Kenyan Section of The International Commission of Jurists

News & Press Releases

LAUNCH OF THE ELECTION PETITION CASE DIGEST

CHAIRMAN’S STATEMENT

Development partners here represented, fellow members of civil society, ICJ members, distinguished guests, ladies and gentlemen, good evening! May I take this moment to recognize the presence of the Honourable Attorney General, Mr. Amos Wako, who is one of the members of ICJ-Kenya. I do appreciate your presence and more importantly the vital work you are currently undertaking as regards the crafting of the National Accord and Reconciliation Act 2008. I am certain that I speak on behalf of the ICJ-Kenya membership and the Kenyan society in general in this regard. ICJ-Kenya also deems the Constitutional reforms currently being undertaken by Parliament as pivotal and a great turning point in our country’s history.

The importance of the Judiciary was underlined following disputed 2007 General Elections. The lack of confidence shown by the political class manifested by the option not to resort to this arm of government to resolve particularly the dispute in the Presidential poll came at far too heavy a cost. It is a cost that is undoubtedly too heavy bear again but which, happily, can be repaid through the reforming and strengthening of governmental institutions, particularly the Judiciary and the Electoral Commission of Kenya. With a commitment towards such reforming and strengthening the Judiciary, which has in the last couple of months been the subject of harsh criticism from various quarters, can rise again and win the confidence of the no-less than 38 electoral disputants some of whom, perhaps due to lack of an alternative, have had to file their petitions before this same temple of justice they mock.

Following the disputed elections, the Electoral Commissioners have also been hounded by the public. The trials they face in the courts of public opinion, as well as in the courts of law, are not misplaced as I am reminded of the words in the obiter of Shaikh Amin J. in Osogo vs. Wanjala that the Electoral Commission of Kenya is an important and necessary part of the process of a General Election; the ECK is answerable to any default or neglect in the execution of its task of holding free and fair elections. This indeed is the purport of Section 17 of the National Assembly and Presidential Elections Act (Cap 7).

As such, reforms within the Judiciary and the ECK cannot be wished away and must be undertaken gently yet firmly. We do note that the Chief Justice did recently issue directions to judges in various stations across the country aimed at facilitating the expeditious disposal of election petitions. This comes against the background of election petitions that have dragged on for far too long, with some of them extending beyond the life of the 5-year parliamentary term. While the Chief Justice’s move is a move towards the right direction, it still falls far too short of ensuring expeditious disposal of all cases in the High Court, as the judges charged with the responsibility of hearing Electoral petitions are the same ones expected to hear the regular cases which, inevitably, stand to be sacrificed in favour of the election petitions. It is for this reason that we would recommend the setting up of Election Petition Divisions manned by judicial officers as these would do a great deal in ensuring that election petitions are heard within much shorter time frames, while at the same time ensuring promptitude and efficiency in the disposal of cases across the board.

In order to ensure that the electoral courts are themselves not clogged with issues that could be otherwise conveniently handled, we also recommend that there ought to be targeted reforms in the Electoral Commission that allow for the setting up of an Electoral Tribunal to deal with matters of fact and not law. This tribunal would arbitrate factual disputes in the ‘heat of the moment’ and allow the Election Petition Division to handle Presidential election disputes and election petitions that revolve around matters of law. The Division would also handle any appeals from the tribunal.

The launch of the Election Petition Case Digest exemplifies ICJ Kenya’s long standing relationship with the Judiciary. ICJ Kenya has, for many years now, considered it its duty to continuously give support to this organ of government. The Judiciary is no doubt the least understood arm of government and, due to the fact that for someone to win someone has to lose, it is also perhaps the least appreciated.

During ICJ-Kenya’s last Annual Jurist Conference which was held in August 2007, we were mandated by our members to, among other things, embark on a compilation of election petitions filed in Kenya over the years into a digest. This Election Petitions Case Digest which we launch tonight is therefore an outcome of the above conference. The resolution by the jurists to come up with a Case Digest was informed by the little understanding of this special area of the law. In fact, the technical and specialized nature of election petitions, coupled with lack of a ready reference resource for litigants and lawyers, have been tagged as the major factors that hamper the expeditious disposal of election petitions. Needless to say, therefore, the very serious, if unacceptable, backlog of petition cases still being determined, which I mentioned now stands at over 5 years from the date of filing, was per se, another factor that heavily influenced the recommendation for the compilation of a Digest.

This Case Digest endeavours to demystify this special régime of laws and to create awareness of the judicial case-law precedent that exists today. It also highlights the obstacles and challenges lawyers, petitioners and respondents are likely to face in the event of prosecuting or defending an electoral dispute. This output fits in well with ICJ Kenya’s mandate of pursuing the rule of law through knowledge transfer and simplification of the law, and also for strengthening democratic institutions.

ICJ-Kenya is grateful to the German Technical Assistance Agency GTZ without whose support and partnership in this project, we would not be conducting this launch tonight. ICJ-Kenya is equally grateful for the support accorded to us, by way of almost literally “fishing out” unreported cases, by the National Council for Law Reporting and in particular Ms. Gladys Boss Shollei.

I thank you all, and may God bless you.

Chairman, ICJ-Kenya

WILFRED NDERITU

PRESS RELEASE

GROSS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW AND ESCALATING VIOLENCE IN KENYA

The Kenyan Section of the International Commission of Jurists abhors and condemns in the strongest terms the gross violations of international humanitarian law and the culture of violence in Kenya both of which have continued to be a grave threat to the right to life, property and liberty of the individual in the run-up to last year’s General Elections, but more particularly over the last five weeks. ICJ-Kenya is deeply concerned that even as the mediation talks under His Excellency Kofi Annan’s leadership continue to progress well, violence and other gross violations of international humanitarian law continue to be experienced, unabated, in various parts of the country. ICJ-Kenya supports the mediation talks and hopes that the talks will signal an end to the violence and a return to the rule of law.

Remembering the sanctity of the right to life provided for in Section 71 of the Kenyan Constitution, ICJ-Kenya reminds all citizens of their legal duty to uphold the right to life. ICJ-Kenya further reminds the Government of its duty to uphold the Constitution by actively and immediately protecting the right to life through legal, judicial and administrative measures. ICJ-Kenya has identified and categorized the various forms of violence exhibited as follows:-

1. Killings and other forms of personal injury which appeared to be spontaneous, which erupted around 30th December 2007, upon announcement of the result of the presidential election, and which was targeted against members of certain ethnic communities on the ground of their perceived political affiliation.
2. Killings and other forms of personal injury under the guise of post-election violence but of which there appears to be evidence of prior planning. This form of violence also appears to be targeted against members of certain ethnic communities.
3. Killings and other forms of personal injury against members of certain ethnic communities under the guise of retaliation.
(It is important to point out that in the two forms of violence in 2 and 3 above, there is evidence of prior preparation, instigation and ordering of the violence, having regard to the efficiency in which the killings were carried out, their systematic nature, the cognition of the existence of a methodical plan to kill, and the overall scale of the atrocities. There are also growing indications, in both cases, that there may have been the specific intention to destroy, in whole or in part, certain ethnic communities, strongly suggesting that there may be evidence of the commission of the crime of genocide.)
4. Killings through excessive use of force by the police and other security forces.
5. Widespread and unprecedented levels in the incidence of rape, sodomy and other acts of indecent assault targeting members of certain ethnic communities on the ground of their perceived political affiliation.

ICJ-Kenya strongly condemns all these forms of violence and other violations of international humanitarian law, and considers them to constitute a serious threat to the peace and security not only in Kenya, but within the East African and Great Lakes region. ICJ-Kenya therefore categorically takes the view that effective measures must be taken to ensure that those who have committed the crimes in question are brought to justice. ICJ-Kenya therefore
• Urges the Office of the United Nations High Commissioner for Human Rights to take urgent measures for the investigation of violations of international humanitarian law in Kenya, including the crime of genocide, as well as crimes against humanity;
• Calls for the prosecution, before the International Criminal Court, of those who will be found to have borne the greatest responsibility for genocide and crimes against humanity;
• Calls upon Parliament, as soon as it is reconvened and on an urgent basis, to actively pursue the enactment of the International Crimes Bill into law;
• Urges the Government to urgently set in motion the existing legal mechanisms for addressing violence and other crimes;
• Supports, as an additional measure, the establishment of a Truth, Justice and Reconciliation Commission made up of local and international jurists, as proposed by the mediation team chaired by His Excellency Kofi Annan; and
• Stresses that use of force by the Kenya Police and other law enforcement agencies must remain the measure of last resort, and even then force must be used reasonably and exceptionally when all non-violent measures have failed and only when there is imminent threat to the life of the law enforcement officer concerned. ICJ-Kenya urges the Police Commissioner and other law enforcement officers in positions of authority to actively ensure that all law enforcement officers operate within the standards of the 1979 United Nations Code of Conduct for Law Enforcement Officials and the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

ICJ-Kenya holds the view that injustice can never be a path to justice, and known avenues of seeking redress and justice must therefore be used. ICJ-Kenya further considers that the prosecution of persons responsible for the serious violations of international humanitarian law across the ethnic, political and social divide will put an end to the culture of impunity which seems to be progressively taking root in Kenya, and that such prosecution will eventually contribute to national reconciliation, and to the restoration and maintenance of sustainable peace.

WILFRED NDERITU GEORGE KEGORO
Chairman, ICJ-Kenya Executive Director, ICJ-Kenya

Dated at Nairobi, Kenya, this 5th day of February, 2008

PRESS RELEASE

CHAIRMAN'S OPENING REMARKS- TJRC PUBLIC FORUM

THE KENYAN SECTION OF THE INTERNATIONAL COMMISSION OF JURISTS

A Public Forum on Kenya’s Own Truth, Justice & Reconciliation Commission; Modalities of Setting Up And Running A Truth Commission.

15TH FEBRUARY 2008
THE STANLEY HOTEL, NAIROBI

Theme:
Finding Love & Reconciliation in Kenya

CHAIRMAN’S STATEMENT

Distinguished guests, ladies and gentlemen good morning. I take this opportunity to welcome you to our first public forum on Kenya’s own Truth, Justice & Reconciliation Commission; Modalities of setting up and running a truth commission. This being our first forum of the year and given the vicissitudes of our political environment ‘Finding Love & Reconciliation in Kenya’ is our theme for the day. Ladies and gentlemen this theme was deemed appropriate recalling that yesterday was Valentine’s Day - a day set aside for love and appreciation of each other. Maybe we ought to have held this forum yesterday were it not for protestations we would have received from stakeholders of Valentine’s Day...so here we are today.

As we are all aware we are currently, as a country under intense scrutiny as we embark on a road of soul searching, mediation, reform and reconciliation following a bruising 2007 general election whose outcome we also well know. The 2007 General Election outcome has inadvertently set the tone for the most part of the year.

It has been proffered, and quite correctly so, that the outcome of the last election were a just a trigger to the pogroms and civil strife the country faced as a result. In less than a month since the announcement of the results, hundreds had been killed, hundreds of thousands displaced and, perhaps most troubling, ethnic polarisation deepened into self-perpetuating reality that Kenyans have not seen before. Ethnic consciousness have now been aroused to levels that have never been seen before and regions in the country have been rendered ethnically homogenous as a result of the expulsion of persons that are deemed to be ‘outsiders’ to those regions.
The current death rate stands at well over 1000 people dead and about 300,000 people homeless and internally displaced. These figures represent a grave scenario of one percent of the population been displaced in an alarmingly short space of time. This is generating profound political, social and economic consequences.
In brief, the inability of the Electoral Commission of Kenya to deliver to Kenyans free and credible elections cuts right to the heart of very tenets of a democracy. Remembering that democracy ‘is defined as a government by the people in which the supreme power is vested in the people and exercised directly by them…under a free electoral system.’ The inability for that people to have a free electoral system has resulted in a non democratic state.

ICJ Kenya believes the return to democracy and the rule of law, where the rule of law prevails above all else, then Kenya must seek to embark on transitional justice journey. Transitional Justice gives birth to the rule of law. Transitional justice would involve
1. Institutional reforms
2. Formation of a truth, justice and reconciliation commission (truth commissions)
3. Prosecutions of perpetrators of human rights abuse
4. Promoting reconciliation within divided communities and
5. Constructing memorials and museums to preserve the memory of the past
Kenya is now facing massive erosion of the rule of law as a result of institutional failure of a grand scale i.e. institutional failures have been witnessed, in recent memory, in the Electoral Commission of Kenya, the Judiciary and the State Law Office (the Attorney General’s Office) and the Police. At this moment they all are facing a credibility crisis, as their inability to deliver on their own specific constitutional mandates is self evident.

Today, at this forum, the presenters shall seek to concentrate on the truth commission which have also been proposed and agreed upon by the negotiators at the Koffi Annan led Mediation Talks. A Truth Justice and Reconciliation Commission was recommended in August 2003 by The Kenyan Task Force on the Establishment of a Truth, Justice and Reconciliation Commission, which indicated 90% of Kenyans wanted such a commission from their findings.

Ladies and gentlemen truth commissions are deemed to be superior to other transitional justice mechanisms in a number of respects such as providing redress for victims, deterring future would-be abusers, and providing the basis for social and individual healing. In their nature these commissions are also superior in revealing institutional failings and would be best suited in the Kenyan context
It should also be remembered that most recommendations given by truth commissions (around the world) advice for institutional reforms such as the Judiciary, the State Law Office, the Police and the Electoral Commission of Kenya herein flagged above as failures.
ICJ Kenya will therefore embark on generating a model legislation on a truth commission or more appropriately a Truth Justice & Reconciliation Commission Bill that envisages the formation of a commission anchored in law. We are aware that our proposal is a departure from that proposed by The Kenyan Task Force on the Establishment of a Truth, Justice and Reconciliation Commission which recommended a commission set up by presidential order. A truth commission established via legislation is insulated from the whims of the executive and hence more legitimate in the eyes of the people.

ICJ Kenya shall go further and prepare a memorandum and a position paper as a result of this forum on the establishment of a TJRC which we shall seek to share with policy makers, legislators and Kenyans at large. The setting up of a TJRC is a public process; every step of the way in its creation must be a public affair- it must be set up and run transparently for it to have confidence of the people.

Ladies and gentlemen, truth does not lead to reconciliation. Reconciliation shall only be realized if the TJRC once set up will have its recommendations implemented to the fullest extent possible. We at ICJ Kenya will therefore pay close attention to the way it is set up, run and mode of implementation of recommendations.
Gone should be the days where recommendations of esteemed commissions were ignored or forgotten on shelves. It is what has pushed this country to the precipice of disaster.
Therefore as we return to the rule of law and truth telling- let us shun violence, abhor it and walk the path of peace and dialogue. Let us remembers the humble words of Mahatma Ghandi when he said ‘I object to violence because when it appears to do good, the good is only temporary; the evil it does is permanent.’
Finally, as we embark on this journey we must remind ourselves of the words of Benjamin Franklin who once said, “Democracy is two wolves and a lamb voting on what to have for dinner,” and yet on democracy the truth lies where the facts are hidden.

Welcome to the presentations.

WILFRED NDERITU
CHAIRMAN
ICJ KENYA

PRESS RELEASE

THE KENYAN SECTION OF THE INTERNATIONAL COMMISSION
OF JURISTS P.O. BOX 59743-00200, NAIROBI
TEL. 3875980/1, FAX 3875982
PRESS STATEMENT - FOR IMMEDIATE RELEASE
GROSS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW AND ESCALATING VIOLENCE IN KENYA

The Kenyan Section of the International Commission of Jurists abhors and condemns in the strongest terms the gross violations of international humanitarian law and the culture of violence in Kenya both of which have continued to be a grave threat to the right to life, property and liberty of the individual in the run-up to last year’s General Elections, but more particularly over the last five weeks. ICJ-Kenya is deeply concerned that even as the mediation talks under His Excellency Kofi Annan’s leadership continue to progress well, violence and other gross violations of international humanitarian law continue to be experienced, unabated, in various parts of the country. ICJ-Kenya supports the mediation talks and hopes that the talks will signal an end to the violence and a return to the rule of law.

Remembering the sanctity of the right to life provided for in Section 71 of the Kenyan Constitution, ICJ-Kenya reminds all citizens of their legal duty to uphold the right to life. ICJ-Kenya further reminds the Government of its duty to uphold the Constitution by actively and immediately protecting the right to life through legal, judicial and administrative measures. ICJ-Kenya has identified and categorized the various forms of violence exhibited as follows:-

1. Killings and other forms of personal injury which appeared to be spontaneous, which erupted around 30th December 2007, upon announcement of the result of the presidential election, and which was targeted against members of certain ethnic communities on the ground of their perceived political affiliation.
2. Killings and other forms of personal injury under the guise of post-election violence but of which there appears to be evidence of prior planning. This form of violence also appears to be targeted against members of certain ethnic communities.
3. Killings and other forms of personal injury against members of certain ethnic communities under the guise of retaliation.
(It is important to point out that in the two forms of violence in 2 and 3 above, there is evidence of prior preparation, instigation and ordering of the violence, having regard to the efficiency in which the killings were carried out, their systematic nature, the cognition of the existence of a methodical plan to kill, and the overall scale of the atrocities. There are also growing indications, in both cases, that there may have been the specific intention to destroy, in whole or in part, certain ethnic communities, strongly suggesting that there may be evidence of the commission of the crime of genocide.)
4. Killings through excessive use of force by the police and other security forces.
5. Widespread and unprecedented levels in the incidence of rape, sodomy and other acts of indecent assault targeting members of certain ethnic communities on the ground of their perceived political affiliation.

ICJ-Kenya strongly condemns all these forms of violence and other violations of international humanitarian law, and considers them to constitute a serious threat to the peace and security not only in Kenya, but within the East African and Great Lakes region. ICJ-Kenya therefore categorically takes the view that effective measures must be taken to ensure that those who have committed the crimes in question are brought to justice. ICJ-Kenya therefore
• Urges the Office of the United Nations High Commissioner for Human Rights to take urgent measures for the investigation of violations of international humanitarian law in Kenya, including the crime of genocide, as well as crimes against humanity;
• Calls for the prosecution, before the International Criminal Court, of those who will be found to have borne the greatest responsibility for genocide and crimes against humanity;
• Calls upon Parliament, as soon as it is reconvened and on an urgent basis, to actively pursue the enactment of the International Crimes Bill into law;
• Urges the Government to urgently set in motion the existing legal mechanisms for addressing violence and other crimes;
• Supports, as an additional measure, the establishment of a Truth, Justice and Reconciliation Commission made up of local and international jurists, as proposed by the mediation team chaired by His Excellency Kofi Annan; and
• Stresses that use of force by the Kenya Police and other law enforcement agencies must remain the measure of last resort, and even then force must be used reasonably and exceptionally when all non-violent measures have failed and only when there is imminent threat to the life of the law enforcement officer concerned. ICJ-Kenya urges the Police Commissioner and other law enforcement officers in positions of authority to actively ensure that all law enforcement officers operate within the standards of the 1979 United Nations Code of Conduct for Law Enforcement Officials and the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

ICJ-Kenya holds the view that injustice can never be a path to justice, and known avenues of seeking redress and justice must therefore be used. ICJ-Kenya further considers that the prosecution of persons responsible for the serious violations of international humanitarian law across the ethnic, political and social divide will put an end to the culture of impunity which seems to be progressively taking root in Kenya, and that such prosecution will eventually contribute to national reconciliation, and to the restoration and maintenance of sustainable peace.

WILFRED NDERITU GEORGE KEGORO
Chairman, ICJ-Kenya Executive Director, ICJ-Kenya

Dated at Nairobi, Kenya, this 5th day of February, 2008

PRESS RELEASE

PRESS RELEASE ON THE POST ELECTORAL VIOLENCE

The Council of the Kenyan Section of the International Commission of Jurists (ICJ Kenya) is greatly concerned about the unfolding political situation in Kenya which has been caused by the dispute as to the result of the 2007 presidential elections.

It is difficult to overstate the monumental nature of the crisis. The political leadership in Kenya needs to take heed of the imminent dismembering of the country unless urgent and genuine efforts are made to address the problem.

ICJ Kenya renews its call on all the political players to engage in constructive dialogue with a view to addressing the crisis.

ICJ Kenya is deeply disappointed by the conduct of the ECK whose incompetent and reckless handling of the 2007 elections contributed directly to the current crisis. ICJ Kenya notes that the suffering that the country has undergone is attributable in no small measure to the careless conduct of the ECK. ICJ Kenya urges members of the ECK to voluntarily resign from office to facilitate the commencement of the healing process and the appointment of an independent ECK.

ICJ Kenya notes the disquiet that accompanied the declaration of the results on the presidential poll, which was based on well documented irregularities relating to the tallying of the presidential vote. In other jurisdictions, the ordinary practice where election results are disputed is to seek arbitration in a court of law. The experience in Kenya with regard to election petitions has, however, been an unhappy one. There is a pervasive perception that the Judiciary is not independent. Further, massive delays, of up to five (5) years have been experienced in the finalization of the election petitions. The urgency of the problems facing the country requires an immediate resolution of the dispute, which the courts are unable to provide. Under these circumstances, the only legal solution is of little practical use.

It is the opinion of ICJ Kenya that solution to the current governance crisis in Kenya should be a political rather than a legal one. ICJ Kenya encourages the parties to search for a political solution to the crisis. The possibilities to be explored include:
• In the short term, the replacement of the current members of the ECK with a more independent set of members derived after consultation of all parties and in the long-term, reforms to address election laws and regulations.
• The possibility of a care- taker government to enable the country heal the wounds and organize a free and fair fresh election, under a re-constituted ECK under a more enabling legal regime.
• Reforms to address the independence of the Judiciary.
• The establishment of a Truth, Justice and Reconciliation Commission.

In the search for such a solution, it should be borne in mind that existing legal structures can be overcome once a genuine political settlement is reached. The law exists to serve the interests of the people and not the reverse.

Issued in Nairobi on the 9th day of January 2008

Wilfred Nderitu,
Chairman, ICJ Kenya

LAUNCH OF THE JUDICIARY WATCH VOL. 6

THE JUDICIARY WATCH REPORT LAUNCH
TUESDAY 11th December 2007

Distinguished Guests, Ladies and Gentlemen, it is with great pleasure that I take this opportunity to welcome you yet again all to this year’s JOY Award.

It is our duty to ensure that human rights are a living reality -- that they are known, understood and enjoyed by everyone, everywhere. It is often those who most need their human rights protected, who also need to be informed that the Universal Declaration on Human Rights exists -- and that it exists for them.
UN Secretary-General Ban Ki-moon

With the assistance and collaboration of the Judiciary itself, ICJ Kenya has been running a vibrant “Judiciary Programme” since the Year 2000. The overall objective of the programme is to ensure that the Judiciary is not only independent, but also effective and accessible as the cornerstone institution for social equity and legal protection of human rights. In pursuit of this objective, ICJ Kenya has embarked on innovative and novel initiatives such as publishing key information on the Judiciary, today’s report being one such tool, and has also engaged the Kenyan Judiciary in joint implementation of educational, capacity building and reform advocacy projects, with a bias towards constitutionalism, human rights and the rule of law.

In 2002, ICJ Kenya played a major role in hosting and facilitating the work of a Panel of Eminent Commonwealth Judicial Experts that carried out Peer Review of the Kenyan Judiciary. It is gratifying to note that the Panel’s recommendations and ICJ Kenya’s own submission to CKRC forms about 90% of Chapter Nine of the Draft Constitution that deals with the proposed Legal and Judicial System in Kenya. Indeed, much of the Judicial reforms so far undertaken have drawn from the ICJ’s endeavors, even if execution thereof may have been skewed in instances.

Further, ICJ Kenya has continually engaged the Judiciary in various capacity building projects. The Gender Mainstreaming Project that seeks to curb gender bias in the judicial system, and the Women’s Property and Inheritance Rights Project that seeks to strengthen the legal protection and enforcement of women’s property and inheritance rights in Kenya through the formal Courts bear testimony to this. Under these projects, judicial officers have undergone trainings on international law with specific reference to CEDAW as well as managerial skills.

ICJ Kenya pledges to continue with this cause until we have an efficient, effective and corrupt-free Judiciary. But in so doing, ICJ Kenya shall not turn a blind eye on the key principle of the independence of the Judiciary and due process, and will defend these principles at all cost.

Ladies and Gentlemen, the report that we are launching today is a culmination of hard work and commitment. It comprises seven articles that are well researched and carefully collated. The theme for this year’s report is “Regional and sub- regional Platforms for Vindicating Human Rights in Africa”. As such, the report provides an analytical reference to the Africa Court of Human and People’s Rights, the Economic Community of West African States, the Southern Africa Development Co-operation and the International Criminal Tribunal for Rwanda. In addressing the aforementioned regional bodies, it has addressed issues of Conflicts and overlaps of jurisdictions of the various regional courts in Africa, the role of the Regional courts in the development of International law jurisprudence and the future of these regional courts in redressing human rights violations in the face of the Establishment of the African Court on Human and Peoples Rights

We believe that this report will form an important resource to the Judiciary, Practicing and Non-Practicing Advocates, Academics, the Audience here gathered and to Kenyans at large. This is the sixth edition in a series of these Reports and ICJ Kenya takes this opportunity to invite all persons who are interested in contributing to our future Reports to indicate their interest, and possibly send articles for the next edition.

Ladies and Gentlemen, it now gives me great pleasure to declare this Report Officially launched, and wish you an interesting read.

Thank you.

2007 JURIST OF THE YEAR

ICJ KENYA CHAIRMAN’S OPENING REMARKS

2007 JURIST OF THE YEAR AWARD

Tuesday, 11th December 2007

Distinguished Guests, Ladies and Gentlemen, it is with great pleasure that I take this opportunity to welcome you all to the 2007 Jurist of the Year Award ceremony.

Each year, December 10 is set aside to commemorate the world Human Rights Day. It is on this day in 1948 that the Universal Declaration of Human Rights was adopted. At the time, it was not a legally binding declaration between states. However, over time, much of its human rights content has acquired the force of international customary law, so that it has become incumbent upon all member states of the United Nations.

On this day, the Kenyan Section of the International Commission of Jurists, commemorates human rights day by awarding its Jurist of the Year Award to an individual nominated by its members as deserving of recognition and acclaim for his or her efforts toward the cause of human rights. The theme for this year was “dignity and justice for us all”.

The essence of the Jurist of the Year award is to recognize those in our midst who excel humanity and contradict the forces that hold us back. Awards symbolize conquest and indicate to each one of us that we can excel at our very best natures and talents and overcome our worst natures and talents. The great German philosopher Friedrick Hegel wrote that the greatest human motivation is the need for recognition. As jurists, and for every class or profession, the recognition of peers is the soul of achievement.

When one is recognized for human rights work and great contribution, it is a fundamentally different recognition. It is special for three reasons. First, because human rights are about our essentially humanity and the respect of the dignity of the person that is inherent in each human being. Secondly, human rights work is the greatest act of patriotism, because one has chosen to ensure the protection of fellow citizens, particularly those who are most vulnerable to political, social and economic abuse. Finally, and because it is political, human rights work will face mighty challenges, and sometimes great reprisals against family and friends, and against liberty and sometimes life. All three suggest that an individual who is recognized for achievement in human rights protection is valiant, courageous, highly independent, honest, patriotic, patient, persistent, and humble. As ICJ we have sought to recognize and extol these and other virtues in each person whom we honor as Jurist of the Year.

Friends, our creed today ought to be and must remain that the price of liberty is eternal vigilance. Let us bear in mind the frailties and faults of our politics. While we welcome judicial reform, let us trust that its current circle of connection to a well meaning presidency will remain faithful to principle and not patronage, but let us make sure of this objective within unequivocal constitutional guarantees. Ultimately we who mean the good of our country must remain agitated in building democracy institutions and remain true to the cause of human rights promotion and protection.

Ditinguished ladies and gentlemen, I will now call upon the Chairman of the Jurist of the Year committee Mr. Riunga Raiji to read to us the rules that govern the Jurist of the Year Award nomination.

Thank You
Mr. Wilfred Nderitu

ICJ KENYA NEW GOVERNING COUNCIL

ICJ KENYA NEW GOVERNING COUNCIL

The ICJ Kenya held its 2007 Annual General Meeting on 24th November 2007 at Panafric Hotel in Nairobi. The following members were elected to serve in the governing Council for a period of two years.

WILFRED NDERITU CHAIRMAN
MUKAMI M. MWANGI VICE-CHAIRPERSON
ALBERT KAMUNDE SECRETARY
JOHN NGAII GIKONYO TREASURER
KEN NYAUNDI COUNCIL MEMBER
FELISTUS NJOROGE COUNCIL MEMBER
JACK MURIUKI COUNCIL MEMBER

We wish the new members well as they commence their new term.

George Kegoro
Executive Director

Zimbabwe: ICJ begins high-level mission to inquire into recent arrests and detention of lawyers

INTERNATIONAL COMMISSION OF JURISTS

COMMUNIQUE DE PRESSE - COMUNICADO DE PRENSA

For Immediate Release 5 June 2007

Geneva

Zimbabwe: ICJ begins high-level mission to inquire into recent arrests and detention of lawyers

The International Commission of Jurists (ICJ) today began a five-day high-level mission to Zimbabwe to investigate into the facts and law surrounding the recent reports of the arrest, detention and beatings of lawyers and human rights defenders.

The ICJ is represented in Zimbabwe by Justice Claire L'Heureux-Dube (Canada), former Justice of the Supreme Court of Canada and former President of the ICJ and Mr. George Kegoro (Kenya), Executive Director of the International Commission of Jurists, Kenya Section.

During the five-day mission, 5 to 9 June, Justice L'Heureux-Dube and Mr. Kegoro will visit Harare where they have requested meetings with senior Government officials, including the Minister of Justice, the Minister of Home Affairs and the Police Commissioner, as well as with the Chief Justice and the Judge President. The ICJ representatives will also meet with lawyers who have been detained in recent weeks and will seek to visit lawyers currently in custody.

The ICJ mission will inquire into the detention of members of the Zimbabwe legal community, the alleged denial of their right to represent their clients and allegations of the use of force by security officials during recent demonstrations by lawyers.

For more information, please contact:
Jumana Abo Oxa, Associate Programme Officer, at + 41 22 979 38 26.

Persecution of lawyers and persistent violations of human rights in Zimbabwe

African Public Interest and Human Rights Litigation Lawyers
Meeting in Nairobi 21 – 23 May 2007

Persecution of lawyers and persistent violations of human rights in Zimbabwe

22 May 2007

FOR IMMEDIATE RELEASE:

Nairobi, Kenya – Over 35 African Public Interest and Human Rights Litigation Lawyers met from 21 May to 23 May 2007 in Nairobi, Kenya at the occasion of the African Human Rights and Access to Justice Programme’s 10th International Litigation Workshop on Access to Justice in Africa.

The meeting considered the alarming and systematic breakdown of the Rule of Law in Zimbabwe as evidenced by the recent unlawful arrests, detention and brutal assault of Zimbabwean lawyers whilst representing their clients, and the disobeying of Court Orders by the Zimbabwe Republic Police.

In particular the meeting of public interest and human rights litigation lawyers note with grave concern the following incidents:

i) The illegal arrest and detention, on 4th May 2007, of two human rights lawyers, Alec Muchadehama and Andrew Makoni for carrying out their professional duties and obligations and seeking to protect the rights of their clients in courts of law of Zimbabwe;

ii) Court Orders issued for the release of the two human rights lawyers were ignored and disobeyed by the police;

iii) The assault by the Officer Commanding Law and Order Zimbabwe of a Government lawyer working with the Attorney General’s department for consenting, in Court in the course of a hearing, that the two arrested human rights lawyers be granted bail, and ordering him to reverse the decision of the Court;

iv) The brutal beating of lawyers from the Law Society of Zimbabwe on 8th May 2007, including the President of the Law Society, Ms. Beatrice Mtetwa, as they sought to march and present a petition to the Ministry of Justice, Legal and Parliamentary Affairs and Commissioner of Police expressing their concerns over the arrest of the two human rights lawyers and general undermining of the legal profession;

v) The illegal arrest and detention of another lawyer, Jonathan Samukange on 14th May 2007, following his representation of Simon Mann, who is facing extradition to Equatorial Guinea to face allegations of seeking to overthrow the government;

vi) The arrest and detention, on 15th May 2007, of 10 lawyers in Mutare while they were peacefully demonstrating against the illegal arrests and detention of their fellow legal practitioners.

In light of these alarming developments, the meeting condemns the repression of lawyers working for human rights in Zimbabwe by the Government in a bid to silence them.

The meeting noted that lawyers are protected by law to represent their clients’ rights without interference from the state and frustration of their professional duties. Indeed the

• The United Nations Basic Principles on the Role of Lawyers provides for the duties and responsibility of lawyers to assist their clients in every appropriate way, and take legal action to protect their interests and further that lawyers must be protected by the state from persecution arising from the execution of their duties as lawyers.

• The United Nations Basic Principles on the Independence of the Judiciary provides that the independence of the judiciary shall be guaranteed and that it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

• The African Charter for Human & Peoples Rights (ACHPR) reaffirms the principles of justice and protection of the law. It echoes the right to liberty and protection from arbitrary arrest and detention and for an accused to be represented by a lawyer of their choice.

• The Constitution of Zimbabwe provides for the independence of the judiciary, which judiciary includes judges, magistrates, and any officers of the court.

• Zimbabwe’s Legal Practitioners Act provides for lawyers to represent their clients and have audience with any Court, and through the Law Society of Zimbabwe, express their concerns over matters affecting the legal profession.

In light of these protections of lawyers carrying out their duties including protecting human rights, which laws Zimbabwe and its government are bound to respect and realise, the meeting calls upon the Government of Zimbabwe to :

1. Respect the role of lawyers in protecting and promoting human rights;

2. Immediately stop all arrests, detentions, beatings, torture or persecutions of lawyers carrying out their duties;

3. Adhere to the Rule of Law, including the respect of Court Orders and;

4. Respect human rights in Zimbabwe specifically, the right to freedom of association, expression and freedom from torture, inhumane and degrading treatment.

The meeting calls upon the African Union, the Southern African Development Community, COMESA and the individual Governments of all African countries to demand the restoration of the Rule of Law in Zimbabwe.

The participants resolve to continually monitor and lobby for the restoration of the Rule of Law and observance of human rights in Zimbabwe and to actively ensure that atrocities and human rights violations in Africa will not go unpunished!

The meeting further calls upon the media to continually and impartially report on the situation in Zimbabwe and to ensure that it gives a voice to the voiceless victims of violence and injustice within Africa.

This communiqué is signed by participants from the following African countries:

Cote d’Ivoire – Ghana – Kenya – Malawi – Namibia – Nigeria – Senegal – Swaziland – Tanzania – Uganda – Zambia – Zimbabwe.

_________________________________-end-___________________________________
For further information contact:

The Kenyan Section of the International Commission of Jurists
Vihiga Road, Kileleshwa
P O Box 59743 00200 NAIROBI, KENYA.
Tel. +254 20 3875981
Fax. +254 20 3875982
www.icj-kenya .org
info@icj-kenya.org

ON THE ALLEGED INTERFERENCE BY THE VICE PRESIDENT WITH THE JUDICIAL TRIAL PROCESS

PRESIDENT WITH THE JUDICIAL TRIAL PROCESS

The Kenyan Section of the International Commission of Jurists in reaction to the report that the Vice President has made attempts to interfere with the judicial trial process calls for an urgent investigation into the matter. Such interference if established to be true, speaks the language of power, is a gross meddling with judicial independence meant to intimidate and influence judicial officers to subvert the cause of justice. Even if it is the case that the Vice President did not seek to interfere with the judicial process, the very act of engaging in correspondence with a judicial officer concerning a matter pending for his determination is, itself highly irregular and constitutes an act of interference with the Judiciary. This is in total contravention to the United Nations principles on judicial independence and other internationally accepted principles, which Kenya is bound to observe.

The rule of law principles demand that a judicial officer dispenses justice without fear or favour and thus this kind of interference has grave consequences for access to justice in this country, the core mandate of the judiciary in Kenya.

ICJ Kenya warns the members of executive against any such meddling with judicial affairs and lack of respect for judicial authority which unless checked can lead the county into a state of anarchy when the public loses confidence in the judiciary. ICJ Kenya also notes that for a long time now, the judiciary continues to be riddled with numerous problems stemming from its lack of institutional independence and accountability systems. ICJ Kenya believes that lasting and effective solutions to the problems, which have plagued the judicial system, depend on an accurate assessment of the root causes.

The judiciary needs a strong legislative and policy framework to govern its affairs and cushion it from executive interference. ICJ Kenya thus calls for:

• the speedy enactment of the proposed Judicial Service Bill which provides for institutional, financial and administrative independence.
• In addition, the law governing contempt of court needs to be reviewed to enable the judiciary deal with those who undermine the authority of the institution.
• the judiciary needs to strengthen the Judicial Service Commission to address public complaints

Finally, ICJ Kenya calls upon the judicial leadership and Judicial officers, in accordance with their oath of office, to stand firm against any executive interference in dispensing justice in order to win back the ever waning public confidence in the institution.

Signed

George Kegoro
Executive Director
19 April 2007

REINSTATEMENT OF JUSTICE AGANYANYA

ON THE REINSTATEMENT OF JUSTICE AGANYANYA AND THE NEED TO REFORM THE REMOVAL PROCESS OF JUDGES

The Kenyan Section of the International Commission of Jurists (ICJ Kenya) notes with concern the events leading to the reinstatement of Justice Aganyanya to the bench on 24th January 2007 after a protracted hearing at the Judicial tribunal set up to investigate him and other suspended High Court judges. The unfolding scenario exposes the flaws in the process employed by the Ringera Committee in investigating the judges. Whatever its initial claims, the process has ultimately been a source of embarrassment for the judicial officers involved and also brought the judicial institution to ridicule and disrespect.

In the opinion of ICJ Kenya, the removal process for judges in Kenya under the Constitution is unaccountable, completely flawed and flouts the rules of natural justice. The role of the Chief Justice vis-à-vis the function of the President under the Constitution to set up the investigative Tribunal brings to question the independence and impartiality role of such a body in the delivery of its work.

The ICJ Kenya further notes that in Kenya a judge is only removed from office under section 62 of the Constitution, for two reasons being; inability to perform the functions of his office arising from infirmity or from other cause and for misbehaviour. It is not clear whether either or both of these provisions also cover incompetence.

In removing a judge, the Chief Justice proposes and the President working through a tribunal disposes. ICJ Kenya is of the founded opinion that the removal process as outlined in section 62 of the Constitution is inadequate. One of the key shortcomings with section 62 is that the Constitution does not specify the various ways in which the Chief Justice comes to know that the question of removing a judge has become necessary. It does not even state what counts as sufficient evidence to trigger the Chief Justice recommending to the president that the judge ought to be removed.

In addition, the preceding decision to constitute ad hoc investigative committees by the Chief Justice to investigate judicial officers (the Ringera Committee and the Onyango Otieno Committees) does not have clear legal backing. Though the JSC as established under section 68 of the Constitution is mandated to play a role in the appointment process, the Commission has no role in the disciplinary and removal process of judges but only for magistrates and Kadhis. This situation can only be reformed through constitutional reforms which are long overdue. ICJ Kenya strongly calls for the reconstitution of the JSC to be given more powers and functions including those relating to disciplinary and removal process of judges. This should be done through the establishment of a permanent committee under the JSC to deal with these issues. This will eventually ensure an independent system of removal and eliminate any room for witch hunting.

As regards the tribunals set up by the president, criteria ought to be better developed with a careful selection of those to sit on them. First, sitting judges of the High Court or the Court of Appeal should not sit in the tribunals. The rationale being that the double functions have compromised judicial work and also the tribunal work by the judges having to juggle up the two roles. This has contributed to the delays in dispensation of justice and the slow determination of the matters before the tribunal. Secondly, the independence of such tribunals will be enhanced by appointing persons that are independent from the process.

Further, ICJ Kenya notes that the tribunals investigating the conduct of the suspended High Court and Court of Appeal judges are still a long way from completing the hearings and part of the delay is due to the constitutional references pending in the High court. ICJ Kenya urges the Chief Justice to ensure that the pending constitutional references are disposed off as a matter of priority to bring these matters to a speedy conclusion.

Ultimately, Chief Justice Evans Gicheru needs to act urgently on problems touching on the internal governance of the judiciary and offer the necessary leadership in reengineering judicial reforms.

SIGNED

MR. GEORGE KEGORO
EXECUTIVE DIRECTOR

25TH JANUARY 2007

APPOINTMENT OF MR. GEORGE KEGORO AS THE EXECUTIVE DIRECTOR AT THE ICJ KENYA

The Council of the Kenya Section of the ICJ is pleased to inform you that Mr. George Kegoro has been appointed the new Executive Director with effect from 15th January 2007. Prior to this appointment, Mr. Kegoro was the Chief Executive of the Law Society of Kenya between 1998 - 2006, where he was responsible for all matters of administration and financial management. Mr. Kegoro brings to the ICJ Kenya a wealth of experience in both administration and management of a member based organisation.

As the Executive Director, Mr. Kegoro will be tasked with among other things, initiating policy proposals, developing project ideas, managing and coordinating the implementation of programmes and liaising with Government, NGOs and other collaborators on matters touching on the ICJ Kenya's Mandate.

We welcome him to the ICJ family.

PUBLIC OUTCRY IN THE INCREASE OF PRESIDENTIAL. MINISTERIAL & PARLIAMENTARY PAY PERKS.

JOINT PRESS STATEMENT, 8TH DECEMBER 2006
PUBLIC OUTCRY IN THE INCREASE OF PRESIDENTIAL. MINISTERIAL & PARLIAMENTARY PAY PERKS.
2. Parliament has through the Statute Bill (Miscellaneous Amendment Act) 2006 voted to increase the President's pay package, allowances for the Vice President, Ministers, Assistant Ministers and a handshake for MPs at the end of the five-year term.
3. By raising their pay perks, MPs have caused public outrage for among other reasons the following:
i) That MPs are treating public revenue as is if it were their own personal resources thus destroying the nexus between the revenue raising capacity of the country and the expenditure authority of that revenue

ii) That MPs are the only employees in the world who set their own emoluments and allowances unilaterally.
iii) That majority of Kenyans are living on less than one hundred shillings a day.
iv) That MPs are showing absolute disrespect to the voter and taxpayers and are further contributing to the impoverishment of the Kenyan people since the increment does not reflect on the current needs of this Nation
3. Our calculations reveal that a Kenyan MP can earn over Kshs 850,000/- every month (10.5 million a year) in salary, emoluments, travel and sitting allowances in addition to other perks (Each MP is entitled to a car grant of Kshs 3.3 million and an interest free loan of Kshs 8 million to purchase a home).
4. We provide a table below of comparative salaries for MPs in other countries:

Country Monthly salary & Average Monthly National Annual
allowances in Kshs Income per person Budget in Kshs
in Kshs
Kenya 877 ,500/- 3,200/- 271 billion
Tanzania 116,666/- 2,060/- 163 billion
Uganda 180,000/- 1,700/- 135 billion
Nigeria 61,666/- 3,400/- 939 billion
South Africa 246,642/- 30,170/- 4,811 billion
India 75,938/- 4,380/- 8,191 billion
The UK 1,816,200/- 225,600/ - 64,342 billion
United States 1,018,733/- 266,085/ - 154,687 billion
N orway 542,000/- 357,540/ - 5,184 billion
5. >From the above table, our Members of Parliament are probably some of the best paid in the world despite the fact that our per capita income is among the lowest in the world. This salary is also not matched by due diligence on the part of MPs who need to take responsibility for the role they are supposed to play. They have repeatedly failed to attend sessions, transparency and accountability is at its lowest and more so legislative making responsibility appears to be the least of their concern.

6. Media reports also indicate that the President will now earn a monthly salary total package to Sh3.2 million a month from the current package is Shl.9 million.
7. In the table below, we provide a preliminary summary of what other heads of states in other jurisdictions take home

Country Monthly Salary in Average Income Annual Budget
Kshs
USA 2,640,000/- 266,085/- 154,687 billion
UK 2,345,137/- 225,600/- 64,342 billion
India 150,000/- 4,380/- 8,191 billion
Kenya 3,200,000/- 3,200/- 271 billion
Way Forward
1. In contrast to our situation, the government of President Jakaya Kikwete in February 2006 rejected a proposal by members of Parliament for a salary increase to double their pay initiated by MPs (see the annexed table on what Tanzanian MPs earn).
2. Considering that in 1972, the ratio between the lowest paid civil servant and the highest was 1 :40; and that today, this differential is in excess of 1 :320; if we were to revert back to the 1972 ratio of 1 :40- the ratio that persists in many parts of the world- MPs should be entitled to about Kshs 400,000/- per month with the President taking home a maximum of Kshs 1 million; which are good enough figures to live on.
3. The main questions therefore are:
a) Are not such increases robberies of tax payers' resources?
b) Can our economy sustain this level of salaries without serious strain considering Kenya's human development index?
c) Must Our MPs be reminded that whereas they address issues regarding their salaries and allowance with much vigour forgetting their differences; but when it comes to matters of national interest, they cannot take care of the public welfare?
d) Are Kenyans therefore willing to elect leaders who will reduce pay perks for MPs and other senior public servants to a level that our economy can afford?

4.
5.
e) As we get into an Election year, we ask Kenyans to think wisely as these are the same MPs who will come to them asking for re-election. We call on all voters to challenge their individual MPs whether they will say NO to these increases and we stand to count on the MPs who will say NO to the motion.

ICJ KENYA
KNCHR

CANCELLATION OF THE SWEARING IN CEREMONY FOR HIGH COURT JUDGES

The Kenyan Section of the International Commission of Jurists (ICJ Kenya) regrets the action taken by President in failing to honour the swearing ceremony that was scheduled for 6th December 2006. The action by the president has fundamentally undermined the independence, authority and dignity of the judicial institution.

The Appointment process of Judges is a critical function and it plays a key role in the independent functioning of the judiciary. When the president fails to honor such a ceremony without any explanation speaks the language of power to judges by the executive arm and it clearly exposes the lack of judicial independence that the Kenyan judiciary continues to face. The unfolding events beg the issue of the appointment criteria and it reveals a shocking lack of transparency in the manner appointments to judgeship has been made. This also exposes the Judicial Service Commission as an institution in urgent need for reform.

ICJ Kenya has for a long time been on the forefront in clamouring for judicial reforms aimed at realizing judicial independence and accountability in Kenya. The struggle for judicial independence has been hampered by insufficient political will, poor conceptualization of the key elements of judicial reforms and a lack of a clear consensus on a judicial reform agenda. In addition judicial reforms have not been sequenced or prioritized.

The appointment process of judges in Kenya has for a long time been marred with immense political interference and this is no doubt a reflection of the judiciary we have. It is not lost on Kenyans that the late Chief Justice Chesoni was bankrupt at the time of his appointment. Others have been appointed for other considerations other than merit including political, ethnic and other affiliations.

Under section 61(2) of the Kenyan Constitution, it is the president who ought to appoint judges with the advise of the Judicial Service Commission (JSC). The president is however not bound by such a recommendation by the JSC. The president thus has too much power to determine who becomes a judge and needless to say such an appointment criteria seriously compromises judicial independence.

ICJ Kenya has on many occasions advocated for an open appointment system for judges and the empowerment of the Judicial Service Commission to carry out the appointment mandate. The process should involve advertising for the posts and vetting of these officers, publish the recruitment criteria, announce the short listed candidates and have an independent body to assess and make recommendations. This will effectually serve to prevent executive interference with the functioning of the judiciary. Regrettably these suggestions have not been acted on and the problem still persists as can be read from the aforementioned event.

ICJ Kenya notes the dire need for the judiciary to restore public confidence in the instruction, by being more transparent, accountable and independent by reforming how judicial officers are appointed, evaluated and promoted, disciplined and removed from office. This has to start by the securing of an independent legal body.

The ICJ Kenya notes with concern the events surrounding the scandalous event in question and notes that Kenyans deserve an explanation. In particular, ICJ Kenya would like to know what criteria was used to select those on the list of the said officers and why they could not be sworn in and who were involved in the consultations.

ICJ Kenya calls on Parliament to urgently address constitutional and legal reforms touching on the judiciary to enhance its independence. In particular, parliament needs as a matter of priority to enact the Judicial Service Bill, which is intended to give more independence to the Judicial Service Commission to carry out its mandate.

Monica Mbaru
Executive Director

7th December 2006

PRESS STATEMENT ON THE CORRUPION CASES IN KENYA

STATEMENT ON THE CORRUPTION CASES IN KENYA

The Kenyan Section of the International Commission of Jurists (ICJ-Kenya) strongly states that for the respect of the rule of law to prevail, the Attorney General’s office has to give the lead in tackling corruption cases in Kenya as mandated of the office by the Constitution of the Republic of Kenya.

Few countries in the world can claim to be free from corruption and Kenya is no exception. The change of government in 2002 to NARC came under the commitment to eradicate corruption that allegedly characterized the previous KANU government. The chief legal advisor of government being the Attorney General was key to the set up of the Kenya Anti-Corruption Commission to address matters relating to corruption and therefore the AG should give the necessary support to the work undertaken by the body.

Section 26 of the Constitution of Kenya gives the mandatory responsibility to the Attorney General (AG) to advise the government (…shall be the principal legal adviser to the Government of Kenya). The Constitution also vests in the AG the responsibility to direct investigations through the Commissioner of Police or any other office or officer that may be necessary towards investigations of any suspected crimes or offences.

Kenya Anti-Corruption Commission (KACC) being an investigatory body is subservient to the Constitutional provision, which gives the primary responsibility to the Attorney General to take measures, to investigate and to advise the government the extent of liability or criminal responsibility of any person/s, and to undertake such further or other investigations as may be necessary to tackle corruption or any criminal or civil wrong.

The circus and blame-game on the quality of work done in investigating corruption cases by the KACC by the office of the attorney General does not add value to efforts o tackle corruption in Kenya and whatever action that the KACC office may take to investigate corruption cases refereed to them, the utmost responsibility rests with the office of the AG. KACC forms just a part, and an important one indeed, of anti-corruption mechanisms that are in place to address corruption cases in Kenya.

The ICJ-Kenya calls upon the office of the Attorney General to live to its constitutional mandate of prosecution of cases and incorporate KACC to work as partners in fighting corruption by complimenting each other’s roles. Corruption is an obstacle to economic development and also to political integration and the government should combat it.

Monica Mbaru
Ag. Executive Director

STATEMENT ON THE RAID ON HOPE FM (NAIROBI PENTECOSTOL CHURCH)

The Kenyan Section of the International Commission of Jurists condemns strongly the armed raid, killings and arson carried out on Hope FM in the late hours of 12th May 2006. This raid is an affront on the Freedom of the Media and Freedom of Expression in Kenya. Coming so soon after the government raid on the Standard Group and KTN, the attack on Hope FM brings to question the freedom of the media to carry out its important work of informing and entertaining without interference.

With the Media coming under attack from seemingly criminal elements, questions must be raised as to whether the public should not be more pro-active in protecting the hard-earned media freedom that is now under threat. Any attack on the media should be viewed in the correct perspective as an attack on democracy, freedom of expression and the right of the people to know and must be condemned by all.

The ICJ however urges swift and thorough investigations to unearth the reasons and motive behind the raid; the identity of the raiders and to ensure the course of justice is served. The current trend where persons aggrieved by media houses take the law into their hands is regrettable and must be condemned in the strongest terms possible. It is an act of impunity that greatly undermines the rule of law. We call for greater tolerance to differing views and for the rule of law to prevail even where people are aggrieved by the Media. There are legal channels to address such grievances. The police should consider providing greater security to media houses in light of recent happenings.

Dated at Nairobi this 13th day of May 2006

Samuel Mbithi
Executive Director

STATEMENT ON GOVERNMENT'S EXPLANATION

The Kenyan Section of the International Commission of Jurists finds grossly inadequate the statements issued by the police and the Minister for Internal Security, Hon. John Michuki on the raid by the police on KTN and Standard Newspapers. It is unfortunate that government can hide behind vague statements like “state security” and “if you rattle a snake you should be ready to be bitten” in a matter as grave as the attack on the media house.

It will be remembered that some of the most heinous crimes committed against the people of Kenya, both by the colonial government and subsequent independence governments were perpetuated under the guise of state security. People were detained and tortured, human rights and reform activists imprisoned and maimed in the name of state security. Corruption scandals of huge magnitude were hatched and executed under the cover of state security. We view this excuse as an old and tired attempt to avoid accountability on the part of state agents.

A blanket statement justifying seemingly official criminal actions on ground of state security cannot stand in this day and age – Kenyans must demand more. What would prevent personal or political vendetta being clothed in state security to harass and intimidate the public? For this justification to hold, the government and Hon. Michuki in particular must tell Kenyans the details of what constituted a threat to state security and provide credible evidence to support it. Secondly, he must point out clear provisions within the law that allow him to unleash hooded policemen to destroy property, harass and intimidate people in the name of state security.

The police must act with civility when conducting legitimate security operations. It does not help the image of the police in the eyes of the public if at the mention of the police the only image one conjures in their mind is one of armed, hooded and cruel criminal-like operatives. It is important that the dignity of persons be respected at all times by our law enforcement agents.

Samuel Mbithi
Executive Director

Dated: 3rd March 2006

EMINENT JURISTS PANEL...

Justice Arthur Chaskalson (South Africa) and Professor Stefan Trechsel (Switzerland), members of the ‘Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights’, ended their visit to Kenya today. They are part of an independent group of eight jurists appointed by the International Commission of Jurists (ICJ) to examine the global impact of the fight against terrorism on human rights and humanitarian law. The Panel will hold hearings over the next year in all regions of the world.

Information was provided to the Panel members at a hearing, hosted by the Kenyan Section of the ICJ, on terrorism and counter-terrorism by representatives from governments, national human rights institutions, lawyers, civil society and human rights defenders from Kenya, Tanzania and Uganda. The Eminent Jurists also met with members of the Government of Kenya.

During the hearing attention was drawn to broad definitions of terrorism and related criminal offences, increased executive powers to declare individuals or groups as terrorists or terrorist organisations often without judicial remedy and shifts in the burden of proof contained in recently adopted legislation in Tanzania and Uganda. This has given rise to concerns as to their potential abuse against legitimate dissent. Concern was also expressed about provisions of pre-existing security legislation in East Africa, such as the Preventative Detention Act in Tanzania. The eminent jurists stress the need for counter-terrorism legislation to define clearly crimes of terrorism in order to comply with the principle of legality.

The eminent jurists were informed of renewed efforts to introduce counter-terrorism legislation in Kenya. They welcome commitments expressed by government ministers whom they met to ensure that the law would comply fully with human rights standards and the Kenyan Constitution. They also welcome the intention to consult with Kenyan civil society in the process of drafting the legislation.

During the hearing complaints were raised regarding poor policing, incidents of arbitrary arrest and torture in the investigation of past terrorist attacks in Kenya. Reference was also made to impunity and lack of accountability of law enforcement officers. The eminent jurists welcome assurances given to them by the Minister of Justice and Constitutional Affairs that the present government of Kenya would not tolerate such conduct.

The eminent jurists noted with concern the many submissions they received about a perception of vulnerability of the Muslim community in East Africa as a result of counter-terrorism laws and policies.

Grave human rights abuses are committed by the LRA in Northern Uganda, which are strongly condemned by the members of the Panel. They recall, however, that this does not alter the duty of the Ugandan Defence Forces to respect their obligations under human rights and international humanitarian law.

The jurists learned with grave concern of allegations of torture and ill-treatment of suspected ‘terrorists’, at times in unofficial places of detention in Uganda (‘safe houses’). It appears from the hearings that similar allegations have been made on various occasions in the past and that there has been no effective investigation of them as required under international law.

Finally, the members of the Panel would like to thank all the persons who provided them with information, opinions and explanations during their visit. This material, and other material received over the next 12 months, will provide a resource for the final global report of the Panel.

Background

The Panel consists of high-level jurists who exercise their mandate independently, with the logistical support of the ICJ Secretariat and its network of organizations.

In the East Africa hearing the Panel was represented by Justice Arthur Chaskalson, former Chief Justice of South Africa and the first President of the South African Constitutional Court, and Professor Stefan Trechsel, former President of the European Commission on Human Rights and recently appointed judge ad litem to the International Criminal Tribunal for the former Yugoslavia.

The other members are Professor Georges Abi-Saab (Egypt), Professor Robert K. Goldman (United States), Hina Jilani (Pakistan), Professor Vitit Muntarbhorn (Thailand), Professor Mary Robinson (Ireland) and Justice Raúl Zaffaroni (Argentina).

The Panel will hold hearings around the world over a period of 18 months. On the African continent, the Panel will also hold a sub-regional hearing in North Africa. See for more information on the Eminent Jurists Panel at www.icj.org.

For further information, please contact Samuel M’Bithi or Gerald Staberock (in Nairobi) at + 254 (0)20 3875981 or Isabelle Heyer (in Geneva) at +41 (0) 22 9793821.

Dated: 2nd March 2006

PRESS STATEMENT ON CORRUPTION IN GOVERNMENT

The Kenyan Section of the International Commission of Jurists (ICJ Kenya) is concerned by reports to the effect that the President was informed of participation in the Anglo Leasing scandal by his ministers but is yet to take any action against them. ICJ Kenya reminds the President of his pre-election pledge to decisively fight corruption and, more importantly, of his constitutional oath of office. The indifference, indecision and studious silence so far shown by the President is a betrayal of the terms of the contract between the government and the governed. It also easily lends credence to fears of the citizenry: that the real impediment to the anti-corruption war is lack of political will, starting from the top. ICJ Kenya therefore demands that, as a starting point and as a sign of good faith, the President must immediately take action against those of his ministers as have been implicated by suspending them from office, in order to pave the way for their in-depth investigation and possible prosecution for any corrupt role they may have played. The President must apply the rule of law fairly, and without discrimination and must not be seen to be surrounded by a clique of untouchable personalities.

By the same token, while the Kenya Anti-Corruption Commission is supposed to conduct its investigations impartially and without prompting from any quarters, it must be seen to do just that. Public perceptions will necessarily be a factor in assessing the commitment of the Commission in fighting corruption. The Commission will therefore need to restore public confidence by showing that its going on high alert on the Anglo Leasing matter shortly after the visit to its Executive Director by the British Secretary for International Development is sheer coincidence. The Commission is reminded that its poor record of prosecution of persons suspected of corruption is not lost on Kenyans.

The Commission will also need to show that fears that some persons implicated in the scandal but who are known to be long term associates of the Executive Director will be immune to investigation and prosecution are totally unfounded. Finally, the Commission will need to apply the same vigour and zeal as was applied by its Executive Director when he headed the Committee on Corruption in the Judiciary during the judiciary’s purge. The sword of justice must truly be seen to cut both ways.

With regard to the uncovering of the truth, measures will need to be put in place for those who may have information of relevance to the investigations to give such information without fear. As a starting point, the Githongo report will also need to be made public. The government must also seize this opportunity to revisit Goldenberg and other scandals and deal with persons implicated in them decisively.

Finally ICJ takes issue with the apparent attempt by the Cabinet to downplay the Anglo leasing scandal and to try and portray the fight against corruption as political witch hunting. While some Cabinet Ministers have quietly refused or neglected to be party to such machinations, ICJ urges boldness on their part to come out categorically and dissociate themselves with any attempt to corporately undermine the fight against corruption. The established practice is that where an allegation has been made against any member of a corporate group, that member should step aside to facilitate investigations. If the President does not suspend the implicated ministers, the cabinet should rise to the occasion and ask them to step aside.
Related to this, Government is reminded that, as things stand, a great majority of the public does not ideologically identify with the majority of members of the cabinet who were appointed after the referendum held on 21st November 2005 and it must not take this self-evident truth for granted. Government should read the signs of the times: that there is a grave danger that public confidence in it will be completely eroded, leading to a breakdown in the rule of law, and a collapse of democratic institutions. Being seen to be shielding powerful personalities from investigation and prosecution will only serve to increase public resentment, and may ultimately lead to anarchy. Everything humanly possible to restore the lost confidence must therefore be done. This calls for decisive action against all those implicated in the various scandals. Kenyans deserve and demand no less.

Wilfred Ngunjiri Nderitu Samuel Mbithi
Chairman, ICJ Kenya Executive Director, ICJ Kenya

2005 Jurist of the Year Award

DECEMBER 8, 2005

PRESS RELEASE

TO THE NEWS EDITOR

The Kenya Section of the International Commission of Jurist, ICJ (K), would like to invite you to the 2005 Jurist of the Year Award (J.O.Y.A.) ceremony on Friday, 9th December at the ICJ (K) office premises on Vihiga Road, Kileleshwa starting 6.00 pm. The function will be presided over by the Finnish Ambassador, His Excellency Mr. Matti Kaarainen.

The 2005 award ceremony comes at a time when the country has just recently concluded its historic exercise of democratic space that was occasioned by violation of human rights and the rule of law. It is also during this year when Kenyans witnessed attempts to curtail human rights to meaningful life. Amidst all these there is a Kenyan who through out the year consistently and tirelessly gave the voiceless a chance to be heard and reason to exercise there human rights.

This year will mark the 13th J.O.Y.A ceremony. The Award honors persons who, in the opinion ICJ (K) members, have shown exemplary commitment to the protection and promotion of human rights, democracy and the rule of law. Former recipients include Hon. Mirugi Kariuki, Hon. Martha Karua, Mr. Pheroze Nowrojee, and Ms. Rachel Omamo amongst others.

Please join us as we crown our 2005 Jurist of the Year.

For more information please call ICJ (K) Tel: 387590, 6750996
Email: info@icj-kenya.org

Sincerely,

Samuel Mbithi
Executive Director

STATEMENT ON THE REFERENDUM VIOLENCE

14th November 2005.

The Kenya Section of the International Commission of Jurists is disappointed by the escalating violence that has rocked referendum campaigns lately. We condemn this violence and especially the swiftness of the police to shoot to kill. Only two weeks ago, the police shot dead four people in Kisumu. This weekend media reports indicate that five people were shot dead, four in Mombasa and one in Nandi Hills. Death of unarmed civilians attending campaign rallies is unacceptable not in the least when it’s occasioned by live bullets fired by police officers charged with protecting lives.

The rising political temperature and insinuations that the police can use lethal force on unarmed citizens and get away with it has contributed largely to the police killings in the current referendum campaigns. If the police are not called to account for their actions now, we will slowly be re-opening a chapter of police brutality and extra-judicial killings that many wish remain only part of our dark past. It is regrettable that reforms in the police force that were only beginning to bear fruits should be undermined by the same people who are supposed to oversee them.

While the police have a responsibility to uphold the rule of law, they must do this within the law and exercise restraint in suppressing public violence. The reason why the police go through elaborate training in handling different circumstances is so as to instill vital and professional skills on how to discharge their duties without resorting to killing or destroying property.

The ICJ urges politicians to desist from utterances that tend to incite people to violence. It is irresponsible for politicians to reduce an important national process like constitution making into a contest of popularity. This has regrettably robbed this country of an opportunity to soberly determine its constitutional destiny. Politicians must preach peace and unity and shift from divisive politics.

We once again call upon the police to desist from using live bullets in the name of containing campaign violence in the referendum campaigns. ICJ also eagerly awaits the results of the police inquiry on the Kisumu killings that was instituted by the Commissioner of Police a fortnight ago.

Samuel Mbithi
Executive Director

STATEMENT ON THE KILLINGS IN KISUMU

STATEMENT ON THE KILLINGS IN KISUMU

The Kenya Section of the International Commission of Jurists condemns in the strongest terms possible the continued and increasing incidences of violence in the Referendum campaigns. In particular the ICJ is angered by the violence that rocked Kisumu city over the weekend that left four people, including a 14 year-old schoolboy, dead, all killed by bullets fired by Policemen.

In the absence of clear and cogent evidence as to the necessity of the use of live ammunition it is clear that further investigations an inquiry is necessary to determine allegations that the police unlawfully used live bullets on citizens. We believe the police acted against internationally accepted use of force standards and against known tenets of freedom and democracy that Kenyans have been agitating for over the years. These standards centre on the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. At their heart is the principle of what constitutes legitimate force. Whereas the police may use force, the force used must not be arbitrary; it must be proportionate, necessary and lawful. It must only be used in self-defence or against the imminent threat of death or serious injury.

ICJ is not satisfied that these internationally accepted principles, also incorporated in the Kenya Police Force Standing Orders on the use of force were observed in Kisumu. The press reports and testimonies of those present and the explanation of the Commissioner of Police that those shot were hooligans who had raided Kondele Police Station make a public inquiry necessary to unravel the circumstances that led to the killings. There are allegations that some of those killed or injured were shot from the back, which can only mean that they were fleeing from the police. The 14 year-old primary school pupil, Paul Mwela, was shot on his head, which makes it difficult to believe the Commissioner’s explanation that he was killed by a stray bullet.

ICJ recognizes the responsibility of the police to uphold law and order, and in no way condones violence by citizens. We however find the attempt by the Police Commissioner to explain away the killings without proper investigations misguided and regrettable. We are worried at the possibility that the special police forces were deployed to maim and kill!

The ICJ finds the explanation inadequate and condemns the police for using excessive force ostensibly to restore order in Kisumu. The use of live bullets, despite reports indicating that the police had express instructions not to use them needs to be explained more cogently. This warrants thorough and prompt investigations. The justification of the actions of the police by the Commissioner of Police is worrisome, especially coming immediately after the killings and in the absence of investigations independent of police authorities in Kisumu who might be interested in distorting the truth. This justification makes it difficult for the police to be relied upon to conduct credible investigations for fear of contradicting their Commissioner who has already pleaded their innocence. It pre-empts any finding of fault within the administrative structure of the police force.

We therefore ask the Kenya National Commission on Human Rights and the Attorney General to immediately launch a fair and full-scale inquiry. Where criminal culpability can be proved, those responsible for misuse of firearms should be arraigned in court or disciplined accordingly. If the KNCHR, the AG and the police do not take concrete action, the ICJ will resort to both municipal and international mechanisms to secure justice for those aggrieved by the irresponsible actions of the police.

The police must exercise restraint and use their professional training to keep the peace. They should not use firepower on unarmed citizens. The events of Kisumu and the utterances of politicians on the eve of the killings, put the police on the spotlight.

The ICJ urges a swift public inquiry into the killings and steps to avoid the same in the future.

____________ ____________

Otiende Amollo Samuel Mbithi
Chairman Executive Director

1st November 2005.

USE OF PUBLIC RESOURCES FOR CAMPAIGNS IN THE REFERENDUM

PRESS RELEASE ON THE USE OF PUBLIC RESOURCES FOR CAMPAIGNS IN THE REFERENDUM

22nd September 2005

The Kenyan Section of the International Commission of Jurists is alarmed by news appearing in the media today the 22nd September 2005 (Daily Nation, Page 4; Ministers may use State vehicles, declares Mutua) attributed to the Government Spokesperson, Dr. Alfred Mutua. He is quoted as saying that “the review is a government process and any use of official transport should be viewed as official Government Business”. This position is not only misleading but illegal. Either Dr. Mutua had no benefit of legal advice from the Attorney General or the latter or both are in breach of the law requiring them not to knowingly give false or misleading information to members of the public or any other public officer (Section 19, Public Officer Ethics Act).

First, it is misleading to say that the review process is a government process. The review process is a process of the people of Kenya and government is only a facilitator. Government can only facilitate the process strictly under the law. Campaigning for or against the proposed new constitution of Kenya goes beyond what government can legally and legitimately appropriate public resources for.

Secondly, members of the cabinet have taken diverse positions and it would therefore be misleading to say that there is a government position on the matter. In fact it would be inappropriate for government to have a position as it would compromise the integrity and outcome of the referendum. When the president stated his position, quite inappropriately and said he would lead the Yes campaign, the official position was that he was doing so in exercise of his democratic right as a Kenyan and as a Member of Parliament. Likewise positions taken by Cabinet Ministers are not official government positions but private positions taken by private persons. State resources cannot therefore be used otherwise than to facilitate the referendum through allocations to the agencies charged with the conduct of the referendum, the Electoral Commission of Kenya and the Constitution of Kenya Review Commission and provide security to the public and other commonwealth services that do not depend on political affiliation or any other status. Any other expenditure including furthering either of the two antagonistic positions cannot be a public function and to appropriate resources in this respect would be offensive to the spirit and provisions of the Public Officer Ethics Act.

The referendum is a political process replete with campaign, lobbying and persuasion. Cabinet ministers and other public officers for that matter are not at liberty to appropriate state resources to further their yes or no agenda in the referendum. The Government Spokesperson should therefore correct the position and desist from misleading the public. The Director of Public Prosecutions should act as appropriate whenever the law is broken irrespective of the parties involved.

SIGNED:

__________________________
Samuel Mbithi
(Executive Director)

HON MIRUGI KARIUKI'S UTTERANCES

PRESS STATEMENT ON UTTERANCES ATTRIBUTED TO HON MIRUGI KARIUKI, MP, AND ASSISTANT MINISTER, OFFICE OF THE PRESIDENT

Date 13 September 2005

ICJ Kenya is alarmed by reports appearing in the media (12th September 2005, Daily Nation, page 3) attributed to Hon. Mirugi Kariuki, M.P. for Nakuru Town and Assistant Minister in the Office of the President. The Minister is reported as having said that Hon. Kalonzo Musyoka’s case of contempt of court could be revived if he continued to campaign for a No vote. He is quoted as having said that Hon Musyoka is “still a convict until the jail term is quashed by the Court of Appeal. If the appeal is dismissed, it could mean the minister is automatically sent to serve the sentence” Hon Mirugi Kariuki is further quoted telling Hon Kalonzo to tread cautiously and stop spreading falsehood against President Kibaki. He is quoted saying “Tukitaka kifungo chake kianze mara moja, kinaweza kuanza sasa” (If we want his jail term to commence immediately, it could start now).

ICJ Kenya finds the statements of Hon Kariuki worrying at a time when the country is re-engineering itself through constitution-making to guarantee the rule of law democracy and human rights. Of immense concern to us is the insinuation from the minister that the Judiciary is amenable to his (read Executive) manipulation to achieve political ends. This interference with the judicial process is one of the factors that led to the agitation for a new constitutional dispensation that would safeguard the judiciary from executive interference. As Kenyans fight for an independent, accountable and corrupt-free judiciary, we find it unfortunate that Jurists of Hon Kariuki’s ilk would make such utterances at all. Equally worrying is the spirit of his utterances. They are reminiscent to the single party era when citizens would be detained without trial for opposing the president and the ruling party.

Hon Kariuki has a rich history of fighting for human rights and is himself a former political detainee. He has represented many victims of disregard for the rule of law by former regimes with admirable courage and determination. It was this stature that he had curved for himself that ICJ Kenya honored him with the Jurist of the Year Award in 1996. It is therefore shocking, irresponsible, reckless and regrettable that a person known as a firm believer in the rule of law would today turn around and openly trash the same law that he ran to for protection of himself and his clients and extol executive interference of the judicial process for political expediency. His utterances confirm that the rule of law in this country is under threat from the same people who are supposed to uphold and protect it.

Within the government, Hon. Kariuki ought to be a leading light in extolling the virtues of rule of law democracy and human rights and cautioning on the danger and folly of undermining these ideals and the independence of the judiciary for political purposes. The ICJ condemns his utterances in the strongest terms possible and urge Hon Kariuki to desist from actions or utterances that undermine the rule of law and the independence of the judiciary and prosecutions, and the confidence of the Kenyan populace in the justice system of this country.

For one to be recognized by the ICJ Kenya as a Jurist of the Year, he or she must be a person who has made considerable contribution to the advancement of the ideals of ICJ Kenya, rule of law, human rights and democratic governance in Kenya. He or she should be honourable and distinguished whose election draws inspiration and encourages others to champion the aforementioned ideals and must have consistently demonstrated exceptional courage and determination in upholding the rule of law, human rights and democratic ideals even at the risk of punishment, deprivation, loss of personal liberty or life, a person of unquestionable integrity, honesty and a leading example in society.

We find Hon Mirugi’s utterances inconsistent with the above ideals and unless he desists from utterances and actions that undermine the ideals for which ICJ Kenya recognized him as the Jurist of the Year in 1996, the ICJ Kenya might be constrained to withdraw the award from him. ICJ Kenya will not put the tag of ‘Jurist of the Year’ on a person who in its opinion has engaged in activities which undermine its ideals, human rights, the inviolability and integrity of the human person, the rule of law or democratic principles.

SIGNED:

______________________________

Samuel Mbithi
Executive Director

ICJ'S POSITION ON THE PROPOSED CONSTITUTION AND THE REFERENDUM

THE POSITION OF THE KENYAN SECTION OF THE INTERNATIONAL COMMISSION OF JURISTS ON THE PROPOSED CONSTITUTION OF KENYA AND THE REFERENDUM

Dated 7th September 2005

For over 15 years now, Kenyans have been agitating for a new constitutional dispensation. This was out of a realization that we as a people needed to define our existence as a nation and craft a structure of government that would unify and serve us for posterity.

In seeking to develop a way forward towards the achievement of the above ideals, ICJ Kenya organized a workshop with representation from members of parliament, civil society, government agencies and the academia to interrogate the issues in the month of June 2005. Five options on the way forward emerged.

First was to proceed with the process, as it is currently pursuant to the Constitutional Review Amendment Act. This option presents pitfalls that have to be addressed.

Secondly was to abandon the entire process and start afresh. This would begin with the amendment of section 47 of the current constitution and the disbandment of the CKRC as currently constituted. All materials developed towards the review would inform the new process, including the Bomas Draft.

Third was to abandon the entire process until an opportune time. The thinking behind this option was that the constitutional moment has passed and needs to be recreated.

The fourth option would be to abandon the current process as it is and revert to the post-Bomas but pre-Njoya decision, and repeal the CKRC Amendment Act. The Attorney General would then submit to parliament the Bomas draft. Flaws in the draft would then be amended as provided for in the draft.

The fifth option identified was the possibility of constituting a technical committee to examine the Bomas Draft to address the juristic issues and editorial shortcomings. The committee would not interfere with the substantive provisions of the draft.

In recent times, the Attorney General has published the proposed New Constitution of Kenya. The publication of this draft has created much acrimony and divisions in many sectors of the society. The Electoral Commission of Kenya has developed rules for a referendum to be held on Monday, 21st November 2005, while the Constitution of Kenya Review Commission reports its readiness to commence civic education nationally in within the next two weeks. Notably, this has not been without differences of opinion even within those bodies.

The stage is set for potentially acrimonious disagreements between the protagonists for a ‘YES’ vote and those of the ‘NO’ vote.

ICJ Kenya considers this an unfortunate development. It is regrettable that constitution making in Kenya has descended to a simplistic level of just voting yes or no on a document that could easily form the basis for a new constitutional dispensation. Such a simplistic reduction of the issues coupled with extreme politicization of the process has set the stage for polarization of the Kenyan populace. A wall seems to have been created and is now being fortified separating the two opposing camps. This wall cuts through families, communities, political parties and religious bodies among others. It has degenerated into “us” versus “them”. One would have expected that a process of self-examination and self-definition would be uniting for Kenyans and not polarizing.

Content of the Draft

The Wako Draft contains many progressive provisions and many that are not contentious by any standard. On the other hand, it contains some provisions that are very contentious and divisive. The challenge in this phase of constitution making is to isolate and safeguard the many non-contentious issues while subjecting the contentious issues to further discussions and referendum.

Unfortunately, there is a law that requires a new constitution by 12th December 2005. While the constitutionality of this process has been questioned and even challenged by several cases that are still pending in court, time is running fast towards the referendum in November.

ICJ Kenya recommends that the referendum be deferred as proper rules are developed to accord Kenyans real choices and forestall the possibility of Kenyans rejecting the full draft or accepting it with retrogressive provisions.

The Referendum

The ICJ Kenya recognizes the centrality of a referendum to allow Kenyans determine the kind of constitution they want. We however take issue with the mode and manner in which this proposed referendum has been conceptualized. This conceptualization has a real potential of throwing out the many progressive provisions in the draft. It does not put to test the core issues of contention in the public arena. It offers no real choices for Kenyans. It inevitably leads to the fact that as long as a person is unhappy with any provision in the draft, he/she must reject the whole draft.

In our opinion, it would have been more prudent to isolate the contentious issues and only subject those to a referendum where people vote several times on each of the contentious issues.

The current formulation of the referendum is simplistic, divisive and deceptive.

Civic Education

Civic education is supposed to start in the next few days. The atmosphere however seems too poisoned for objective civic education to be conducted. The CKRC is already divided, with accusations of adversarial positions already taken by commissioners. Besides, the paucity of copies of the Draft Constitution, coupled with the unrealistic timeframe for civic education (14 weeks), in our view, marched with the number and capacity of civic education providers available, jointly present a situation where Kenyans will go to vote without knowing what they are voting for!

The code of conduct for civic education and the guidelines for the referendum should be enforced stringently. Unfortunately, neither the CKRC nor the Electoral Commission of Kenya has the capacity to enforce the code and guidelines against contravention. In fact, politicians and other groups have already hit the campaign trail and taken positions, some of which are either ill-informed or outright falsehoods! The implication of this is that objective civic education will not be possible as different interest groups seek to drum support for adoption or rejection of the entire draft.

The ICJ Kenya calls upon all actors in this process to go back to the drawing board and through a process of dialogue develop a system of enacting a new constitution. We firmly believe that it is not too late to amend the Constitution of Kenya Review Act to defer the referendum and accord dialogue a chance. This amendment should also extend the time available for civic education.

Unless the process of review as is currently conceptualized is arrested, it is certain that Kenyans will not get the kind of constitution they were yearning for. The time and resources appropriated for the process will have gone to waste.

We implore the President, Parliament and the political leadership to pause, rethink and re-assess the process in order to give Kenyans a real possibility of having the type of constitution they have yearned for for years. If our advice is not heeded, we shall, sadly, advise Kenyans to reject the draft and continue the demand for the constitution we want.

SIGNED:

Otiende Amollo Samuel Mbithi
(Chairman) (Executive Director)

DRAFT FOI BILL, 2005

ICJ KENYA’S PRESS STATEMENT ON THE DRAFT FREEDOM OF INFORMATION ACT 2005

11TH AUGUST 2005

Democracy thrives best in an atmosphere of trust, openness and accountability. The right of citizens to access information held by government and local authorities makes government more accountable for its decisions and actions. Clear legislation is necessary to enforce this right. In Kenya, this right is not adequately provided for and can only be inferred from a general reading of section 79 of the constitution which unfortunately has a number of clawback clauses. This is exacerbated by the Official Secrets Act, a colonial relic that criminalizes disclosure of information by public officials. In a study conducted by ICJ Kenya in 1999, it was concluded that Kenyan legislation does not secure freedom of information.

The right to information underpins all other human rights. The United Nations’ General Assembly in its inaugural session in 1946 adopted resolution 59(1) which stated that freedom of information is fundamental human right and the touchstone of all the freedoms to which the United Nations is consecrated. The United Nations Security General opined that:

“The great democratizing power of information has given us all the chance to effect change and alleviate poverty in ways we cannot even imagine today. Our task, your task…is to make that change real for those in need, wherever they may be. With information on our side, with knowledge a potential for all, the path to poverty can be reversed.”

The right to access information is codified in Article 19 of The Universal Declaration of Human Rights adopted and proclaimed by United Nations General Assembly resolution on 10 December 1948. Similarly Article 19 of the International Covenant on Civil and Political Rights which entered into force on 23 March 1976, to which Kenya is a party, provides as follows:-
Everyone shall have the right to hold opinions without interference
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice

The African Charter on Human and Peoples’ Rights adopted by the Organization of African Unity and which entered into force on 21 October 1986 also enshrines the right in Article9:

Every individual shall have the right to receive information
Every individual shall have the right to express and disseminate his opinions within the law

The Government by virtue of having ratified the ICCPR and the African Charter is bound to implement its provisions. In a country that is ravaged in rampant poverty, information would be an essential tool to fight this vice. It is worth mentioning that countries with good information regimes have reported minimal deaths as a result of hunger.

NARC pledged to fight against corruption and to allow access to information held by the Government. A good Freedom of Information law will provide a framework to fight corruption. It will create and foster the spirit of openness in all government dealings and create a forum for the people of Kenya to question the workings of the government.

The President of the Republic of Kenya, H. E. Mwai Kibaki, at the 2005 International Press Conference acknowledged the need to legislate the right to information. He promised the entire world that his Government will pass the Freedom of Information Act in Kenya.

ICJ-Kenya applauds the Government for preparing the draft Freedom of Information bill through the Ministry of Information and Communication however ICJ-Kenya regrets that the official legislative process of promulgating the same into law has not begun.

The right to access information is provided for in the Draft Constitution. After constitutional protection is specifically extended to the right under the new constitution, legislation is needed to effectively operationalise the right. Irrespective of when and whether we shall have a new and access to information friendly constitution we urge the Government to pass legislation favourable for accessing information.

It is disheartening to note that the Parliamentary Select Committee has sought to provide exceptions and clawback clauses to the right to information as provided for in the Bomas Draft. ICJ-Kenya calls on the Government not to water down the right to access information and demands that the provision is left as it is in the Bomas Draft Constitution.

ICJ-Kenya notes that the Government’s draft is more than 6 months old but the same has not been published by the Government printer. ICJ-Kenya is concerned that little is known of the status and fate of the Government Draft Freedom of Information Act 2005. The said draft has been posted on the Ministry of Information and Communication website (www.information.go.ke) since January 2005. ICJ-Kenya in this regard, calls upon the government to publish the said Draft Freedom of Information bill immediately and prioritize its promulgation to law.

ICJ-Kenya calls upon the Government to consult widely with the public and other key stakeholders before the draft bill is finalized and tabled in Parliament so as to avoid having a Restriction to Information Act as is the case with the Official Secrets Act. Participatory law-making process can be a major factor in laying a strong foundation for an effective right to information regime. International best practices require that officials proactively encourage the involvement of civil society groups and the public in the legislative process. Publication of the Government Draft Freedom of Information Act 2005 will open the said draft to the public to comment on it.

OTIENDE AMOLLO
CHAIRMAN

LAND ISSUES

A PRESS STATEMENT BY THE KENYAN SECTION OF THE INTERNATIONAL COMMISION OF JURISTS ON THE REPOSSESSION OF ILLEGALLY/IRREGULARLY ACQUIRED PUBLIC LAND

July 6, 2005

The Kenyan Section of the International Commission of Jurists (ICJ Kenya) is dismayed by the circular issued by the Permanent Secretary, Ministry of Lands and Housing directing government departments and institutions to move and unilaterally repossess land allegedly acquired illegally. The ICJ Kenya condemns the NARC government for its singular disregard for the rule of law and due process. Due process in law is as important as the substantive rights that it seeks to establish.

The ICJ Kenya supports the repossession of illegally acquired land and the protection and rehabilitation of national forests. This exercise however should be executed within the law. ICJ Kenya considers that repossession of illegally or irregularly acquired land should follow due process informed by official policy and executed with regard to the Law. It is in the interest of government that the law be upheld and respected. Government stands to loose most in a state of self-created anarchy. It is inexcusable for Ministers of Government to continually and with impunity disregard Court orders, without even a reprimand from his Excellency President Mwai Kibaki who swore to uphold the constitution and the law of the land. This sets bad precedent especially in the area of rights to land where communities historically aggrieved by colonial and post-independence repossession may feel justified to disregard due process and move in to occupy private land on the strength of
- 2 -
careless directives from Government Officials. Indeed, the Orders portend a Zimbabwe-like situation, where masses may be left to determine what was their land, even if it dates back 100 years!

The ICJ Kenya is further concerned that the Government, through the Ministry of Lands, has adopted unlawful means in seeking to evict Kenyans from the Mau forest. While we agree in principle on the need to protect our forests and the environment generally, it is unacceptable for government to mobilize its forces to burn property, including schools in order to evict persons with Titles lawfully obtained in gazetted forests. Government must in all its endeavors adopt a rights based approach that upholds the primacy of the law, the dignity of peoples, and set a good example for citizens to emulate. If government descends to such low levels, nothing will prevent aggrieved citizens from sinking even lower in the expression of their legitimate or even illegitimate land grievances?

ICJ Kenya demands that the Government devices a process of repossessing illegitimately acquired land and communicating the same to the public. Improper Land acquisition has dogged this nation since independence and to cede the responsibility of repossession to citizens and the provincial administration is an act of irresponsibility on the part of government. Part of the government’s function is to maintain law and order and not to undermine it. Like all other legal persons, the Government must appeal decisions that it feels dissatisfied with, and thereby express confidence in the court system so as not to undermine the judiciary and the rule of law. The courts on their part should defend the integrity of the judiciary by taking action against those who disregard its orders. In this regard, we call upon His Excellency the President; Hon Mwai Kibaki to rein in his cabinet ministers and ensure the rule of law is upheld.

Otiende Amollo
Chairman

SACKING OF MAGISTRATES

PRESS RELEASE: Released on 16th June 2005

ON THE SACKING OF MAGISTRATES WHO PURPORTEDLY PARTICIPATED ON THE STRIKE DEMANDING BETTER WORKING CONDITIONS

The Kenyan Section of the International Commission of Jurists condemns the action taken by the Judicial Service Commission in relying on press reports to selectively sack magistrates who are said to have gone on strike in March this year understandably protesting against poor working conditions and demanding a pay rise. The action by the JSC is not only discriminatory and inappropriate but is meant to intimidate judicial officers and also to silence them in the fight for better terms and is in total disregard of the plight of the officers. This is further compounded by the fact that the press reports had indicated that many of the stations were affected yet only a handful were interdicted and subsequently sacked.

The sacking of these magistrates speaks the language of power to other magistrates serving in Kenyan courts. This action of sacking the magistrates has precipitated a crisis of access to justice for citizens in this country. By the power of sacking, the judicial administration has chosen to treat demand for judicial reform as a disciplinary matter, and a reason to intimidate magistrates and junior judges. ICJ Kenya calls upon the Kenya Magistrates and Judges Association (KMJA) to rise to the occasion and defend its members from such discrimination and intimidation

What the sacking reveals is a judicial administration that is unwilling or unable to face up to its own failures. By silencing internal voices for reform, even when they use legitimate channels, this judicial administration equates magistrates’ publication of their terrible working conditions, which the administration does not deny, with media and public incitement. The magistrates have