Securing the rights of Internally Displaced Persons through the IDP Act

IDP-ACT-BOOKLET-COVER

The resultant skirmishes of the 2007 disputed presidential elections in Kenya, popularly the 2007/2008 Post Election Violence (PEV) – had a devastating effect to the citizens of Kenya. The period went down to the Kenyan history as having the largest internal displacement of its population. This was majorly fuelled by the tribal and ethnic polarization which has over time determined the political direction of Kenya. It was coupled with the struggle and fight for resources, especially land. The Habitat for Humanity- Kenya puts the number of displaced persons to be 630,000. Whereas after displacement some remained in camps, others chose to integrate with communities.

The Internally Displaced Persons (IDPs) continue to face a lot of challenges. These include; deplorable living conditions, health problems, and lack of compensation for lost property and livelihoods. Despite the government’s efforts to look into these issues, IDPs, human rights organizations and the international community have raised concerns on lack of transparency and corruption in the IDP profiling and resettlement process. Further, peace and reconciliation efforts across the country have been inadequate. In addition, integrated IDPs and persons displaced by flooding, evictions, resource-based conflicts and ethnic clashes in 1992 and 1997 have largely been ignored by the State.

Despite a cry from the IDPs and recommendations from various sectors to the Government to undertake an inclusive and public IDP re-vetting exercise, to provide and support all integrated IDPs, to extend IDP resettlement programme to include historical IDPs and squatters, to accelerate payment of monies to remaining IDPs and fast track the adoption of the National IDP policy and legal framework, less has been done. Often, an inadequate financial resource has been forwarded as the reason for inaction.

It is on this note that Kituo Cha Sheria embarked on empowering the IDPs to realize their rights through the provided legal provisions and mechanisms. One such law is the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities Act, 2012 (IDP Act 2012). This legislation provides for the definition of IDPs and the guiding principles of prevention, protection and assistance. It also stipulates duties and responsibilities of both levels of governments owed to the IDPs among others.

The simplified and translated booklet of the IDP Act, 2012 will be insightful to both the IDPs, both levels of Government and stakeholders to the realization of justice for IDPs. For more information on the IDP Act ( Swahili and English Versions) click on this link: http://kituochasheria.or.ke/gallery/publications/english-publications/

Kituo Cha Sheria.

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PROTECTING CONSUMER RIGHTS: KITUO CHA SHERIA SUES EQUITY BANK

 

Courtesy
Courtesy

Thin Sim Technology
Thin SIM technology entails overlaying the Equity Bank Sim card on a pre-existing one belonging to another firm and using it for phone services.

Equity Bank introduced the paper- thin SIM card to help its customers access the bank’s mobile money service without needing to use dual – SIM phones. The SIM cards consist of 0.1 millimeter thick film that can be layered on an active side of customers’ original SIM cards, without affecting the customers’ original service providers’ network reception. If called on an Equity line you can pick it and if they call your other network, you do the same. Basically, your phone becomes a dual sim card, even it has only one slot.

Why is Kituo suing Equity Bank?
There have been concerns that the Thin SIM card will compromise the security of other mobile subscribers.
Kituo is before court seeking an order to quash the decision of the Communication Authority of Kenya allowing for the rolling out the Thin SIM technology.

Kituo argues the Thin SIM Technology is vulnerable to interception or interruption of communication or data relating to the primary SIM (that of a mobile services provider) of the members of the public. The said Thin SIM technology entails overlaying a SIM card on an existing SIM card. There lies the risk of contamination of data or transmission of private information or account details in the existing SIM card by a third party who could not be party to a relationship between an existing SIM card user and a mobile banking services provider.

Without certainty of the security of customers’ private information and verification of mitigation measures, members of the public subject to Thin SIM Technology are vulnerable to risks resulting from third parties’ to among others: observing, recording and divulging PIN details; initiating, intercepting, manipulating and/or blocking communications including voice calls, SMS, USSD, SIP calls and web sessions and/or destroying SIM toolkit instructions; executing actions without the permission or knowledge of a mobile user; recording and disclosing mobile user’s location information; accessing a SIM card and changing configuration settings without a customer’s authority.

However all necessary security precautions that may be made, there is a danger of a malicious third party assessing a customer’s data using malware. The third party can potentially download a “Trojan” application to the overlay SIM and access a customer’s sensitive data.

Why does this matter interest Kituo?
Article 31 of the constitution of Kenya protects the right to the privacy of every person including the right not to have information relating to their family or private affairs unnecessarily required or revealed, or the privacy of their communications infringed. The decision to roll out the Thin Sim technology is in blatant disregard of the Kenya Information and Communication Act and Consumer Protection Regulations 2010.

Kituo has a constitutional right to institute court proceedings to claim a contravention or threatened contravention of the Constitution, including Article 31. Article 258 (2) (c) further allows Kituo to act in the interest of the public.

Whereas the providers of the SIM Technology cannot deny chances of vulnerability of the data of members of the public – through the intention to test the vulnerability of the technology in a one year trial period, it is prudent that the private information of the members of the public is safeguarded (including in the said trial period) against any malicious third party who may be interested in observing, collecting, altering and revealing such sensitive information.

Users of mobile phones and SIM cards constitute a class of the public whose welfare – regarding the security of their data and when compared to that of private individuals or institutions – must be protected and defended by the society. The society, through individuals or institutions acting on its behalf, has an enormous stake in the protection of the right to privacy. The society must protect information relating to its families or private affairs unnecessarily required or revealed, and the privacy of its communications from infringement or threatened infringement.

Progress of the Case: Thin Sim Blocked
On the 18th of December, 2014 the High Court temporarily blocked the roll out of the Thin Sim technology after Kituo claimed that primary SIMs of millions of mobile phone customers’ risks being compromised in an irreparable manner. The case continues to be heard.

Written by Jodom Mwebi.

THE MUTHURWA RIGHT TO HOUSING CASE: PROGRESSIVE REALIZATION OF ECONOMIC AND SOCIAL RIGHTS?

 

Evictions enlarged

Violent and inhuman evictions

The Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme attempted to violently and illegally evict the residents of Muthurwa estate on 12th July 2010 because it wanted to develop the land on which they lived.

The Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme had called upon Muthurwa residents to vacate the premises without any regard to their lack of alternative housing.  The Trustees continued to threaten to evict the residents from the premises. They had partially demolished and further threatened to demolish all the houses occupied by the residents for purposes of subdivision and sale of the premises, construction of a commercial business park and other commercial developments without regard to the housing interests of the residents. The Trustees further disconnected water supply and demolished toilets and sanitary facilities as a way of compelling the residents to vacate the premises. The Trustees permitted the construction of dusty roads through the premises to inconvenience the petitioners, cause health risks to them and compel them to vacate.

A large portion of the premises were allocated to the City Council of Nairobi by the Trustees and The Kenya Railways Corporation to construct an open air market unilaterally and in total disregard of its adverse effects on the residents. These actions were done without consulting the residents. The Kenya Railways Corporation and the Attorney General refused to intervene in spite of the residents’ pleas and requests.

Going to Court

On the 28th October, 2010, Kituo, on behalf of Muthurwa residents filed a petition of the enforcement of the right to housing under Article 43(1) (b) of the Constitution and Article 28 – Right to Dignity. The petition was filed against The Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme, The Kenya Railways Corporation and The Attorney General.

Muthurwa is a huge estate with over 1,000 residents. They could not all go to court at once. It would be too much as they all would be saying more or less the same things to the judge. So 10 persons were chosen to represent the residents. The 10 were chosen by the residents themselves in an open and transparent way. The 10 came to be known as the 10 petitioners.

The other two petitioners are Prof. Yash Pal Ghai and former Kituo Executive Director Ms. Priscilla Nyokabi. They were added as petitioners to strengthen the case as well as to bring life to Article 22 of the Constitution. Also, in case any of the other 10 petitioners came out of the case, the two additional petitioners were to ensure the case would proceed to its conclusion.

In 2011, Kituo Cha Sheria managed to get an injunction restraining the Registered Trustees of The Kenya Railways Staff Retirement Benefits Scheme from demolishing houses, terminating leases or tenancies, transferring or alienating the suit premises or in any other manner evicting the residents from Muthurwa.

Kituo cha Sheria’s requests to the Court:

  • A declaration that the 1st to 10th Petitioners, the persons they represent and their families are entitled to the right to adequate housing as provided for in Article 43 of the Constitution.
  • A declaration that the actions and omissions of the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme violated the fundamental rights and freedoms of the 1st to 10th petitioners, the persons they represent and their families.
  • An injunction restraining the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme, their servants, agents or others acting on their behalf or instructions from i) demolishing houses ii) terminating leases or tenancies ii) transferring the suit premises and iii) evicting the petitioners and the persons they represent from the estate
  • An order that the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme reconnect sewage systems, water supply and toilet facilities to the estate.
  • An order that the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme avail all information relating to the suit premises including decisions (resolutions) of all the organs that authorised the demolition and sale of the suit premises and eviction of the petitioners.
  • In the alternative, a declaration that in the event of an eviction and prior to such eviction the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme shall ensure and provide:

  1. One (1) year notice in writing to the petitioners and all affected persons

 2. An opportunity to challenge the eviction decision and to present alternatives proposals and issues, priority rights   and interests, which shall be incorporated in the final decision.

 3. All relevant information including land records and a comprehensive proposal on the resettlement plan specifically addressing the residents’ rights and all rights of vulnerable persons in advance.

 4. The residents be accorded reasonable opportunity to obtain legal, technical or other professional advice on their rights and interest and other options.

5. Compensation for violation of fundamental freedoms

The Decision

On the 30th of August, 2012, the Courts declared that:

  1. Kenya Railways Staff Retirement Benefits Scheme violated the Petitioners’ rights to accessible and adequate housing contrary to Article 43 of the Constitution but limited to the manner in which the forced evictions from Muthurwa Estate were conducted on or about 12th July 2010.
  2. The AG to consider amendments to the Water Services Act of 2002 to bring it in line with the expectations of Article 43(1) (d) of the Constitution 2010
  3. The AG shall within 90 days of this Judgment file an Affidavit in this Court detailing out existing or planned State Policies and Legal Framework on Forced Evictions and Demolitions in Kenya generally and whether they are in line with acceptable International standards.
  4. The AG shall within 90 days of this Judgment file an Affidavit in this Court detailing out the measures the Government has put in place towards the realisation of the right to accessible and adequate housing and to reasonable sanitation in Kenya as is the expectation of Article 43(1)(b) of the Constitution.
  5. Within 21 days of this Judgment, a meeting shall be convened by the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme together with the Petitioners, where a programme of eviction of the Petitioners shall be designed. The agreed programme shall be filed in this court, in any event within 60 days of this judgment.

 

Further, the judge ordered that at the time of evictions:

  1. Neutral observers should be allowed access to the suit premises to ensure compliance with international human rights principles.
  2. There must be a mandatory presence of Governmental officials   or representatives including Nairobi County officials and security officers
  3. There must be compliance with the right to human dignity, life and security of the evictees
  4. That the evictions must not take at night, in bad weather, during festivals or holidays, prior to any election, during or just prior to school exams and in fact preferably at the end of the school term or during school holidays
  5. That no one is subjected to indiscriminate attacks.

Kenya currently does not have any domestic law that guides the conduct of evictions. Kenya is however party to the International Guidelines and International Human Rights Law which guide evictions. Kenya is therefore obligated to follow these guidelines. The judge in his decision made reference to UN guidelines on evictions (basic principles and guidelines on development based evictions and displacement).

Right to adequate Housing and Forced evictions

The Judge found clear violation of the petitioners’ rights to adequate housing by the Respondents as the forced evictions were carried out in a reckless manner and without following the UN Guidelines on forced evictions at the very minimum.

Children

Acknowledging that “women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction”, he concludes that as the eviction took place in the middle of the school term, that the rights of the children have been violated.

What does the judgement mean?

The judgement reminds the AG of his responsibility to ensure that proper guidelines on eviction are enacted.

The judgement is focused deliberately on forced evictions specifically because Muthurwa Estate and income derived therefrom is the lifeline of hundreds of Kenya Railways Corporation pensioners some of whom still have families residing in the estate. Secondly, that the 1st to 10th Petitioners are tenants and one of the petitioners in her evidence had no strong objection to the change of user of the suit premises but desired a more humane progamme of eviction. The decision is balancing the interests of the Muthurwa residents against the vast number of railway pensioners whose pensions must be paid by the Board.

The judgement agreed to the Petitioners request for negotiations with the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme but according to the ruling, the negotiations will be on the specific procedures for the actual evictions, in accordance with the UN Guidelines. They do not, on the face of it, include discussion of the development of the estate with a component of commercial assets and residential facilities for the tenants and pensioners.

Residents will eventually have to leave, but there are steps that have to be followed to ensure the respect of human rights such as adequate notice which will be agreed upon between the petitioners and the respondents.

The Judgement clearly outlines certain timelines within which certain tasks need to have taken place. This needs the watchful eyes and active engagement of both Kituo and the communities.

Possible alternative housing which will again have to be negotiated between the petitioners and the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme.

The judgement requires that the Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme and the petitioners agree on an eviction programme to be brought before the judge. This therefore gives the Court a supervisory role in enforcement of the judgement.

Roles and responsibilities of petitioners with regards to the judgement

  • The residents must continue to pay rent to the account given.
  • Continue to cooperate with all parties to the suit. This means that joint meetings will be held between residents and Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme to come up with a way forward to implement the judgement.

Lessons for Kituo

There is need to expand the legal framework for the negotiations. There is much in the judgment which can be drawn upon to show that the framework is and was intended to be broader than focus on evictions. Kituo could also raise the question of alternative housing and the question of commercial cum residential development which will generate funds for the pensioners.

Last , but not least , there needs to be continuous and sustained engagement with the residents of Muthurwa keeping them informed of any progress made and educating them on their rights as negations proceed.

 

Compiled by Aimee Ongeso. Contributions by Jodom Mwebi, Carol Kinya and Maurice Ogosso.

KITUO CHA SHERIA STRONGLY CONDEMNS THE POLICE BRUTALITY ON THE LANG’ATA ROAD PRIMARY SCHOOL CHILDREN.

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“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.” – Koffi Annan

It is extremely unfortunate that men and women who are entrusted to protect not only children but the public in general, betray this trust, violate children’s rights, fail to protect young minds and instead instill wanton fear among
The whole country watched in utter shock and disbelief as the Kenyan Police, with impunity, hurled teargas canisters at innocent young children on Monday, January 19th, Lang’ata Road Primary School as they demonstrated against the grabbing of their play ground by an alleged private developer. The action was not only cruel and barbaric but archaic to say the least.
Article 53(1) (a) of the constitution states clearly that every child has the right to be protected from abuse, all forms of violence, inhuman treatment and punishment, among others. It is very sad that those in the society tasked with the responsibility of protecting these rights, turned against the very people who they are supposed to protect.
We stand by the children in ensuring that justice is granted to them. All the police officers who were involved in this heinous acts must be made accountable for their acts and disciplined accordingly. It is not only legally wrong that the police used excessive force during this protest but it is also immoral that they did so to innocent harmless children. We want to remind the police service that it is their duty to uphold order and respect for the rule of law so as to maintain the fabric of our society.
The children, noble citizens of this great country, were exercising their Constitutional right to assemble, demonstrate, and picket as provided for under Article 37 of the Constitution. Furthermore they were safeguarding and protecting their property and by extension their environment, both rights which are deeply enshrined in our constitution.
Kituo reminds the Police and by extension the citizens of this country- ‘private developers’ included, that the right to education as provided for in Article 43 of the Constitution does not only stop at children attending class but also when they participate in co-curricular activities in order for them to develop socially, emotionally and physically. Play is crucial to optimal child development and has been recognized by the United Nations High Commission for Human Rights as a right of every child. Denying them this is an infringement to their right which is unacceptable.
To the purported developers who have a high affinity for public land, especially that belonging to public institution, Kituo is putting them on notice. We are telling them that it is wrong to grab land belonging to institutions and they should desist from this vice. Play is integral to the academic environment. It ensures that the school setting attends to the social and emotional development of children as well as their cognitive development. We shall endeavor to protect this at all times.
We appreciate the fact that government has strongly come out to condemn the act and to apologize. But we are saying this verbal apology alone is not enough if disciplinary measures shall not be taken against all those who are culpable.
Kituo Cha Sheria will ensure that the truth is revealed and justice granted to these innocent pupils, who were physically injured during the demonstration. We will seek legal redress should the government fail to act and grant justice to the victims of the mayhem. We fully support the Law Society of Kenya and truly wish them all the best as they endeavor to unravel the truth. We guarantee them our support.

 

Gertrude Angote- Executive Director, Kituo Cha Sheria.


Kituo Strategic Planning Retreat

It was time to retreat and plan again. For Kituo cha Sheria staff, this was the moment to plan and strategize for the next five years. The previous strategic plan had elapsed on 2013 and there was need to develop another plan. This journey started earlier this year with the evaluation of the previous strategic plan. The evaluation enabled the staff with the help of the facilitators to highlight and address some of the pitfalls, success and strengths that could be carried on to the next strategic plan. For the past five years, Kituo cha Sheria has gone through notable achievements; winning awards such as CSOYA award in 2010, Distinguished service award with several other recognitions both locally and internationally. Kituo has had major transformation in its bid for legal empowerment of the poor and the marginalized especially in paralegal work that has captured international headlines such as on BBC and Australia Broadcasting Corporation.

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{Kituo staff & All Stakeholders present during the strategic planning at Elementaita Country Lounge}

The Strategic planning started on 14 to 18thOct. 2014 at Elementaita Country Lounge, located next to Lake Elementaita on the Nairobi – Nakuru highway. As it is the norm, Kituo involved most of its stakeholders; the staff, Board of Directors, AGM members, Volunteer advocates and paralegals in the planning. This was a way to ensure that the views of every player in Kituo’s day to day work is put into consideration. The planning took two day’s rigorous strategizing led by able facilitators; Dr. Abuom and Fred Wakhungu. The second day also saw Kituo staff bid farewell to its long serving Chairman of the Board of Directors, Ken Nyaundi. The evening party was filled with ecstatic mood from all present. The outgoing chairman, Ken Nyaundi could not mince his words as he expressed his praise for Kituo and the period he has served. He could remember the low and the high moments he has had while serving as the Chair of the Board at Kituo.

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Anthony Mulekyo (left-Incoming BOD chair) present a gift to Ken Nyaundi (outgoing chair}

Then, while all thought the party had come to a close, the unexpected happened; the lights went off, some commotions while some voices could be heard from the dark singing “Happy birthday dear ED!”. Yes, the admin, under Lydia Awiti, the PA had planned a surprise happy birthday wish to the Kituo ED, Gertrude Angote. It was indeed a exciting moment for everyone as we were all caught unaware.

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{Wishing kituo ED, Gertrude Angote (center) a happy birthday}

The culmination of the strategic planning was marked by a team building exercise at the same venue. The exercises were both mind boggling and physical. All of us appreciated the facilitators as we learnt lessons on how to work as a team!

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{During the team building}

Congratulations LYDIAH for planning such an eventful activity.

Inside Out-Access to justice through Paralegals

Wilson Harling Kinyua is serving a life sentence inside one of Africa’s toughest jails – Kamiti Maximum Security prison in Nairobi, Kenya. He’s been there for 16 years. The way he tells it, he was an innocent bystander as an armed robbery played out nearby.

But that’s not how the authorities saw it. He was arrested and charged for being involved. Without access to a lawyer and unable to call on a character witness to vouch for his honesty, the young college student was convicted and despatched to Kamiti where he’s protested his innocence ever since.
Without a legal-aid system and with a critical shortage of lawyers and a courts choked with an insurmountable backlog of cases there wouldn’t appear to be much hope of Harling ever overturning his conviction and regaining his freedom.

Unless of course he was encouraged and enabled to make the case himself. Harling is one of many inmates who’ve taken the opportunity to learn about criminal law, participate in mock trials and review and critique judgments to become effective and persuasive paralegals.

Well, with the passion I have, every sentence I read in my book of law brings (a) smile. I now know what should be done. I am able to see wrongs are made even by judges. – WILSON HARLING KINYUA, Prison paralegal

It’s a phenomenon sweeping Kenya’s prisons, relieving the pressures on the nation’s legal system and that’s seeing profound injustices corrected, convictions quashed and prisoners who might’ve languished unrepresented for epic jail terms, set free.

Human rights is very hard. But when you come to a group of people who are ready to be empowered, who take up the knowledge with a thirst you have never seen before and are actually implementing the knowledge that you give them, it’s fulfilling. AIMEE ONGESO, Kituo Cha Sheria, Legal support NGO

Foreign Correspondent’s Sally Sara goes behind bars to explore this unorthodox yet wildly successful criminal justice program working from the inside out.

She gains access to prisoners-turned-paralegals, supporters of the program like Kenya’s Chief Justice and to its architect and principal promoter, one of the highest ranking women in the Kenyan Prison Service, Wanini Kireri.

I’m not a rebel. I’m just an officer with a human heart and a passion for changing the lives of inmates in whichever way, whether it is in the law or not in the law. I will always go out of my way to put in place something that can change their life and something that can rehabilitate them, so they can be able to lead better lives on their release. WANINI KIRERI, Senior Assistant Commissioner of Prisons.

Watch the video here:<http://www.abc.net.au/foreign/content/2014/s4102109.htm>copy and paste the url
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Transcript

SARA: This is Kibera, one of the biggest slums in Africa, home to more than two million people. They live hand to mouth and on the edge. Three quarters of their income goes on food. There’s high unemployment and no social net. The state plays little role in their lives. Sixty percent of Nairobi lives in shanty towns like this. When someone commits a crime, the victims don’t look to the government for help.

AIMEE ONGESO: “A big problem here is tenant issues”.

SARA: Aimee Ongeso works with an organisation that provides legal help to the poor.

AIMEE ONGESO: “So this lady couldn’t pay her rent. So what happens here is when you can’t pay your rent the landlord comes and removes the roof or removes the door”.

SARA: “Takes the roof off the house?”

AIMEE ONGESO: [Kituo Cha Sheria” Justice NGO] “Takes the roof off the house or removes the door. So when you go to your house, how can you…. you cannot sleep without a roof”.

“You cannot have a democratic nation or people who believe in the nation or the system if the justice system is down. People don’t have faith in the judiciary. So my neighbour steals from me. He takes my cow or he takes my TV, oh let me wait and go report to the judiciary. No, that will not work. So what I will do is take justice in my hands and beat him, probably beat him to death. And that is why even mob justice is still being done in the streets of Nairobi, because it’s quick justice for what we feel is unfair”.

SARA: With no legal aid system, there’s next to no chance that anyone here could find the means to pay for legal representation, so even the innocent can find themselves locked up for years.

AIMEE ONGESO: “You find a lot of people in detention do not even know why they’ve been arrested, don’t even have the charge sheets, and it is so sad they cannot afford a lawyer. If you’re rich, if you have the money, yes you can afford justice. Justice has become more expensive, just like petrol, just like buying a loaf of bread. The price of justice keeps going up”.

SARA: If life in Kibera slum is tough, life inside Kenya’s prisons is tougher. This video was smuggled out of the maximum security Kamiti prison in 2008 and shows wardens beating inmates during a search for contraband. The prison still has an infamous reputation, but we’re told it’s now a place of dramatic change and innovation – a place where convicts can take the law into their own hands, in a good way.

Kamiti is home to almost 2000 souls, including convicted terrorists, murderers and armed robbers. We’ve been given special access to meet them. We’re here to witness a ground-breaking program that’s turning convicts into legal counsel, in a kind of do-it-yourself justice revolution. It sounds unlikely, even absurd, but it’s working.

WILSON HARLING KINYUA: “Getting justice in Kenya when you are poor, is really like looking for a needle in a haystack. I can tell you that for sure”.

SARA: Wilson Harling Kinyua has been in Kamiti for sixteen years for a crime he says he didn’t commit.

WILSON HARLING KINYUA: “I did not have a lawyer. Of course my background was such that I could not afford one and therefore had to do it myself and at that time I could not be able to express myself the way I am expressing myself now. I could not even be able. The whole set up of the court itself was very intimidating”.

AIMEE ONESGO: “I’m not a lawyer but I have been to court. It just feels intimidating and I’m a very educated person. I come from at least a somewhat reasonable background you could say compared to these other people and you can imagine them in that situation”.

SARA: Harling was a young college student new to Nairobi when he was arrested for armed robbery. He says he was a bystander caught in crossfire but because his poor rural family couldn’t afford a lawyer and he didn’t know anyone who could vouch for his character, he was sent down for life.

WILSON HARLING KINYUA: “Actually that was too heavy for me. It was unexpected. It’s something I could not have even imagined, let alone even to dream about it”.

SARA: Harling lives in this cell with thirty-five other inmates. There’s no privacy and few comforts. Unless he successfully appeals his case in court, he will be here for the rest of his life.

“Tell me about this, this cell room here. Do you ever miss just having your privacy? Do you ever think I just want my own small space?”

WILSON HARLING KINYUA: “Very much. Definitely, you need sometimes your privacy and somewhere you feel safe and you can do your stuff without interference. Indeed it is difficult. It is difficult. I don’t think an ordinary person, given the same set up would be able to make anything but we have been able to adapt to the situation and we are driven by the ambition”.

(MOCK COURTROOM SCENE PLAYED OUT BY PRISONERS)

SARA: This is no prison pantomime. The inmates are re-enacting a real case.

It’s the trial of a young man accused of sexually assaulting an underage girl. Harling is playing the role of defence lawyer.

WILSON HARLING KINYUA: (MOCK TRIAL) “Your Honour, the accused did not take advantage of the girl. He demanded to know her age, but the girl refused”.

SARA: The prisoners have spent hours studying the hours and legal procedures. They may not be able to afford to pay a lawyer, but they can learn some of the tricks of the trade.

WILSON HARLING KINYUA: (MOCK TRIAL) “Your Honour, the girl dropped out of school on her own decision.”

SARA: The training teaches more than legal skills, it gives inmates like Harling the self-confidence to speak out. Before, he was frightened by authority.

WILSON HARLING KINYUA: (MOCK TRIAL) “Your Honour, anybody could have mistaken her for 18 years because she is too big, and all evidence points to that.”

WILSON HARLING KINYUA: “I did not know anything to do with the law, to do with the courts because I had never been to police station let alone the court itself. Well I feel that is now part of me. I wish somebody had discovered it when I was young, but I have realised that I have that talent and even being a lawyer sometimes may not be about academic. It could be you’ve got something inside yourself and that now coupled with the academic, then you can make, you can do an amazing job”.

INMATE ACTING AS JUDGE: “A prima facie case has been established against the accused person”.

SARA: The inmates are not trained as lawyers but as paralegals. They learn the basics of the law to represent themselves in court or write appeals for their cell mates. They argue the cases as if their lives depend on it.

INMATE IN COURT RE-ENACTMENT: “The physical appearance of the young girl does not allow anybody to defile her”.

INMATE ACTING AS JUDGE: “Ignorance of the law is not a defence. I accordingly sentence the accused to twenty-five years imprisonment.”

SARA: The paralegals work from this tiny office inside the prison. Some of the inmates who have exhausted their own avenues of appeal, work tirelessly for those who still have a chance.

Across Kenya, prison paralegals have won more than three and a half thousand cases in the past decade, allowing innocent inmates to be freed.

WILSON HARLING KINYUA: “Well with the passion I have, for me, every sentence I read in my books of law brings some smile that I now know what should be done. I am able to see even when wrongs are made, even by judges”.

SARA: You only have to spend a day inside a real courtroom here to realise what the accused are up against. It’s chaotic, disorganised and sometimes corrupt. The Kenya Government has drafted a legal aid bill but it’s yet to come into practice. There aren’t enough judges or lawyers and without money, it can take years for defendants to make their way through the system.

WANINI KIRERI: “We must appreciate the fact that most inmates may not be very literate. You will see most of them don’t even understand when they are told this is the charge, this is the offence. They are not even aware of what was happening to them while in court. So now that these organisations have really come up with the good practices, of para-legalism and assisting the inmates, then they do the training and the inmates are empowered”.

SARA: Wanini Kireri is the woman who’s made it possible for so many prisoners to hit the books and win their freedom. She’s worked in Kenya’s prison service for 32 years and is now one of its highest ranking women. After hearing about paralegal training at a conference back in 2002, she invited human rights activists into the prison to give it a try.

WANINI KIRERI: “It takes a lot of courage and risk taking because you are doing things that have not been done before. You’re probably doing things that maybe others will say you broke the laws. So it takes courage. Sometimes it’s painful, sometimes the fruits are also very positive and sometimes you cry and sometimes you’re happy. But for most of the time, it’s been very positive for me and I feel inspired”.

AIMEE ONGESO: “Madam Wanini Kireri, if I could, I could give her a Nobel Peace Prize myself – I would. It’s very difficult to penetrate the prison system because it’s a very strict system. It’s very rigid. It’s very bureaucratic. But because of her help in holding our hand through the system, we had a very easy time”.

SARA: Today Wanini is guest of honour at a talent show in Langata Women’s Prison, a highlight in an otherwise pretty predictable calendar for the inmates. Not too many prison officers would get this kind of heartfelt praise from their charges.

HELEN NYOKABI, INMATE: “She’s a wonderful woman. We love her. Madam Wanini just listen. She has a heart of listening to you, your problems. Just to draw you closer to her”.

SARA: Langata is not just home to female inmates, but to dozens of children, too. The youngsters can stay behind bars with their mothers until they turn five years old.

WANINI KIRERI: “Yeah, they are human beings, and it’s important that people recognise the fact that nobody chooses to go to prison. It can be my sister, it can be your sister, it can be my brother. I’m not a rebel, I’m just an officer with a human heart and a passion for changing the lives of the inmates, in whichever way. And whether it is in the law or it is not in the law. I will always go out of my way to put in place something that can change their life and something that can rehabilitate them so they can be able to lead better lives on release”.

SARA: For decades this was a place of no return – death row. Now, it’s the cell block for inmates serving life sentences at Langata. Carol Shiku was convicted of armed robbery and sentenced to life in 2009.

CAROL SHIKU: “I was in shock actually and my family was there. They were already waiting for me. I didn’t expect that. So it was shocking thing. I didn’t even need to talk to my family because I was wondering how to tell them. Actually, I remember I told my sister not to tell my mum the sentence that I was given”.

SARA: Carol is now one of Langata prison’s paralegals. Despite having little formal education, she excelled in her legal training. It’s an incredible achievement.

CAROL SHIKU: “I’m honoured, because I feel now that I can help others. As for me, if I could have that knowledge, even from the beginning, from the police station, I could have not been here”.

SARA: “Some of the paralegals, are they better than the lawyers?”

CAROL SHIKU: “Yeah… you know they… they are serious. Paralegals are serious in their work. More than lawyers. You know lawyers they feel…”.

HELEN NYOKABI: “They are after money”.

CAROL SHIKU: “Yeah, they are after money”.

(CAROL EXPLAINS LEGAL PROCEDURES TO OTHER INMATES)

SARA: Carol’s cellmate, Helen, was convicted of cattle theft in 2009 and sentenced to nine years in gaol.

HELEN NYOKABI: “Being in prison is like being separated from everything. You don’t have any rights. So even if you had rights before, when you come inside here you don’t have any rights any more. The hardest time that you will ever get in your life”.

SARA: Carol and Helen are now using their legal training to write appeals and give advice. Today they’re helping Janet who has also been convicted of armed robbery. Between them, they have already won dozens of cases, allowing their fellow inmates to go free. The victories are cause for big celebrations.

CAROL SHIKU: “It’s so good. It feels good”.

SARA: “How does it feel in your heart when you’ve helped someone to get out?”

CAROL SHIKU: “We feel good”.

HELEN NYOKABI: “We feel good. We feel good. Even to get somebody that you assisted, and that person is released, you feel good. You feel like you have worked”.

SARA: “That must be the best?”

CAROL SHIKU: “It is the best time”.

SARA: The paralegals don’t just work in the big city gaols. They’re having victories in the countryside too, where their role is even more crucial. Often the situation is even worse out here in the rural areas. There are very few lawyers outside the city and many of the local people here only have limited education. We’re on our way to meet a man who had to spend years to not only clear his name, but to get out of prison. He’s one of the success stories of the paralegal movement here in Kenya.

Martin Munene Mwai is still adjusting to life on the outside. He’s back home with his family now but he lost more than a decade in and out of court fighting wrongful charges of fraud in connection with a land deal.
The school he used to run is derelict, he couldn’t keep it going through all the legal battles.

“So your lawyer didn’t help you, so you started helping yourself is that right?”

MARTIN MUNENE MWAI: “I helped myself, yeah. Even that lawyer, I told him to refund my money. I told him to refund my money. In fact he was very ashamed because I helped myself”.

SARA: “Do you feel sorry for the inmates who are still inside?”

MARTIN MUNENE MWAI: “Yes of course, of course yes because nobody likes to be in prison”.

SARA: Martin has agreed to take us to Nyeri prison where he was held illegally. This will be the first time he’s returned since he was released last year.

“What does it feel like Martin to be coming back into here? Does it feel strange?”

MARTIN MUNENE MWAI: “Yeah, I’m very happy in the first place to visit in the prison once again”.

SARA: “So what about here? This is the… this is the kitchen area here?”

MARTIN MUNENE MWAI: “Yes that is the main kitchen. I cannot forget that place because that’s where we’re getting our food from”.

SARA: He was sentenced to five years gaol for fraud, even though the maximum possible sentence was one year. While he was inside, Martin decided to take part in a paralegal training course. He found he had a talent for the law. He says he will never forget being locked up as an innocent man.

MARTIN MUENE MWAI: “I was afraid and very worried. I even became sick, because I am there and nobody would believe that I’m not a criminal, and I’m innocent. I could not tell anybody, you know, the strictness of the prison. So I’m to keep quiet there”.

SARA: Martin kept writing letters to the chief justice arguing his case. Eventually the judge who wrongly sentenced him was removed from the bench for misconduct, only to be later reinstated.
Martin didn’t just get himself out of gaol. Incredibly, he also won appeals for 36 of his cellmates but many others are still stuck inside.

“How many years have you been inside?”

INMATE #1: “Now 15 years”.

SARA: “15 years. When you see someone like Martin can get out, does it give you some hope that maybe you can get out too?”

INMATE #1: “Yeah it can give me some hope because I’m always having that hope in me, inside. I can’t lose that hope. One day I will do something better in my life also”.

INMATE #2: “Poor people like us, we can stay here for life. But even if I had a big person outside, unfortunately it is very hard to get out. Very hard”.

SARA: “So if you’re poor you will stay here for a long time”.

INMATE #2: “Yeah. Look now, like this one here… have 27 years in prison because he don’t have somebody to follow him. He’s come from a poor family”.

(ENTERNG ‘B’ BLOCK)

SARA: So this is ‘B’ Block, for convicted prisoners?

MARTIN MUNENE MWAI: Yeah, convicted prisoners.
(POINTS) This was my house.

SARA: This cell was Martin’s home during his time in gaol.

“So what’s going through your mind Martin to be back here after a long time, what are you thinking?”

MARTIN MUNENE MWAI: “I’m happy to see where I was sleeping but I would not like to come back here”.

SARA: It’s hard for him to describe the joy he felt when he finally beat the system and won his freedom.

MARTIN MUENE MWAI: “It’s like a chicken when it has been locked in a cage and the door’s been opened for it. I was very happy in the first place. And… let me tell you, nobody would like to look back at that gate. When you’re told to walk, you just walk straight, without looking back, because it’s not a good place”.

SARA: Back in Kamiti prison in Nairobi, Harling is focusing on his own appeal.

WILSON HARLING KINYUA: “I’m very optimistic judges will listen to me and they’ll give me that opportunity, because now I’ve done law, I know what I’m asking in court. I know it has basis in law”.

SARA: He hasn’t wasted any of his 16 years behind bars. He’s in the final year of an accountancy degree and he’s just won a scholarship to study law externally at the University of London.

WILSON HARLING KINYUA: “I was very excited, very, very excited and I am giving it all… my all, and I know I’m going to pass. If I get my degree in law and now get an opportunity to go out there, that will be the happiest moment of my life”.

SARA: For Aimee Ongeso working with people like Harling is a privilege, despite the attitude of many Kenyans towards prisoners. It’s not about guilt or innocence, it’s about equality.

AIMEE ONGESO: “So it is very challenging to go into areas that are seen as do not touch by the rest of the community, but when you come to a group of people who are ready to be empowered, who take up the knowledge with a thirst that you’ve never seen before and are actually implementing the knowledge that you give them, it’s fulfilling. When you’re a human being, you’re a human being irrespective of whether you’re a prisoner or not. So access to justice is a long journey, it is difficult but there is hope”.

Story by Sally Sara of Australian Broadcasting Corporation (ABC).07/10/2014

What next for victims of 2007 post-election violence

Today would have marked the beginning of the trial of President Uhuru, who is charged as an indirect co-perpetrator and is facing five counts for his alleged role in crimes against humanity. The date has been postponed, giving room for two status conferences to discuss the status of cooperation between the Prosecutor and the Kenya government.

The harmonious sound of voices raised in uplifting singing rises over the Saturday afternoon din at the public grounds in Kibera. A group of women from Kibera Peace and Fairness organisation are concluding their meeting with a song about peace in Kenya, about good governance and the assertion that women too can contribute to the change that Kenya aspires to. One of the melodious voices is that of Felistus Akoth Audi. She stands tall with the other women, and when she sings, the harmony of her voice masks the disharmony within her heart.

Audi has just come from the place in Mashimoni village, where her son, then only 14 years old, was shot by a policeman on the morning of December 30, 2007. He, along with many other children, had gathered outside when they heard gunshots. Suddenly, her son fell to the ground, screaming and writhing in pain. Audi was out fetching water at the time, but her neighbours were kind enough to rush her son to Masaba Hospital in spite of the danger to themselves.

The policeman’s only punishment was a transfer to another station, but for Audi, this incident marked the end of life as she knew it. The following months were spent caring for her son, who required repeated hospitalisation to treat his badly injured leg. Her husband’s entire business stock was destroyed by marauding mobs, and the family was forced to flee.

Audi’s face twists with bitterness as she describes the trials that her family has endured as a result of the post-election violence that erupted following the disputed 2007-08 elections. “I have got many mental and emotional problems. When I got married, I was brought here to Kibera and I knew this was our home. Now at the age of 40, I have had to start life over in Eastlands, an area that I am not used to. It has destroyed my family finances and my son has dropped out of school.”

In Mathare North’s Chewa Village, Jane Waithera Theuri was a successful business woman when an arson attack destroyed her home, green grocery business and rental houses. Until three weeks ago, when she was forced out to pave way for construction, she was still living in the compound of Soul Winning church, where she ran to for refuge all those years ago. If the councillor of her ward and well-wishers had not stepped in to help her put up another temporary house, Theuri, her children and grandchildren would have been out in the cold.

“When I was given residence at the church, my children lost direction. I could not start a business because we had to spend all the money I received from my eldest son on food. My younger children started drinking and taking drugs. One of my children, who was not yet 20, became a robber and was recently killed by policemen,” she recounts tearfully.

Such stories of spiralling disintegration of family and fortune are replayed across many parts of the country. They tell of the long-term damage caused by the sudden spate of violence that left more than 1,000 dead and thousands injured and displaced.

 

Don’t be vague, let’s go to The Hague

It took the intervention of Kofi Annan and the Panel of Eminent African Personalities to break the stalemate, and in February 2008, the Kenya National Dialogue and Reconciliation Accord was signed. Shortly after, the Commission of Inquiry into Post-Election Violence (Cipev), popularly known as the Waki Commission, was set up. When the commission handed over its report to then incumbent president, Mwai Kibaki, it simultaneously submitted a sealed envelope with names of those thought to bear most responsibility for the violence to chief mediator Annan.

The report recommended the establishment of a Special Tribunal to seek accountability of the persons bearing greatest responsibility, especially for crimes against humanity, failure to which Annan was to hand over the envelope to the International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo. “Don’t be vague, let’s go to The Hague,” became the catch phrase.

This cry was picked up by victims, who placed all their hopes for some form of justice and closure on the outcome of the ICC process. Ironically, two of the six people whose names were in the envelope – incumbent president Uhuru Kenyatta and his deputy William Ruto, were among those that campaigned against local justice mechanisms. Cases against three of the initial suspects were dropped, leaving Kenyatta, Ruto and radio journalist Joseph arap Sang.

October 7 would have marked the beginning of the trial of Kenyatta, who is charged as an indirect co-perpetrator and is facing five counts for his alleged role in crimes against humanity – murder, deportation, forcible transfer, rape, persecution and other inhumane acts. Instead, the date has been postponed, giving room for two status conferences to discuss the status of cooperation between the Prosecutor and the Kenya government. Kenya’s Attorney General, Githu Muigai, will represent Kenya in the first status conference today, October 7, while Kenyatta will appear in person for the second status conference to be held tomorrow.

The prosecution has been hampered by lack of evidence, alleged witness intimidation and coaching, and lack of cooperation by the Kenya government. The ICC’s capacity to bring justice to victims is already questionable, based on its previous success rates and the waning support from the signatories to the Rome statute, especially those from the African continent. In Kenya, news that the existing hurdles could lead to termination of the case against Uhuru are eliciting mixed reactions.

Aimee Ongeso coordinates advocacy, governance and community programmes at Kituo Cha Sheria, a legal advice centre in Nairobi. She has spent close to five years working with victims of post-election violence. In her opinion, the ICC process may have started to go wrong right at the beginning, during investigations led by Moreno-Ocampo. Nonetheless, she feels that Kenya must accept its share of the blame. “The ICC could have messed up in the beginning but the state must take responsibility for not cooperating fully with the court,” she says.

More than anything, she raises concerns about the apparent disregard for international justice mechanisms, which she feels could set a bad precedence. “It is very important that people realise that the ICC, more than anything, in addition to bringing justice to the victims, is fighting impunity, and impunity is fought from top down, not from down up,” she states.

Other experts are of the opinion that justice will come in many forms, not just from prosecutions at the ICC. Francis Mutuku Nguli was the Executive Director of PeaceNet when the violence broke out. The nationwide network of peace building organisations actively participated in calling for peaceful resolution of the conflict. The peace and conflict expert feels that the process towards peace and justice begun when the peace accord was signed. The evidence, according to him, is in the new institutions that were created to address underlying roots of conflict and major reforms that took place in the judiciary and police force.

Nonetheless, he acknowledges that some issues are far from resolved. “Land emerged as one of the key drivers of conflict in 2007, especially in the Rift Valley. With the recent attacks in Lamu County, it is clear that we must address the issue of land in a more comprehensive manner to reduce conflict,” he adds.

Justice will be a long time coming

In the meantime, victims like Audi, faced with the reality that it is too late to get heard, are trying to accept what happened and live with their fate. Jane Onyango, the founder of Kibera Peace and Fairness Organization, where some victims regularly meet, explains that this may not be entirely possible if they don’t get some form of closure. “If I, as a child, knew what was done to my mother, and nothing happened, or I grew up as an orphan because my parents were killed, I would grow up very bitter. We may be creating a very bitter people in the society and that is dangerous for everybody.”

This bitterness could be borne from unfulfilled hopes for justice, such as Audi’s. Despite the meetings she attends, she cannot hide her frustration as she says, “When I hear about The Hague, I get so upset that I cannot speak. I don’t know whom I’ll run to for help, because that is where we thought our voices would be heard, but now I see we will get nothing from there.”

More than six years after the violence, the blood has dried and scar tissue grown over open wounds; and grass has grown over homes that were once filled with love and laughter. But the lives of Audi, Theuri and thousands of other victims are still coloured by what happened to them. With no established local mechanisms to systematically bring perpetrators to account, questions remain as to how sustainable peace will be. The recent move by 154 victims to join a seemingly collapsing case against Uhuru is an indication of the thirst for justice, according to Ongeso, who expresses concern that if nothing is done to fulfil this need, the country may very likely experience another cycle of violence.

Story by BY CHRISTINE BUKANIA of the Star <http://www.the-star.co.ke/news/article-192956/what-next-victims-2007-post-election-violence&gt;

on Tuesday, October 7, 2014 – 00:00 —  –