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.

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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”.


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”.


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”.


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 <;

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

Kamiru Chege Awarded For Malicious Prosecution

“…..i hereby award Mr. Kamiru Chege Kshs 500,000 for the general damage incurred as a result of malicious prosecution” those were the exact words of Ms. Leah W. Kabaria of the High Court of Kenya while delivering the judgment where Mr. Kamiru had been maliciously prosecuted for murder and had spent two and half years at Industrial area.
Mr. Kamiru was arrested year 2005 for the alleged murder of a worker in land row in his village in Muranga County. Without any investigation the owner of the land with whom they bad blood convinced the police that he was the killer and was immediately booked at Gituamba police station. He was later transferred to Industrial area where he had been attending court sessions trying to negotiate the long process of exonerating himself.
He was released in 2010 when the judge found him not guilty of the alleged murder charges. The judge blamed the police for poor investigation and lack of evidence.


Boniface Muinde of Kituo (left) and Kamiru Chege at Kituo head office grounds

Just like many others who have been maliciously prosecuted, Mr. Kameru spend almost 2 years in his home without having the knowledge that he could sue the state for malicious prosecution. However, in 2013, with the help of a friend, he visited Kituo Cha Sheria to seek assistance.
At Kituo, Boniface Muinde assisted him in every way; preparing his pleadings and submissions. Mr. Muinde states that although he was late to seek redress, he offered to help him in that while in prison, he had experience health complications as well as broke his leg. Muinde argued in his submission that the court should allow him to file the case out of the time framework stipulated on the grounds that Mr. Kameru “had lost his mind”. He also cited other things that Kameru had gone through such as loss of income, social stigma and health complications.
Although it took almost a year for the case to come into a closure, Mr. Kameru was pleased with the judgment delivered on 29th August, 2014 although he argues that the amount awarded was too small to compensate the loss he had experienced since 2005. However, Mr. Muinde of Kituo states that Kameru was only awarded general damage as he could not produce evident to show that he had gone through medical expenses or other related facts to warrant him to be award special damages by the court.
Mr. Muinde states that if one has gone through malicious prosecution and later acquitted; one should not wait for one year to lapse as that is the time stipulated by the law within which one can sue the complainant.

Kituo involved in Promotion of natural resource management, economic justice and human rights protection along the LAPSSET corridor.

Kituo cha Sheria Mombasa office has been working towards raising national and international awareness on human rights abuses related to the LAPPSET and promoting transparency and accountability to its citizens. This has been through conducting trainings on inter community dialogue forums. Participants from local civil society organizations (environmental groups, development organizations, youth groups, women organizations, welfare groups, and local communities) who fall under the Save Lamu coalition were involved in the training. 39 were male and 21 were female. The inter-dialogue forum allowed for the community to share their experiences in open conversations and also get a legal interpretation on the same in a simplified mode that is easily understood.

Intercommunity dialogue forum6

(Participants during the Inter-community forum)

The inter community dialogue forums provided the space needed to start crucial conversations that discussed various issues. Key among them in both pate and Amu were the problems that will be caused or aggravated by LAPPSET project, Insecurity issues, land rights, drug abuse, low education levels, weak leadership and health. It also emerged that the importance of women representation in various committees that are formed by the communities to address issues they grapple with was mainly cosmic. The women had no voices in these crucial platforms. Something attributed to the choice of women and also culture.

It emerged that the importance of women representation in various committees that are formed by the communities to address issues they grapple with was mainly cosmic. The women had no voices in these crucial platforms. Something attributed to the choice of women and also culture.

Poverty emerged to be at the epicenter of all the problems that the community discussed.  The recent one was pegged to the survey process that was ongoing and how the locals were selling their land to other people who were not indigenous even in that process.

Certain myths about the effects of the LAPPSET project were demystified in the forum. It emerged that there is very limited understanding of the true picture of the Lamu port under the LAPPSET project. It was also keen to note that some of the older members of community are totally opposed to the project until historical injustices are addressed. However the younger ones were able to highlight some of the benefits that will flow to the community with the development of the port. The need for benefit sharing and public participation was also very strongly put across as a role the government needed to play for the community to embrace the port project.

On land the lack of titles is still a problem in Lamu. It also emerged that most land committees that were formed to fight for the locals to own land are the same that were giving land to immigrants. This was more so in Pate and Siu areas. The problem is so rife that the parliamentary committee on land had to intervene by coming to the ground but they are yet to give a report on their findings.

The issue of the curfew as relates to security was one that was deeply and strongly discussed. The participants were against the curfew as it has affected their source of livelihood which is fishing. The hours that they fish are mostly wee hours of the morning and in the night when the curfew is implemented. The curfew also affected their prayer times especially for the night prayers that begin at 8pm as per the Islamic religion. This was more felt by the mainland people whose curfew starts at 6:30pm.

The issue of drug abuse and trafficking was attributed to weak leadership and parenting too. The community said that the traffickers were well known but the leadership and the community is afraid to confront them. This has made the vice rampant.

Newsletter Articles-August-Sept 2014

  1. Kituo Cha Sheria awarded by Law Society of Kenya

Kituo Cha Sheria was honoured a “Distinguished Service Award” by the Law Society of Kenya during its 21st Annual Conference held on August 2014. The award was a recognition of Kituo’s continued effort in ensuring “Access to Justice for all”. After receiving the award, Kituo cha Sheria Executive Director Gertrude Angote updated on her Facebook page, “A “Distinguished Service Award” Is indeed befitting and humbling. Thank you all Kenyans for promoting the dream towards “access to justice for all”.

  1. Australia Broadcasting Corporation (ABC) to produce a documentary on Kituo’s paralegal work

Australia Broadcasting Corporation (ABC) TV in partnership with Kituo cha Sheria are producing a documentary on kituo’s paralegal work in prisons and in communities. Sally Jane SARA and Craig Philip BERKMAN from ABC were at Kituo’s head office where they interviewed, AGCP Program Coordinator, Aimee Ongeso and paralegals from kituo’s justice centers as well as in prisons where Kituo has established Justice centres and paralegals over the years.

  1. Nairobi University Institute of Diplomacy and international studies students trained Refugee Law

Kituo Forced migration Program conducted a week long training on refugee law at Nairobi University, Institute of Diplomacy and international studies from 4-9th August 2014. The participants who had successfully completed the training on Refugee Law Program were awarded certificates. The training was a partnership between Kituo cha sheria-Forced Migration Program, UNHCR and Nairobi University,Institute of Diplomacy and international studies. The partners are planning to extend the training to other universities nationally.

  1. Kituo cha Sheria kicks off forums on Sexual Gender Based Violence (SGBV) in informal settlements in Nairobi.

Advocacy, Governance and Community Partnership programme (AGCP) has started forums on SGBV in Kibera and other informal settlements. The forums are aimed at empowering people living in informal settlements on gender based violence as well as coming up with way forward on how to deal with SGBV that is mainly rife in informal settlements. The areas of focus are those that were highly affected during the 2007/8 post-election violence. The group is also taking statements that will help them to form the basis of their petition or way forward in advancing their course.

  1. Kituo pays tribute to Odindo Opiata

Kituo was honoured to pay tribute our good friend and colleague, Odindo Opiata. He was a well-respected and well known Advocate of the High Court of Kenya and passionate about Social Economic and Cultural rights. He was passionate about his fellow man and devoted his life to the serving others especially the poor and marginalized. He was associated with KITUO since 1999 where he served with various eminent human rights defender.

  1. Kituo under project Kenya Tuna Uwezo conducts a series of training on land and devolution in Nairobi’s informal settlements

The ongoing trainings on land and devolution in various informal settlements such as Kibera, korogocho, Kamukunji, Majengo, Mukuru kwa Njenga, Dandora and Eastleigh have ignited fresh knowledge on land and devolution among the trainnes. In places where the training had already been conducted such as Eatleigh, Kibera and Korogocho, residents have come up with cases involving land which they want Kituo to do a follow up as they already know their role or in safeguarding either public or private public properties. Marcelino Waithaka of Kituo who has been a major trainer says that, “the training has already born fruits as residents are now more alert on their rights as they have presented to Kituo interests on cases of land grabbing and succession that Kituo has to assist them”.

  1. Kituo and its partners Celebrates the International Day of Peace

On 20th September, Kituo joined the world in celebrating the international day of peace at Eastleigh high School. From the speakers, dancers, singers and actors, the message was clear that; we all want peace. It was an important occasion where people from all walks of life gathered to observe the international day of peace as it was the case in other parts of the world. There were intriguing performances from dancers, rappers, actors and a football session where the message they were portraying is that we want peace and co-existence not only in Kenya but in the whole world. Indeed, we all have the right to peace.

Kituo Celebrates Katiba Day

Kituo cha Sheria joined the world in commemorating the Katiba Day on 27th August 2014. The event was aimed at celebrating the gains we have after 4 years of promulgating the constitution as well as strengthening the gaps in realization of devolution gains. The event was held at Kangemi on 27th August 2014.

The people of Kenya through a referendum adopted the new Constitutional order promulgated on the 27th August 2010 at Uhuru Park, Nairobi. The supreme law envisaged a new political, cultural and socio-economic era where the aspirations of the Kenyan people for a government that promotes the rule of law, respects human rights, equality and democracy as necessary tools for development.

In exercising this authority, every citizen and every person irrespective of tribe, race, religion, and status has an obligation in respecting the Constitution and actively participating in its implementation and enjoying the gains.

The question we grapple with is, if this has been the case and if not, how we can strengthen the grey areas as community and civil society actively engaged in the process of implementing the constitution and enjoying the gains.

The guests who included Kituo cha Sheria Executive Director, Gertrude Angote, Mercy Wambua from Law Society of Kenya, area chiefs and assistant county commissioner, acknowledged the fact that the period has not been all rosy. There has been ups and downs and there was need to sit together as Kenyans and see where we have failed and seek the necessary remedies.

Were keen to address the gains and the challenges we have faced in the period through which we have promulgated the constitution. There has been various emerging issues and concerns especially on the pending legislation on land and evictions and resettlements bills before the parliament.

For the four year’s period, the public have become more aware of their duties something that has increased interaction between policy makers and the public. The public have been equipped with knowledge on their participatory roles as well as oversight not only at the county level but also nationally.

In Defense of the Right to Truth- Gertrude Angote, Executive Director- Kituo Cha Sheria

Kenya must never forget the 28th of February, 2008. This day marked the signing of the National Peace Accord to end the 2007/2008 post -election violence. It was noted that this was a new chapter for the country, to begin the peace process. The establishment of the Truth, Justice and Reconciliation Commission was part of this package deal.

The Truth Justice and Reconciliation Act of 2008 (TJR Act) was enacted by parliament following the post -election violence and was aimed at addressing the gross human rights violations that had occurred from independence to the 2007/2008 electoral violence. It was envisaged that in addressing these violations, Kenya would promote peace, justice, national unity, healing and reconciliation.

It must not be forgotten that it took tremendous courage for victims to testify and give their narratives for the first time, to a truth commission.  Given the amount of time, tax-payer’s money and personal investment dedicated to this process, the TJRC report must be upheld and protected; implementation of the Commission’s recommendations should commence without further delay.

The Truth, Justice and Reconciliation Amendment Act of 2013 (TJR Amendment Act) seeks to undermine the work of the TJRC.  We call upon Kenyans to take note that The TJR Amendment Act gives power to parliament to alter the recommendations of the TJRC report.

Prior to the amendment, it was envisaged that the implementation process of the TJRC report would be done in accordance with the recommendations of the Commission. In the TJR Amendment Act, the implementation of the TJRC report will be done in accordance with recommendation of the National Assembly, upon ‘consideration’ of the report by the National Assembly. The TJR Amendment Act affects the very provisions on the implementation of the recommendations. In consequence, the TJR-Amendment Act amounts to an amendment of the report itself.

That the National Assembly will alter the TJRC report under its consideration seems very likely. The MPs’ ignored the provision by the Justice and Legal Affairs Committee prohibiting any amendments to the TJRC report.  It goes without saying that the country will witness the expunging of names recommended for prosecution to protect those in power or allies of those in power, the editing of certain sections to suit the interests of those incriminated,  a distortion of the narratives of victims and finally a watered down, politically correct document. This will be a blatant and outright violation of the right to truth.

Article 35 of the constitution provides for the right to information. All citizens are endowed with this right. In the wordings of Article 35 (1) (a), (b) and (3), the state and any person holding information has an obligation to publish and publicise it. Whether for the exercise or protection of a right or fundamental freedom, or by fact that such information affects the nation.

Article 19 of the constitution provides that rights, including the right to information and inferred from that, the right to truth, belong to each individual. Thus these rights are not granted by the State, but rather accrue to all human beings.

Further, Article 19 (3) (b) provides that the rights and fundamental freedoms do not exclude other rights. And if there are such rights recognized or conferred by law, their applicability is welcome. The right to truth recognized internationally and applicable in Kenya vide Article 2 (5) of the Constitution – which shall be detailed herein below- is such a right.

National values and principles of governance as enshrined in Article 10 bind all State Officers, organs, public officers and all persons. The National Assembly is one such organ and/or person(s) bound by these values and principles whenever it – Article 10 (1) (b) – ‘enacts, applies or interprets any law.’  The values and principles include but not limited to, (2); the rule of law, democracy, human rights, transparency, and good governance.

The National Assembly is bound to act within the Constitution and other provisions of the law. The findings of the Commission have to be held – by state organs and any persons – within the national values and principles of governance. This is the only way that people can access their right to information. True information.

According the TJR Act, one of the objectives of the Commission is to promote peace, justice, national unity, healing and reconciliation. The Commission must inter alia; establish an accurate, complete and historical record of human rights and economic violations and abuses.

The establishment of truth commissions all over the globe and their objective and mandates to enhance democratic developments with regard to reconciliation and the rule of law in the aftermath of conflict and massive human rights abuses indicate that the right to truth is an internationally accepted principle. The legal acts forming the basis for truth commissions, like the TJR Act, ground themselves on the individual component of victims’ needs and right to know about the context of their suffering and a collective component, recognizing the need of the society as a whole to understand the roots and causes of violence that had taken place in their midst in order to facilitate the reconciliation process, to contribute to the fight against impunity and to reinstall and strengthen democracy and the rule of law. The same applies to the TJR Act.

According to the constitution, human rights embodied in the Bill of Rights are an integral part of Kenya´s democratic state and the purpose of protecting human rights is to preserve the dignity of individuals as well as communities (Art.19 (1)(2)). Furthermore, according to Art. 48, the state shall ensure access to justice for all persons and Art.10 provides that the rule of law, democracy and participation, human dignity and human rights, transparency and accountability are national values and principles of governance, binding all state organs. The internationally emphasised right to truth is derived from all these principles.  In acknowledging the foregoing principles and rights in its constitution and in its TJR-Act, Kenyan state organs are bound by the right to truth.

In conclusion, the spirit of the TJR Act and the Constitution embrace the right to truth for victims of human rights violations in Kenya and thus it indicates that Kenya adheres to an internationally accepted right to truth in the context of transitional justice mechanisms – especially truth commission.

An argument alleged by members of the National Assembly was that persons implicated in the TJRC report were not appropriately heard before the commission. According to the TJRC report, all individuals who had been found responsible, were given an adequate opportunity to respond. The findings against individuals and groups were made on the basis of the balance of probabilities standard of proof. Given that the implication of a potential perpetrator does not equal a verdict of guilt, delivered by a criminal court, the standard of proof might be lower with regard to truth commission reports which follow a different purpose concerning the truth. The rights of the implicated persons were therefore not violated since they had the opportunity to be heard before the commission and/or to submit documents. Consequently, this argument does not justify an amendment of the TJRC report.

In conclusion the TJR Amendment Act violates the right to truth under the Kenyan Constitution and international law.