kenyan legal magazine issue #4
TRANSCRIPT
Volume 1, Issue 1
Newsletter Date
Special points of
interest:
Briefly highlight your point of interest here.
Briefly highlight your
Volume 1, Issue 1
Newsletter Date
Special points of
interest:
Briefly highlight your point of interest here.
Briefly highlight your point of interest here.
Briefly highlight your point of interest here.
Briefly highlight your point of interest here.
Volume 1, Issue 1
Newsletter Date
Special points of interest:
Briefly highlight your point of interest here.
Briefly highlight your point of interest here.
Briefly highlight your point of interest here.
Briefly highlight your point of interest here.
WHAT WOULD HON. NJOKI
NDUNG’U DO?
Rise of sexual violence
also inside
Abortion in Kenya;
illegal or is it?
The Doctrine Of
Quantum Meruit In
Employment
Terrorism And
Religious Tolerance
What Does Our Kenya Police Force Really Need?
elcoming you to the fourth issue
of The Kenyan Legal Magazine. I,
on the Kenyan Legal Team's
behalf wish to express our appreciation for your
continued support.
Kenya is largely a partriachial society and has
long given justifications to sexual and gender
based violence towards; it has always been the
woman's fault even when bestiality is the
subject matter at hand. Even though its well
known that a woman is her own enemy, on
mention of such violence the first person that
always comes to mind has always been The Hon.
Lady Justice Njoki Ndung'u, the architect behind
the Sexual Offences Bill, now Sexual Offences
Act, 2006, introduced to parliament as a private
member bill with an objective "to make
provision about sexual offences, their definition,
prevention and the protection of all persons
from harm from unlawful sexual acts and for
connected purposes", so when we hear of cases
like three men accused of raping a 16 year old
school girl and dumping her body in a latrine
were ordered to cu grass as punishment, we ask,
"WHAT WOULD HON. NJOKI NDUNG'U DO?"
This issues, therefore as always, comes as an
improvement from the previous issues for we
believe, at Kenyan Legal, that engaging the
coming generation of legal minds in governance
and legal discussions affecting the country is
what shall move this country forward.
Its Real Kenya, Real Issues. Enjoy your read.
REGARDS,
Michael
Michael Opondo O.
Managing Editor,
KENYAN LEGAL
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CONTRIBUTORS
Gabriel Pelu, J.K.U.A.T School of Law, Victor Kiamba, Advocate of the High Court, Victor Kaula, Moi School of Law Samuel Onyango, Riara School of Law Barbara Wambui,K.U.S.O.L Caren Kerubo, K.U.S.O.L Otieno Arnold O., K.U.S.O.L Michael Opondo O., K.U.S.O.L
Cover photo by:
Hon. Lady Justice Njoki Ndung’u,
Judge at The Supreme Court of
Kenya
Courtesy of Kenya Law Reports
www.kenyalaw.org
Whilst every effort has been made to ensure the accuracy of the information in this magazine, the
authors, publisher and editor accepts no responsibility for any loss, financial or otherwise by any
person using this publication.
Copyright © 2014 by Kenyan Legal
All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in
any form or by any means, including photocopying, recording, or other electronic or mechanical
methods, without the prior written permission of the publisher, except in the case of brief
quotations embodied in critical reviews and certain other noncommercial uses permitted by
copyright law. For permission requests, write to the publisher, addressed “Attention: Permissions
Coordinator,” at the address [email protected] or [email protected]
Copyright protected by:
Creative Commons 2014
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Inside this Issue
Ask About Law ................................................................................................................................. 6
Africa Against Gayism, The West Against Polygamy; A Perfect Balance ................................ 10
The Doctrine Of Quantum Meruit In Employment .................................................................... 13
Need To Modernize The Kenyan Theft Law ............................................................................... 15
What Does Our Kenya Police Force Really Need? ...................................................................... 17
Abortion In Kenya, Is It Legal Or Not? ....................................................................................... 21
Prosecution Appeal Against The “Decision On Mr Ruto’s Request For Excusal From
Continuous Presence At Trial” ............................................................................................................ 24
Judiciary Watch ............................................................................................................................. 24
Courtesy: Www.Kenyanlaw.Org .................................................................................................... 24
Carla’s Diaries ................................................................................................................................ 28
The Publication Team .................................................................................................................... 29
Ask About Law
W i t h B a r b a r a W a m b u i
For all your Legal
questions Questions…
Sexual Offences Dear Barbara,
I am a single parent residing in Busia County. Of recent, sexual assaults have been rampant on this side
and unfortunately my 13 year old daughter was the latest victim to a 21 year old neighbor's son. I had
all the necessary steps and tests conducted on her and she's safe so far but problem is, the neighbors
on getting the seriousness of the matter want us to settle this issue outside court. I have enough
evidence to my belief, stained clothes and doctor's reports for a successful legal pursuit. Is it a legally
good idea to settle such matter outside court and what should I look out for in case I decide to do so?
Via Mail,
Mary Nembu
Dear Mary,
Legally it is not a advisable to settle a criminal case outside court. Criminals need to be punished by law
so that they are detered from committing the crimes that they do. With sexual assault especially with
minors, it is a serious crime. Punishable by imprisonment for minimum of 10 years.
The fact that it is rampant in your area of resident, all the more reason why you should take the matter
to court and have it stopped. this may even encourage other residents to do the same.
You also need to keep in mind that the accused is your neighbor and he could very easily harm you or
your daughter if he is not detained or imprisoned.
Land Purchase
Dear Barbara,
Its has been in my interest to purchase land here in Nairobi for a long time and finally am getting closer
to it. With high rates of scams involving Land Purchase, what precautions and steps do I take to avoid
being a victim?
Sincerely,
Ken Witu
Nairobi.
Dear Ken,
It is true that there has been fraudulent acts in the land sector in the country for a long time...since
independence.
The following steps need to be taken to avoid this:
1. Identify the piece of land that you wish to purchase. Ensure that the beacons of the land are cleared
marked. (in many places there are no beacons, especially ancestral land).
2. Perform an official search of the piece of land at the District Lands Office or the Ministry of Lands
(Ardhi House) depending on whether the Title Deed of the subject land is registered under the Land
Registration Act (LRA) or Registration of Titles Act (RTA) respectively. If the LRA, the search can only be
done at the District Office or counties and if it’s RTA, it can be done at the District Office or at Ardhi
House.
3. To Perform the Official Search, you will need a copy of the title deed of the land and you must fill the
search application form and attaché the title.
In most District (counties) Land Offices, copies of your ID and Pin Certificate are required. You shall be
required to pay Kshs 100 fee for the process*. A search should ideally confirm that:
a. The person selling the land to you is the legal owner.
b. The land has no encumbrances that may include a charge by the bank, a caveat restricting sale of the
land amongst other issues.
If all the above is positive, then proceed to the next stage. 3. In cases where the land is registered under
Registration of Titles Act (RTA), Obtain Rates Clearance Certificate from the Local Municipal Council and
Land Rent Clearance Certificate from the Commissioner of Lands. Seller’s lawyer ordinarily obtain the
Rates Clearance Certificate from the Local Municipal Council and costs KES 2500*.
4. Your Lawyer can proceed and prepare a sales agreement with the seller’s lawyer. The deposit can
then be paid to the Vendor.
5. Next the vendor must prepare all the completion documents to ensure a proper transfer.
6. The remaining balance is paid only at the exchange of the Completion documents. Your lawyer should
confirm that the documents are authentic and must certify the documents before presentation to the
relevant Lands Registration Office
7. File the draft transfer document(s) (i.e. completion documents) at the Lands Office for assessment of
stamp duty payable on the transfer.
8. Now that the draft transfer form has been filed at the land office, an inspector visits the site to verify
the development and state of the property.
9. Next is the payment of the Stamp Duty tax. The fees are 2% or 4% of the Value of the land depending
on whether the land is within or outside the Local Municipality. The Value of the land used to calculate
the stamp duty is given by the government valuer which may not necessarily be the same as the
purchase value. Stamp duty is paid by depositing the amount in an account provided by the Land’s
registry office. It is mandatory to pay the stamp duty using the above mode.
10. The registration is done with issuance of a new Title deed (for freehold tenancy) or Certificate of
Lease (Leasehold tenancy). The buyer’s lawyer or the buyer then collects the Title Deed at the Lands
Office.
Contracts for the sale of lands or any interest in them must be in writing. Oral contracts for the sale of
real estate are generally not worth anything. - See more at:
http://www.ockadvocates.com/2013/01/contracts-that-must-be-in-writing-to-be-enforceable-in-
kenya/#.Ur094PsrzrQ
Keep in mind that all contracts for the interests in land have to be in writing. Oral contracts are not
worth anything in this country.
Contracts for the sale of lands or any interest in them must be in writing. Oral contracts for the sale of
real estate are generally not worth anything. - See more at:
http://www.ockadvocates.com/2013/01/contracts-that-must-be-in-writing-to-be-enforceable-in-
kenya/#.Ur094PsrzrQ
*value might be diff.
Contracts for the sale of lands or any interest in them must be in writing. Oral contracts for the sale of
real estate are generally not worth anything. - See more at:
http://www.ockadvocates.com/2013/01/contracts-that-must-be-in-writing-to-be-enforceable-in-
kenya/#.Ur094PsrzrQ
For any questions, clarifications concerning Law please write to Barbara at [email protected] with
reference of “Dear Barbara” and will be published in the next magazine issue.
Review and debate
section
Legal Discourse With Michael Opondo O.
Africa Against Gayism, The West Against
Polygamy; A Perfect Balance t’s easier to kill a Shakespeare than kill a Sonnet; simply meant is that it is much easy to kill a person but to kill what the person stood for is near impossible. Different human beings come up to form a society, and therefore with this reference, every society is unique, and respect to this uniqueness is
deeply wedded in systems built on a democratic polity. In extension, respect for this democracy is what civil decency entails; I call for decency in all bounds here within. The most recent coming out of a prolific writer, whose reputation is unquestionable in the Literal field could be as opening a can of worms but in the Kenyan spirit, these things come and go; 'oh so he's gay, let’s move on'. The quest for gay 'rights' recognition in Africa is not all about Human rights but rather a matter of cultural activism, so the Human rights activists can as well go fly their own kites. Cultural activism, according to Ayn Rand, means actively promoting rational ideas through the culture...all for the purpose of bringing about a cultural renaissance grounded in the need for social justice and political change, while Human rights activism is action to promote or protect some variation of human rights, but being that the standard of Human Rights has always been of the Western world as African's would be 'primitive' and 'backward' in effect, it’s a perfect cloud of confusion for them to advocate for their "culture" as what?, Human Rights? I am of the belief that Gayism is a matter of choice and not genetics (sic) or sorts. If it is so then polygamous African men are also wired to be so? So it’s not by choice? When the late Akuku Danger went on a marriage spree then for instance one of his sons becomes a monogamist, my little science questions where that some got that "bad" gene from? or where did the "good" original gene get lost to? so its not genetic but choice. On the verge of "trying new things" and keeping up to date, the Western culture discovered that same-sex relations can actually work, and the gene card had to be played, spread the word to our African "Brothers" and "Sisters" in the feared and respected name of Human Rights, let them try our new culture and stay up to date (or be labeled as backward and retrogressive). Stating that African History is also scattered with instances of Gayism is like comparing Martyrdom to Terrorism/Suicide bombing; looks same but very different. To my African Brothers and sisters alike purporting to support Gayism et al, our opinions are not as important as what we value; because many people who differ in opinion share values. Africa values nature as male for female; keep your opinions, embrace the new cultures (Wow! its from the western world!), but deep down your values shall never die. Michael Opondo O. is a second year Law Student at Kenyatta University, Parklands Campus, and managing editor of The Kenyan Legal Magazine.
To comment on this and other articles please visit www.kenyanlegal.com “Real Kenya, Real Issues”
I
THE SENATE, THE SENATOR By Samuel Onyango, [email protected]
evolution is one of the most important crafts, if not the most important, of the Constitution of Kenya 2010. The
significance of devolution can never be overstated; and, it must never be a preserve of and opportunity for political schemes but for the deliverance of the people from decades of poverty, marginalization and ethnic division. In that regard the people must fight tooth and nail to ensure that devolution is protected and that the county governments work their sweat off with every available resource for the well-being of the people of the counties.
It is to protect and promote devolution that the Senate house of Parliament was established. The role of the Senate is very well cut-out (and in my opinion unfairly limited) under Article 96 of the Constitution in four sub-articles. The role of the Senate as provided by said Article reflects its interesting nature. Generally “[t]he Senate represents the counties, and serves to protect the interests of the counties and their governments.” Article 96(1). The Senate’s short history proves that this role carries with it peculiar paradoxes, controversy, and difficulty.
In tough defence of the county governments’ demand for allocation of more funds to the counties, in the recent past, the Senate went all the way to the Supreme Court seeking the Court’s opinion on the conflict between the Senate and the National Assembly, thus demonstrating that
they were ready to do everything possible to protect the interests of the county governments. More recently, following a report by the Auditor General concerning the state of expenditure by the county governments the Senate determined to set tough laws to discipline governors’ spending.
The National Government suffocated the counties with paying employees who worked under the local governments of the former regime. When Nairobi Governor Dr. Kidero determined to lay off some of said employees the relevant Senate Committee was quick to summon him so to arrest the situation. This instance and that demonstrated in the foregoing paragraph are simply examples of more problems to come due to devolution. Such are the pains and confusion inherent in transition – transition from a centralized system to a devolved system of governance.
Now the Senate is more seized of the matter than is any other offices of State. The Senate must bear the headache of balancing the interests of both the National Government and the county governments; this is because the Senate is both a house of Parliament (which is a national organ of State responsible for addressing national issues), and a protector and defender of the county governments. The problem is that the Senate cannot wholly defend the one without appearing to be jeopardizing the other.
For the above reasons the Senate will for long be a stand-alone; that is it cannot get too comfortable with its counterpart the National Assembly, and the National Government in general, and at the same time it must strictly watch and regulate the county governments to ensure that the interests of devolution are met. Two facts are evident: The fact that the National Government is often tempted to override the county governments, and that certain governors are greedy, clueless, and extravagant. The future of devolution will be determined by the current Senate.
Therefore the Senate must refrain from being swallowed by party politics otherwise it will fail,
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because, honestly, devolution is one of the lines along which the Jubilee – CORD battle is being fought. Now, who in essence, is a Senator? This is the person who should be the governor’s best friend-cum-disciplinarian. This is the person who should be touring the county as much as possible to see what to shout about to and at the National Government and the governor. He or she should bring benefits to the county and at the same time chase after everyone like a dog.
Unfortunately, the Senator is not an administrator of funds like the member of the National Assembly has CDF at his disposal. Consequently the Senator may never be felt unless he works twice as hard and is very aggressive, and to some extent, ‘omnipresent’ (appearing to be in many places at the same time), doing this and that, talking to so and so to invest here and there and to fund such and such a project in the county, etc. etc. This is the ideal Senator, who unfortunately, may hardly be found in Kenya today.
Therefore Senators must change their tact. It is unfortunate that certain Senators do not see
eye- to-eye with the Governor of their counties. Worse still, some are never to be seen in their counties. The role of Senators as provided in the Constitution is limited; they must therefore be very creative to the point of inventing roles for themselves in order to bring out their personality and influence in the counties and nationally. One who neglects this counsel is likely to become irrelevant; the age-old “being close to the big man” is slowly becoming inconsequential in Kenyan politics today.
The Senate, and individual Senators must stand up, and stand out!
Samuel Onyango is an LL.B. candidate, 2016. Riara University and Kenyan Legal’s Branch Co-ordinator Riara School of Law.
To comment on this and other articles please
visit www.kenyanlegal.com “Real Kenya, Real Issues”
THE DOCTRINE OF QUANTUM
MERUIT IN EMPLOYMENT By Victor Kiamba, [email protected]
uantum Meruit is a doctrine by which the law infers a promise to pay a reasonable amount for labour and/or
materials furnished even in the absence of a legally enforceable agreement between the parties. Illustratively, we can say that the law implies a promise from the employer to the workman that he will pay him for his services as much as he may deserve or merit (value for work done) The doctrine is used to determine the exact amount owed to a person. The court may measure this amount either by determining how much the defendant has benefited from the transaction or how much the plaintiff has expended in materials and/or services. Courts look at the following elements when a claim for Quantum Meruit is raised: 1. Benefit: the plaintiff provided the defendant with a benefit 2. Expense: the benefit was at the expense of the plaintiff 3. Unjustness: if the defendant retains the benefit, the result would be unjust Restitution will be awarded where a contract has been frustrated, void, terminated or generally unenforceable. However, a Quantum Meruit claim can be made where a contract is still underway. Powell v Braun [1954] All ER 484,
although there was no fixed price for the performance of the contract, the court ruled that the contractor was entitled to be paid a reasonable sum for his labor and material supplied. Quantum Meruit can also apply in Quasi-contracts where a contractor agrees to start work although all the essential elements of the contract have not been finalized and as a result the negotiations fall through. As seen from Trollope & Colls LTD v Atomic Power Constructions LTD [1963] 1 WLR 333, there is an obligation to pay a sum of money for the work that has been performed as both parties were in agreement for the work to begin, even though not all negotiations were finalized. When there has been part performance of an entire contract, Quantum Meruit may be sought by a party in breach if they can prove that there had been substantial performance of obligations and the breach was insufficient to give rise to the right to terminate to the other party (Hoenig v Issacs[1952] 2 All ER 176 in employment contracts the obligation upon the employer to pay salaries and wages to the employee depend entirely on the contract of employment and there cannot be said to be any overall legal obligation to pay salaries and wages as such since they are not necessarily the consideration to be supplied by the employer for the service and work done by the employee. Thus at common law there can be a valid contract of employment even though no set wages are payable. However, where there is some reference to remuneration, or some discernible understanding that there should be remuneration, or where the contract is just vague on the subject, the employee may be able to recover a reasonable sum on a Quantum Meruit basis. The same may be applied where an employment contract had not been finalized. See Powell v Braun where a secretary who had been offered an unspecified
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annual bonus in place of the usual increase in wages was held by the court to be entitled to a reasonable amount on Quantum Meruit basis for the two years during which her employer had failed to pay any bonus at all, thus establishing that this doctrine may be used to recover additional remunerations as well as ordinary salaries and wages. In conclusion, a party who performs a valuable service for another party usually enters in to a written contract or agreement before performing the service. In the absence of an agreement or written contract, the party may be unable to recover losses in court should the transaction go wrong. Therefore, under the doctrine of Quantum Meruit, a party allowed to recover losses in the absence of an agreement or binding contract. Victor Kiamba is an advocate of the High Court of Kenya
To comment on this and other articles please visit www.kenyanlegal.com
“Real Kenya, Real Issues”
NEED TO MODERNIZE THE KENYAN
THEFT LAW By Gabriel Pelu, [email protected]
he Kenyan theft law at the moment defines stealing in section 268(1) of the Penal Code as, a fraudulent taking and without claim of any right anything that is capable of being
stolen or fraudulent conversion to the use of any person other than the general and special owner thereof, any property, is said to have stolen that thing or property. Sub section (2) provides a definition for a ‘special owner’ who is any person who has any charge or lien upon the thing in question or any right arising from or dependent upon holding possession of the thing in question. Section 267 provides that every inanimate thing whatever which is the property of any person and which is movable or which is capable of being made movable is capable of being stolen or is capable of being stolen as soon as soon as it becomes movable. This concept of theft is quite outdated given its narrow possible actions that would attract consequences under theft. Our elements of stealing are majorly fraudulent taking and conversion without right in the property or thing where the mens rea is in the fraudulence of the act.
English law provides that the actus reus of theft consists of (1) the appropriation of (2) property (3) belonging to another and that the mens rea consists of the defendant acting (1) dishonestly and (2) with an intention of permanent deprivation of the other of it. Section 1(1) of the English Theft Act 1968 provides that a person is guilty of theft if he dishonestly appropriates property belonging to another with an intention of permanently depriving the other of it. Section 3(1) defines appropriation as any assumption by a person of rights of an owner amounts to appropriation including where he has come by the property (innocently or not) without stealing it, any latter assumption of a right to it by keeping or dealing with it as an owner where temporary appropriation may also amount to theft. This brings out the dire need to impose a new morality of honesty in relation to proprietary rights through the law. There should thus be a role taken up to amend the law that we have on theft. This morality of honesty is needed in Kenya because in certain circumstances, a person may appropriate foreign property or even assume the rights of an owner without actually stealing. This will help widen our perception of theft and also broaden the kind of actions that attract a penalty of theft. In the case of R v Lawrence, an Italian student who spoke very little English arrived at Victoria station and showed and address to Lawrence who was a taxi driver. The journey would have cost 50 pence but Lawrence told him that it was expensive. The student offered a 1 pound note y=to Lawrence saying that it was not yet enough. The student then allowed Lawrence to help himself from his wallet to another six pounds. Lawrence put forward an argument under English law that he had not appropriated the money as the student had consented to him taking it. Both the Court of the Appeal and the House of Lords rejected the argument holding that there was
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appropriation in this situation. English law seems to put a lot of emphasis on honesty of persons to another thus consent alone cannot keep one from attracting a penalty of theft because in appropriation the accused need not do anything contrary to the owners wishes. It was stated in the case of R v Gomez by the House of Lords that there was no need for adverse interference or assumption of some right of the owner thus any act may be an appropriation even if done under consent of the owner. The English Theft act also makes it clear that there can be appropriation where the accused acquires property without stealing it but latter decides to keep or deal with the property as the owner. Clearly, what would be considered theft under the English law, where most of our law originates,
would not be considered theft in Kenya. Our offence of stealing is quite narrow, not embracing the morality based on honesty in relation to proprietary rights.
Gabriel Pelu is an LL.B. candidate, 2016. J.K.U.A.T and Kenyan Legal’s Branch Co-ordinator JKUAT School of Law.
To comment on this and other articles please visit www.kenyanlegal.com
“Real Kenya, Real Issues”
Power play» Power, politics & governance
With Arnold Odiembo
WHAT DOES OUR KENYA POLICE
FORCE REALLY NEED? ot one nor twice but time without number has the quest to ensure the championing of the implimentation of
police reforms in Kenya been an issue of enormous kernelty.
All has been done from the implimentation of
the new contitution through to the creation of independent police bodies running down to the ammendment of police reforms but none has brought ensconced and relief to Kenyans that may make them believe in the police force.The funniest part of it all is, what was jotted down under the police reforms has brought more harm to both the Kenyan citizens and the police body at large.
Rather than Kavilundi and Kimaiyo focusing
on the ‘core’ they major on the ‘co’. Back in high school Mr Wara my teacher of
English at Maranda ,tried to distinguish the two. He intimated that ‘Core’ is used to implore the great importance of something or something important per se. ‘Co’ he stated is used as to bring about the meaning peripheral or rather AOB.
Kimayo and Kavilundi have majored their focus on the supremacy battle rather than focusing on providing the leadership that would bring the slightest betterment of the police force.
But that aint of much importance to my
reason for writing. I feel the police force is pasted dark due to the fact that since time in memorial or rather the epoch of it all,the police force has been used as a pit for those who have not done well in their academics. The police force has always been a better positive alternative for ‘academic misery’ before the public. It is also a belief that most police officers have failed to undertake the complete educational syllabus.
The police force is where people with self low
esteem have crowded and that is why the moment you tease or rather direct abusive verbatim to a police officer there are higher chances that he /she could blow of your head. When you tell a police officer ‘wewe ni mjinga’, it hits him not in the head but at heart and he or she will act violently or rather aggressively because he is hurt by that fact.
Take a case where you intimate the same
statement to a police officer with a master’s degree in any major course. Surely if he or she is
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a reasonable prudent individual he/she will take it upon him or herself to rather convince you, who is calling him stupid to be more stupid in a more amicable manner rather than violently.
I think in the quest to ensure the reduction of
the police taking down citizens without
conscience, their educational status should be key in one’s qualifications. Let us have the minimum requirement for one to join the police force to be a degree in any course not just any Tom Dick and Harry Jane inclusive who finds misery on his or her academic background
Main feature By Michael Opondo O., [email protected]; [email protected]
verything within nature has a limit, except for the doubt that the sky is blue, but for the fact that there's increasingly an overt departure from societal moral standards as regards sexual/gender based violence against the feminine gender, here I have no doubt apparent. In their essay "The Wrongness of Rape", John Gardnet and Stephen Shute state:
"That (sexual violence) is wrong, and seriously wrong at that, can scarcely be doubted. Arguably, (Sexual violence) is among those wrongs which are never excusable. Probably, it is among those wrongs which are never justifiable. Certainly, it is among those wrongs which ought to be forbidden and punished by the criminal law...'everywhere in the civilized world' and the decriminalization if which 'no reasonable person cod advocate'." My sentiments exactly. Social researchers have time and again shown that sexual violence is of misogynist nature; a hate crime rather as it has less to do with sexual desire but directed towards 'Male empowerment' over women; and Kenya largely being a partriachial society would use any tactical means to maintain the "status quo" even if it means three men raping a 16 year old school going girl, dumping her body in a pit latrine, then let off to go after a grass-slashing punishment; I mean, they're men after all, the society understands their "needs" so, right? What would Hon. Njoki Ndung'u do anyway? Or even as it has become common place news a 32 year old man defiles his 6 year old daughter and the first fingers point to the woman for not being a "good wife" you know where. So technically, every man's unbecoming behavior should be blamed on the woman's coming. And so it goes, with the continued and increasing instances of sexual violence the question always is WHAT WOULD HON. NJOKI NDUNG'U DO? Did she push for an ineffective bill into Law or did the Sexual Offences Act, 2006, really have an agenda to settle? Herself The Hon. Lady Justice Njoki Ndung'u has in the recent past acknowledged that the fight against sexual violence is far from over. Speaking at annual education / prize giving day at Muruguru Girls Secondary School in Nyeri County, she lamented that the fight against sexual offences in the country is being hampered by stigma among victims of all sexes expressing that most of the victims of the offence be it men or women do not report cases to police and if they do they never follow up, a move which is hampering the fight against the vice. “It’s sad that most of the victims of rape, defilement and other vices just go to hospital and even those who report to police never show up in court,’’ Said Njoki. She called on non-governmental organization to Sensitize Kenyans on their rights so that criminal justice can take root in the country. The judge said that it was unfortunate that in many parts of the country people are not even aware of the sexual offences Act. She called for equipping of hospitals and clinics so that when such victims seek medical services
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Clinicians and nurses refer them to police station where sexual offences desk should be established. Hon. Njoki called for empowerment of women saying that although women have attained several gains courtesy of the new constitution they are still marginalized hence many do not even realize they are being sexually abused. It can barely be said that the said Act has stayed long to have been riddled with fatigue but rather the society's take that continued tolerance means consent. Hon. Njoki Ndung'u introduced the Sexual Offences Bill as a private member bill to parliament with an objective "to make provision about sexual offences, their definition, prevention and the protection of all persons from harm from unlawful sexual acts and for connected purposes". The main common offences under this Act are:
1-Rape: Defined in section 3 of the Act as simply having sexual connection with a person without the person's consent; with its principle ingredients being penetration of the victim's sexual organs with the male or female organs of the aggressor, and lack of consent of the victim to that aggression. Prescribed penalty is of a minimum of 10 years and maximum of Life imprisonment.
2-Defilement: Defined in section 8 of the Act as sexual connection with a child; a person below the age of 18 years. Penalty prescribed depends on age of the victim at the time of commission: I) Below 11 years of age-life imprisonment. ii) Between 12-15 years of age-not less than 20 years imprisonment. iii) Between 16-18 years of age-not less than 15 years of age.
3. Gang Rape: Created in section 10 of the Act as rape in association with others prescribing a penalty of not less than 15 years imprisonment. Delving further are two main discredits I'd put to this Act. As women are mostly their own enemies, the act makes an enemy of itself on section 38 which provides that "any person who makes false allegations against another person to the effect that the person has committed an offence under this Act is guilty of an offence and shall be liable to punishment equal to that for the offence complained of." This, in my view is what most sexual offences go unreported for victims mostly get intimidated by aggressors pushing for settlement out of court. The second would be the minimum extent of what should constitute indecent acts. Section 144(3) of the repealed Penal Code 2006 criminalizes an insult to a woman's decency by way of word, sound, gesture, by use of an object or breach of privacy with a prescribed penalty of 1 year. This however should have been prescribed a rather higher penalty and provided for in the Sexual Offences Act. By and By, an insult to the womb is an insult to the Kingdom; it’s only sensible to protect the women in our society. Overstepping on a woman doesn’t make you any macho.
Michael Opondo O. is an LL.B. candidate, 2016 Kenyatta University, Managing Editor Kenyan Legal. To comment on this and other articles please visit www.kenyanlegal.com “Real Kenya, Real Issues”
ABORTION IN KENYA, IS IT LEGAL
OR NOT? By Victor Kaula, [email protected] Definition Abortion is the intentional or unintentional expulsion of a preborn child at any time after fertilization and before the natural birth process is completed. I would like to view this wide concept in respect to our Kenyan constitution 2010 and see if it is constitutional or not. Constitutional provision The Kenyan Constitution is not silent at this matter. I would like to draw our attention towards the provisions of article 26 of the Constitution that state: 1) Every person has the right to life. 2) The life of a person begins at conception. 3) A person shall not be deprived of life intentionally, except to the extent authorized by this constitution or other written law. 4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or
health of the mother is in danger, or if permitted by any other written law. Clause 4 of Article 26 of the Constitution of Kenya introduces what is popularly known as restrictive abortion language. This means that abortion is allowed but only to some extent that is permitted by the constitution or any other written law including international law that forms part of Kenyan law. Is the restrictive abortion clause constitutional? Abortion Language should not be in the constitution. Kenya would be going against an overwhelming international consensus that language specifying when life begins does not belong. Kenya is a sovereign state and it chose not to ratify the Maputo Protocol (2003), which calls on all State parties (Ratifying African states) to legalize abortion. By inserting restrictive abortion language in the constitution, Kenya is acting consistent with its choice not to ratify the Maputo Protocol. It also should be noted that the restrictive abortion clause raises eyebrows on the use of E-pills and other contraceptives. Should they be banned for aiding in abortion? E-Pills are Abortifacients. They do not prevent conception but have the effect of terminating the life that is hours old. The active ingredient in most of the E-pills is Levonorgestrel. It has the effect of preventing the endometrial from thickening when it should and thus prevent successful implantation. Professor Okoth Ogendo in his article “Constitutions without Constitutionalism” outlines that there are constitutions with the paradox of not having constitutionalism. Could
it be said that the restrictive abortion clause is unconstitutional since it lacks constitutionalism? A constitution is a social contract by which people choose to be governed and by which their aspirations are measured. A law (provision) is constitutional if it is consistent with the provisions and spirit of the parties to the social contract. The restrictive abortion provisions have to be tested thus for their constitutionality. I would like to present the logic of constitutionality in the above context in two hypothetical situations. i. If the restrictive abortion provisions are unconstitutional, then the people of Kenya are against Life. ii. If the restrictive abortion provisions are constitutional, then the people of Kenya are in favor of Life. But the people of Kenya must either be in favor of life OR against life. Under the current laws, Section 26 of the current Constitution prohibits the intentional deprivation of the right to life of any person. The provisions of Kenyan Law the Penal Act, The Criminal Procedure Code and Pharmacy and Poisons Act are protective of Life. Also, on the social outlook; i. Kenyans still celebrate births and mourn deaths ii. Kenyans still celebrate family and mourn loneliness. A Law that negates the possibility of life and family is truly against the interests of the people of Kenya. Therefore I can humbly say that the restrictive abortion provisions are constitutional according to the above demonstrations. Inconsistency in the Law In the case of Republic v Dr. John Nyamu & 2 Others Nairobi HCCr. No. 81 of 2004 Lady Justice Rawal acquitted the accused on the ground that the unborn children were according to Section 214 of the penal code incapable of being killed. That brings an issue with the inconsistency of the law in matters of abortion. Section 214 of the Penal |Code state that; “A child becomes a person capable of being killed when it has completely proceeded in a
living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not.” The courts also may choose to charge the accused persons under Section 203 of the Penal Code which is related to murder and not Section 158 to 160 of the Penal code which relate to procuring abortion and miscarriages. Section 181(2) of the Criminal procedure Code cap 75 Laws of Kenya states that; (2) When a person is charged with the murder or manslaughter of a child or with infanticide, or with an offence under section 158 or section 159 of the Penal Code (relating to the procuring of abortion), and the court is of the opinion that he is not guilty of murder, manslaughter or infanticide or an offence under section 158 or section 159 of the Penal Code, but that he is guilty of the offence of killing an unborn child, he may be convicted of that offence although he was not charged with it. Conclusion As I come into conclusion, I am left with two questions to answer. i. What is in the womb? Is it a human life or some other specie? ii. Should there be equal protection by law of all living humans, or should the law discriminate against an entire class of living humans on the basis of age – too young, and on the basis of place of residence- in the womb. As the Yoruba saying goes, when you see an elephant, you don’t say I saw something, you say I saw an elephant. My fellow learned friends, what is in the womb?
Victor Kaula is an LL.B. candidate, 2016. Moi University School of Law and Kenyan Legal’s Branch Co-ordinator Moi University School of Law.
To comment on this and other articles please visit www.kenyanlegal.com
“Real Kenya, Real Issues”
TERRORISM AND RELIGIOUS
TOLERANCE
By Michael Opondo O., [email protected]; [email protected]
he direction of thought is often biased towards favoring the crowd; for purposes of this article, I'll call it the
mob effect. What the majority of the society say is right shall be right, and to cap this all, the global societal scene is biased in favor of a democratic polity; good thing. Democracy on the other hand is the freedom of the heart, and not the sun, that is, chainless hands do not represent democracy but limitless tolerance of divergent thoughts and ideologies is the true face of democracy; the cardinal true democracy, then here goes terrorism aligned to the Muslim religion of which by standards if population, are a minority to the Christian religion. So maybe the Mob effect wouldn't allow us as much to try understanding the reasons behind their course of action, but at the same it wouldn't hurt to at least try. Religion is rather a very emotive topic and even as it’s said "Religion is the only barrier that keeps the poor from murdering the rich", it goes on to show the deep convictions and connection humans have as regards religion and faith; even an atheist has a religion deep down somehow. Martyrdom has long been seen as the way to go for one's faith, common in Christianity and Islam alike; the surest way to join back your creator. The matter of terrorism
started off on the interest and belief that it would maintain the purity of Islamic religion as regards protecting their Holy land which to me was democratically right thought its progress to current state is overt and has lost its dignity. My cause here is not to put terrorism on a pedestal and praise but rather a rebellion to the mob effect and it need not be perfect my cause. The human conscience is based on two facets; the good and the bad and while at it, human beings are deemed to create their own demons. In my view, the fight against terrorism is leaving a lot to be considered as regards Human Rights as it has since perfected the "Us" versus "Them" view; "Good" versus "Bad" built on a "Highly Punitive" strategy in administering justice, that is, the attitude that offenders, "Them", should be dealt with as severely possible which in effect they come back stronger and more daring than was. What would it hurt the global society to find the root-cause of all this? if it is purity in their religion's Holy land and sovereignty, if its non-interference in their affairs that they want, then maybe lets grant even as its true that if you grant a mouse its demand for a piece of cheese, next it will demand for a glass of milk, but all in all, what I am advocating for is the "Managerialist" strategy which rather seeks to protect and uphold human rights of offenders, victims and potential victims never neglecting any.
Michael Opondo O. is an LL.B. candidate, 2016 Kenyatta University, Managing Editor Kenyan Legal.
To comment on this and other articles please visit www.kenyanlegal.com
“Real Kenya, Real Issues”
T
PROSECUTION APPEAL AGAINST THE
“DECISION ON MR RUTO’S REQUEST FOR EXCUSAL FROM CONTINUOUS
PRESENCE AT TRIAL” The Prosecutor v. William Samoei Ruto and Joshua Arap Sang
ICC-01/09-01/11
Sanji Mmasenono Monageng, (PJ); Sang-Hyun Song (J); Akua Kuenyehia (J); Erkki
Kouroula (J); Anita Usacka (J)
July 29, 2013
Reported by Monica Achode
Introduction
The appeal was anchored on seven unambiguous words in Article 63(1) of the Rome Statute:
“The accused shall be present during the trial”. It was the prosecution’s contention that the
majority of Trial Chamber V(a) erred in law when it disregarded this statutory requirement and
excused Mr Ruto from attending substantially all of his trial. Article 63(1) established the
accused’s presence as a fundamental requirement or condition of the trial. The seven words of
Article 63(1) were clear on their face and even clearer when read in the context of the Statute as
a whole, which permitted an accused’s presence to be waived at confirmation – but not at trial.
Thus, pursuant to Article 63(1), the accused was required to attend the trial.
The prosecution went on to state that whatever “discretion” a trial chamber may have, it did not
permit it to discard controlling statutory requirements, or to substitute its own policy preferences
for those of the States Parties. The Majority was bound to apply the law as it stood. The Decision
failed to do this, and was incorrect as a result. It was their contention that if upheld, the decision
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would indicate that trial judges had virtually unlimited “discretion” to apply some parts of the
Statute and to ignore others. That was not the system the States Parties agreed to when they
ratified the Statute and transferred some of their sovereignty to the Court. The States Parties
expected all provisions of the Statute to be given effect – particularly those such as Article 63(1),
which were unambiguous. The Decision failed to observe this basic rule and had to be reversed.
Grounds of Appeal:
The following were the grounds of appeal adduced by the prosecution:
1. That the Majority erred in law by disregarding the attendance requirement under Article 63(1)
and by excusing Mr Ruto from attending substantially all of his trial.
a. The decision failed to give effect to Article 63(1) in line with its ordinary meaning
b. The decision misconstrued the context, object and purpose of Article 63(1)
c. The decision ignored the drafting history of Article 63(1), which demonstrated that the
accused’s presence at trial was required
d. The decision was based on the erroneous premise that a trial chamber had “discretion” to
disregard the attendance requirement under Article 63(1)
e. The decision relied on an incorrect “duty” analysis
f. The decision improperly relied on external sources of law rather than this court’s statutory
provisions that resolved the issue
2. That the Majority erred in law by excusing Mr Ruto on the basis of his “important functions”.
a. The Majority’s test was incorrect because it extended beyond the solitary exception codified in
Article 63(2)
b. The Majority’s test violated the principle of equal treatment under the law, as expressed in
Article 27(1) of the Statute
c. The Majority’s test presented a “floodgates” problem.
Request for Suspensive Effect
If the Appeals Chamber was unable to resolve this appeal before Mr Ruto’s trial commenced on
10 September 2013, the prosecution requested suspensive effect under Rule 156(5) because the
implementation of the Decision would
i. create an irreversible situation that could not be corrected, even if the appeals Chamber
eventually were to find in favour of the appellant
ii. lead to consequences that would be very difficult to correct and may be irreversible, or
iii. could potentially defeat the purpose of the appeal”.
Implementation of the Decision would have the effect of excusing Mr Ruto from trial after
opening statements. This appeal aimed to ensure Mr Ruto’s attendance at the trial, and to prevent
the possibility of the trial being nullified due to the lack of a necessary condition under the
Statute. Implementation of the Decision necessarily defeated this purpose; the trial would
commence on the basis of an incorrect legal framework, and as a consequence proceedings
would be tainted.
Moreover, implementing the Decision would create an irreversible situation that could not be
corrected and would lead to consequences that would be very difficult to correct and may be
irreversible if the Decision was overturned and the trial had to restart in Mr Ruto’s presence. In
particular, the Prosecution would have to recall witnesses who testified in Mr Ruto’s absence.
Considering the difficulties faced in this case, such witnesses might not be willing or able to
return to testify again, depriving the Prosecution of part of its evidence.
Conclusion
For the above reasons, the Prosecution requests the Appeals Chamber to:
1. Grant suspensive effect of this appeal by ordering that Mr Ruto shall be required to attend trial
until this appeal has been decided; and
2. Reverse the Decision.
- See more at: http://kenyalaw.org/kenyalawblog/prosecution-appeal-against-the-decision-on-mr-
rutos-request-for-excusal-from-continuous-presence-at-trial/#sthash.pkFmGSrp.dpuf
See more at www.kenyalaw.org
Lifestyle section
(Carla’s diaries is a diary of a law student sharing her hostel life
experiences)
Today I bring you good news. Yours truly is smiling over here and that means, prepare yourself for some
good tidings. First of all, the mangoes on top of the mango tree in the hostel compound have ripened.
But there is a problem; yours truly doesn't know how to climb that tree. But she knows how to salivate
at the juicy orange gold up that tree. Talk about wasted chance. Then we have this new cook called
Akanyonganyonga who cooks some really nice chapatis but sadly those chapatis are never round and
my roommate will always complain,"Mi huwa skuli chapo si round!"
I have tasked myself with working towards a healthy lifestyle this year and tell you what; it's not
easy, let alone practical in the hostel. For one, I am to drink eight glasses of water per day-Now will I be
drinking water when there's tea down at uncle's? Then I am to take a heavy breakfast and to avoid a lot
of snacking in between meal times-I cannot, for the life of me understand why I have to starve in-
between mealtimes in the name of staying healthy when I can grab something on my way from class.
There is surely no law in nature that requires someone to starve in the name of being healthy.
Dear reader, another juicy news is that I am having the private thoughts of an almost-finishing-
school comrade. People like us think very private and deep thoughts that to ask me about such thoughts
would be a violation of my right to privacy. But I will give you a clue because every law has exceptions.
One such private thought is, "What happens when I get out of here this year? Will I get a good job? Ata
nikikua Chief Justice haitakuwa mbaya saaanaaa...”
Now that I am burning the candle preparing for my dissertation, allow me dear reader to wish you a
lovely time. Nobody is always innocent but try to be law abiding, unless you want to read my next entry
in the confines of prison. No you don't want that, neither do archers!
By Caren Kerubo [email protected]
0718059041
CARLA’S DIARIES
THE PUBLICATION TEAM
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Kenyan Legal Branch Directorate:
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