

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

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

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

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

Implement the reparations fund…

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

Faith Ochieng’

Program Manager

AGCP- Kituo Cha Sheria.

 

Know your Labour Rights Vlogs Series

Are you employed or looking for employment? Then this is for you!

All you need to know about your labour rights!

You may watch your labour rights explained Haki Vlogs Series HERE>>

Termination of Labour

https://www.youtube.com/watch?v=n0EPwe3csqg

https://www.youtube.com/watch?v=l5ptiNo_DzU

  • An employer is required to give reason of termination to the worker. If the employer fails to do this, the termination will be considered unfair.
  • Before terminating the employment of an employee or summarily dismissing an employee, the employer should hear and consider any explanations or reasons which the employee may give.

Reasons for Termination

For specific reasons

  • The employee is incapable of performing the job
  •  After receiving a final warning letter, the employee continues with misconduct or indiscipline
  • The employee suffers from prolonged illness that makes him/her unable to perform his/her normal duties

Summary Dismissal

An employee may be summarily dismissed for gross misconduct. Gross misconduct includes:

  • Absence from the workplace without permission
  • Being drunk at the workplace
  • Neglecting to perform any assigned work
  • Use of abusive language or behaviour in the workplace
  • Failing to obey a lawful and proper command that is within the employee’s scope of work
  • Arrested for a crime that can lands the employee in jail and is not released within 14 days
  • Committing a criminal offense against the employer or his/her property
  • Summary dismissal takes place without a termination notice. It is immediate.

Redundancy

  • This means the loss of employment where the services of an employee are no longer needed
  • Before declaring an employee redundant, the employer must meet the following conditions:

The employer must notify the trade union if the employee belongs to one and the labour office in that area. In the notification, which is given one month before, the employer must include the reasons for the redundancy.

If the employee is not a member of a trade union, the employer notifies the employee personally in writing and the labour officer;

Before declaring an employee redundant, the employer has to consider the work experience, ability, job group and reliability of the employee

  • The employer should give the employee one month notice or one month’s salary in place of notice
  • The employer should pay for the remaining leave days in cash
  • The employer should pay the employee severance pay of 15 days salary for every year worked

Termination Notice

If you are paid daily – either the employer or the employee can terminate the contract at the end of any day without notice.

If you are paid periodically at intervals less than a month e.g every 2 weeks or 3 weeks – either the employer or employee can terminate the contract by giving notice in writing equivalent to the intervals of payment. So if you are paid every 2 weeks, give a 2 week notice in writing of termination of employment.

If you are paid at intervals of one month or exceeding one month – either the employer or employee can give a 28-day notice in writing of termination of employment.

However, if you have a contract that clearly states when your services end or the period needed to give a termination notice for your contract – then you should follow what your contract states.

If an employee who receives notice of termination is not able to understand the notice, the employer should orally explain the notice to the employee in a language the employee understands. The employee should have another employee or union representative of his/her choice present during this explanation.

If an employee or employer terminates a contract without notice, then the following happens:

  • Employer- must pay the employee what he/she would have earned during the notice period. e.g. If you are fired without notice, your employer must pay you one month full salary
  • Employee- if you decide to end your contract without giving notice to your employer – then you will pay your employer what he/she would have paid you during the notice period. e.g. If you leave without notice, you must pay your employer one month full salary

Grievance Procedure and Institutions to approach

https://www.youtube.com/watch?v=3q6Ng9t2A9M

  • If an employee is not a member of a trade union, he/she should present their complaint or grievance to the immediate supervisor.
  • If there is no action taken, the employee should set an appointment with management.
  • If the matter remains unresolved, then the employee should file a complaint at the nearest labour office.
  • However sometimes the employee is forced to go straight to the labour office or the Industrial Court.
  • If an employee has been dismissed unfairly, he /she should present a complaint to a labour office within 3 months of the date of dismissal.
  • The labour officer will give an opportunity to both the employer and employee to give their side of the story and give recommendations on how to settle the dispute.
  • The employee also has a right to go to the Industrial Court to present his complaint. If the complaint is because of a contractual agreement, the complaint should be filed in court within 6 years. If it is because of injury at work, then the complaint should be filed within 3 years.
  • The employee must be able to show that he/she was unfairly terminated and the employer must be able to show the justification for termination.
  • An employee under probation or who has been summarily dismissed while under probation cannot complain at the labour office or at the Industrial Court.

NOTE: At the Industrial Court you do not need an advocate to represent you.  You can be represented by a trade union representative or you can appear in person ( self-represent). You can also hire an advocate if you want.

Remedies for wrongful dismissal and unfair termination

  • Where there was no notice given, the employee is entitled to the salary he/she would have earned had he/she been given notice
  • Where an employee is dismissed before the contract is over and the contract was such that the employee gets paid at the end of the contract and after completing his/her services, the employee is entitled to:-
  1. payment for work done until the time he/she was dismissed
  2. payment for losses incurred as a result of the dismissal
  • payment for losses arising between the date of dismissal and the date of expiry of the notice period
  1. money he/she would have earned had notice been given

Where an employee is unfairly dismissed, he/she may:

  1. be reinstated and continues to work like as if he/she was never dismissed
  2. not be returned to his/her original position but may be given similar or suitable work and be paid the same wages (re-engaged)

Before any recommendations are given, the labour officer or Industrial Court consider the following:

  • the wishes of the employee
  • the circumstances in which the termination took place, including if the employee caused or contributed to the termination
  • if it is practical for the employee to be reinstated or re-engaged
  • the employee’s length of service with the employer
  • the reasonable expectation of the employee as to the length of time for which his/her employment might have continued had he or she not been terminated.
  • the opportunities available to the employee for securing similar or suitable employment with another employer
  • the value of any severance payable by law
  • the right of the employee to claim for any unpaid wages or expenses
  • any expenses reasonably incurred by the employee as a consequence of the termination
  • any conduct of the employee which to any extent caused or contributed to the termination
  •  any compensation, including ex gratia payment paid by the employer and received by the employee.

Sexual Harassment

https://www.youtube.com/watch?v=1wHdBmnGdXU

An employee is sexually harassed if the employer or a representative of that employer or a co-worker:-

(a) directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity.

The sexual request may contain:

  • promise of preferential treatment in employment e.g if you have sex with me, I will give you a promotion
  • Threat of harmful or negative treatment in employment e.g if you do not let me touch your buttocks, I will ensure that you do not go on leave or I will make your life here a living hell
  • Threat about the present or future employment status of the employee e.g if you do not kiss me now, I will fire you
  • uses language whether written or spoken of a sexual nature
  • shows physical behaviour of a sexual nature that is unwelcome or offensive and which affects employment, job performance or job satisfaction.

An employer who employs twenty or more employees should have a sexual harassment policy at the workplace.

Sexual Harassment Policy

This Policy will contain:

  • Definition of sexual Harassment
  • A statement explaining that;
  • every employee is entitled to employment that is free of sexual harassment
  • the employer shall take steps to ensure that no employee is subjected to sexual harassment;
  • the employer shall take disciplinary measures against any person guilty of sexual harassment
  • how complaints of sexual harassment may be brought to the attention of the employer
  • the employer will not disclose the name of the complainant or the circumstances related to the complaint except during investigations or if the employee wants to take disciplinary action

Judgement

Anyone found guilty of sexual harassment will be imprisonment for not less than three years or will have to pay a fine of not less than one hundred thousand shillings or both imprisonment and payment of a fine.

For more information on your labour rights write to info@kituochasheria.or.ke mhaki@kituochasheria.or.ke or SMS 0700777333

Kituo cha Sheria

We Care for Justice