Extrajudicial Killings

Brenda Wambui
31 July ,2018

On 7th July 2018, the Social Justice Centres Working Group, which consists groups from Mathare, Dandora, Kayole, Mukuru, Kibra, Kamukunji and Githurai, held the Saba Saba March for Our Lives. The demand? An end to extrajudicial killings, investigations into the ones that have occurred, and most importantly, justice for those killed.

According to the Who is Next? report by the Mathare Social Justice Centre, between 2013 and 2015, 803 people were killed in Mathare by the police – 308 in 2013, 418 in 2014, and 77 in 2015. The average age of those killed was 20.  They were mostly men of mixed ethnicities; they were intercepted by the police and shot at close range, or in the back; the killings are usually premeditated, and the police officers who carry out these killings are identified and well known in the community, and are involved in multiple extrajudicial killings; weapons tend to be planted on the bodies of the executed after they are killed to justify the killings, and people are routinely intimidated such that they fear acting as witnesses to these killings.

Many Kenyans tend to support these killings, saying that these young men belong to gangs that make Nairobi unsafe and unlivable, and that putting them in jail is difficult; catching them in the first place is difficult. That if one lives by the bullet, they should expect to die by the bullet. That the people against such killings are only against them because they haven’t been victims of these gangs. Or, that they are benefiting from the spoils of these gangs and have incentive to support them.

These killings are extrajudicial for a reason – they are illegal. According to Article 26 of our constitution, every person has a right to life, and a person should not be deprived of the right to life intentionally, except to the extent authorized by the constitution and any other written law. In the case of the police, specifically, the National Police Service Act (2011) provides that firearms may only be used when less extreme measures are inadequate, and for the following purposes: 1- saving or protecting the life of the officer or other persons, and 2- self-defense or in defense of other persons against imminent threat of life or serious injury.

This is usually not the case. The Independent Medico-Legal Unit (IMLU) reported that in 2017, 152 people were killed by the police, and that out of those 152, 74 were summary executions, 38 people were killed to protect life, and 40 were killed in unclear circumstances. 106 deaths occurred in Nairobi County, and 95% of those killed were young men. Many of these killings occur in low income areas, and this is due to the criminalization of poverty. Many innocent people are killed by the police simply because they happen to live in a slum where gangs also live.

It is claimed that these young men belong to criminal gangs which, according to one report, fundraise via social media to pay police bribes. Which goes to suggest a couple of things. One, that they are known to the police, possibly quite well. Two, that for as long as they pay their dues and don’t kill any police, they are safe. If these criminals are known, why haven’t the police apprehended them? It is worth remembering that in December 2016, then cabinet secretary for Interior Affairs, the late Joseph Nkaissery, outlawed 90 criminal groups, such as Gaza, 42 Brothers, Eminants of Mungiki, Vietnam, American Marines, Chapa Ilale, and the Super Power Gang.

Their being outlawed means that by law, they risk a fine not exceeding KES 5 million, or imprisonment for a term not exceeding 15 years, or both. However, if a victim dies, they are liable for life imprisonment. We have a process for dealing with these gangs, so why won’t we enforce it? Most times, it is because of loopholes in law enforcement, of which the police and the judiciary are a part. Then there’s the matter of evidence collection and witness protection, both of which are shambolic in Kenya. If we are to successfully put members of criminal gangs behind bars, evidence must be properly collected; it must not be contaminated, and the process of acquiring it must not have gone against the law. Otherwise the case will likely be thrown out of court.

There’s also the matter of testifying against these gangs. Anyone who was at the scene of a crime needs to be assured that they will be safe if they testify, and that they won’t suffer retaliation from the rest of the gang towards them or their loved ones. At the moment, this is not the case. There’s also the matter of judicial bribery. Members of criminal gangs may just buy their way out of jail.

We must fix these problems as opposed to making extrajudicial killings acceptable. What we have now is a cycle of violence begotten by a cycle of poverty, and a cycle of injustice begotten by inequality. We have bad systems and a lack of political will, all of which are nuanced; all of which will take time and commitment to fix. The solution is not extrajudicial killings. When we make such crime acceptable, it becomes the norm. How can we defend law breaking by the people supposed to enforce the law? It shows that we have no respect for our constitution. In which case, on what basis do we criticize our leaders for their grand theft? For their corruption? If we base our arguments on the law, then we must unequivocally support the law.

Are Kenyans Over-represented?

Brenda Wambui
17 July ,2018

Before we passed the 2010 constitution, we voted for the president, and members of parliament for our respective constituencies. After 2010, a Kenyan voter now has to elect the president and their deputy (on one ticket), the governor and the senator for their county, the woman representative for their county, the Member of Parliament for their constituency, and the ward representative (also known as the MCA) who sits in the county assembly. The first time this took place was in the March 2013 general election.

Kenyans who voted elected six representatives per person (if we consider the president and deputy as one representative – the presidency). If we had felt under-represented before, this was no longer the case. We have one president (who comes attached to a deputy president), 47 governors (and their 47 deputies), 67 senators (47 elected by counties, 16 nominated by their parties, 2 members representing the youth, and 2 representing persons with disabilities), 349 members of the national assembly (290 constituency representatives, 47 woman representatives, and 12 nominated members of parliament). We also have 2,526 MCAs. That’s 2,990 members (if you count all the deputies, it becomes 3,038). We have 43 million Kenyans. That’s one representative per 14,000+ Kenyans.

This over-representation shows in our public wage bill. In 2014, our public wage bill was 8% of GDP, which in that year was USD 61.4 billion. This increase in our number of representatives reflects in the jump in the wage bill, which was KES 249 billion in 2010, and KES 418 billion in 2014. Much of this jump was caused by the introduction of county governments. The average annual growth rate was 14% between 2010 and 2014, yet the average annual growth rate of GDP was only 5%. Where are we magically getting this money?

Debt.

This is why public borrowing is out of control in Kenya. In 2015, our public debt was USD 32.54 billion, which was 52.8% of our GDP. In 2016, our public debt was USD 38.9 billion, which was 54%. In November 2017, our public debt reached USD 45.8 billion, which was 57% of our GDP. In 2018/19, our debt to GDP ratio is projected to rise to 59%. Each Kenyan owes KES 100,000 worth of national debt to external parties. We borrow to survive. We don’t make enough to live on.

In the year ending June 2015, we spent KES 11.2 billion on Senate and the National Assembly, up from KES 9.2 billion in the year ending June 2014. Each year, as shown here, they have increased their pay. In April 2013, the Speakers (the highest paid Members of Parliament) earned a monthly salary of KES 990,000. In April 2017, they earned KES 1,320,000. Regular members of parliament increased their monthly from KES 532,500 in April 2013 to KES 710,000 in April 2017.

On average, Kenyans spend 55 million shillings per Member of Parliament (both senate and national assembly). This is about 2% of our national budget. For comparison, the global average is 0.57% (this is for countries with a population between 10 and 50 million, which is what we are). That is almost 4 times more. Why do we spend so much? South Korea’s GDP per capita (this is GDP per person per annum) is USD 27,538.81. Japan’s is USD 38,894.47. The USA’s is USD 57,466.79. Ours is USD 1,455.36. Yet, per 1 million people Kenya has 9.18 representatives, while South Korea has 5.9, Japan has 0.4, and the USA has 1.7. Nigeria has 2.6 representatives per million people, Ethiopia has 7.1, India has 0.6, Venezuela has 5.3.

The first resort for most is to suggest the scrapping of quota seats for women, youth, persons with disabilities and other minorities. In many discussions, women representatives are said to be unnecessary, yet this is untrue. The purpose of woman representatives is to increase the representation of women in parliament, in line with the two thirds gender law which requires that no one gender have more than two thirds of elective seats. We still have not met this requirement. Only 19% of the national assembly seats, 27% of senate seats and 6% of county assembly seats are held by women.

Yet, even with these numbers, women representatives have spoken actively about the budget, education, health, security, agriculture, women, youth, water, land and so on. They have sponsored major bills, such as The Victim Protection Bill (Millie Odhiambo), The Access to Information Bill (Priscilla Nyokabi), The Protection Against Domestic Violence Act (also by Priscilla Nyokabi) The Kenya Aids Control Authority Act (Rachel Nyamai), The Food Security Bill (Beatrice Elachi), The Reproductive Healthcare Bill (Judith Sijeny), among others.

This translates to 8% of the National Assembly Bills and 18% of the Senate Bills in the last parliament. Quite good for a contingent that only made up 21% of the 2013 parliament. The answer is definitely not to reduce the number of minority representatives in parliament. Having more of these minorities represented can only serve to enrich our society. A discussion on minority representation should not only focus on women representatives, but on all minority representatives, and it is crucial moving forward, especially since we already didn’t meet the August 2016 deadline to have a framework in place to ensure the enactment of the two thirds majority rule.

The solution is clearly not to scrap these positions. It is to have a ratio of legislators to general population that makes sense. In the words of James Madison, “However small the Republic may be, the Representatives must be raised to a certain number, in order to guard against the cabals of a few; and however large it may be, they must be divided to certain number, in order to guard against the confusion of a multitude.” Deciding on an optimal formula is tricky. A parliament with too few representatives won’t be democratic enough, and can lead to an unstable political system. It can also lead to political violence.

Too many representatives lead us to where Kenya is now. There are many social costs, as well as financial costs. They interfere too much with how our markets operate (see our real estate market), increase bureaucracy, and they create many opportunities for rent-seeking activities and corruption. It is important to ensure that the general population is reflected in parliament, but this comes with many direct and indirect costs.

According to our Auditor General, Edward Ouko, we need 290 MPs (both senators and members of the national assembly), not the 416 we have now. That is a 30.28% reduction of MPs. In turn, we would save KES 6.93 billion a year. To show the effect of this under current situations, let’s assume this money would be used to pay for free day-school secondary education for children. Currently, each child has an allocation of KES 12,870 (up from KES 10,625), so the KES 6.93 billion would educate 538,461 secondary school going children each year. Assuming it was used for free primary education, it would also make a huge difference.

In 2014, the government increased FPE allocation per child to KES 1,420 (from KES 1,020) to cater for enrollment of about 10 million children in over 23,000 public primary schools. Annually this costs KES 14 billion. KES 6.93 billion would educate 4,880,281 children each year. Here, we are assuming that we are only reducing the number of MPs. What if we reduce them and reduce their salaries? Each of them currently takes home over KES 1.1 million in salaries and allowances monthly. If we reduced it to what he proposes, which is KES 931,000 per month, we would save even more!

When it comes to MCAs, 1625 are elected and the rest, 1901, are nominated representing the minorities we discussed. We can further reduce the number of wards to reduce the wage bill. Perhaps we can change the smallest unit of governance in the county from the ward to the initial divisions we had back when we had 72 districts. At their most, they were once 262 divisions. Even when we include nominations, the number of county representatives would not be more than 500 given the current ratios. That way, we would come down from 2,526 to 500 county representatives, and from 416 to 290 MPs.

Of course, to do so would require a referendum, but it is necessary. Our government is bloated.

Blockchain Technology and its Role in Real Estate Transactions

Guest Writer
3 July ,2018

by Jeff Kinuthia

A blockchain is a digital database or ledger distributed across a network of computers which is protected by coding the data to prevent editing and removal, and blockchain technology is the underlying application that enables all of this. Importantly, a blockchain records and stores all the transactions that occur within the network, essentially eliminating the need for third parties to confirm the validity of the transactions.

Until recently, blockchain technology was largely utilized and associated with cryptocurrencies such as Bitcoin but more and more jurisdictions are slowly opening up to its use in different areas such as financial asset management and in land registration systems.

Which is timely because aggrieved citizens voiced their concerns with the government for years regarding the poor management of the lands registries. In 2016 the Ministry of Lands finally embarked on a digitization exercise of the 57 land registries across the country which have been keeping manual records since 1895. This exercise is ongoing and is aimed at improving the delivery of services through electronic land transactions.

While this effort must be lauded, it came at a period when the developed world appeared to be going one way and Kenya the other. However, the recent announcement by the ICT Cabinet Secretary that blockchain technology will be applied to supplement the digital database is a welcome relief that places Kenya firmly on the forefront of the blockchain revolution.

Blockchain’s advantage over traditional databases (such as the one being implemented by the Ministry) are numerous. First, under blockchain, a central database or settlement system maintained by the Land Registry for example, is replaced by multiple copies. This is great because the problem with a centralized system, especially in a country with endemic corruption, is that ill-intentioned bureaucrats often infiltrate and tamper with the system and a digital database is not be exempt from such tampering.

In a land transaction utilizing blockchain, multiple copies of a blockchain will be held by any number of interested parties such as owners, potential purchasers and agents. These copies continuously and automatically update their contents via a complex consensus mechanism that means that they are always identical. By using hashes to identify every real estate transaction (thus making it publicly available and searchable), proponents argue issues such as who is the legal owner of a property can be remedied.

Secondly, Blockchain technology also underpins ‘smart contracts’, which are programmable contracts that self-execute when certain conditions are met, and offer the possibility that transactions could complete much faster when combined with a blockchain registry.  For instance, title to the property could be transferred to the purchaser automatically on receipt of funds into the vendor’s account.  The result would also be to speed up the registration process.  With the ledger updating immediately, the registration gap would be eliminated.  This, in turn, would also lead to greater efficiencies and cost savings for land registries.

Third, nothing on the blockchain can be changed save with the consensus of the network. Any confirmed transactions on the blockchain cannot be changed.

Lastly, what happens on the blockchain stays on the blockchain. A public blockchain will act as a public ledger meaning that as long as the blockchain remains operative, the data on it will remain accessible.

Globally, other countries are already in various stages of exploring blockchain-based land registries:

  • In Brazil, the government partnered with a blockchain start up to overhaul the land registrar at two Brazilian municipalities by embedding land possession data into the bitcoin blockchain. The pilot program begun in August 2017 and is ongoing. 
  • Sweden is the country that’s furthest along in putting land registries on a blockchain. It is a country with an already well-established land registry system and believes blockchain could save the Swedish taxpayer over $100 million by speeding up transactions, reducing paperwork and minimizing fraud. 
  • Republic of Georgia has already agreed to use blockchain to validate all government related property transactions. Since its launch in February 2017, Georgia’s blockchain provider has helped implement property registration and has registered more than 100,000 documents.
  • Closer home, Rwanda recently announced that a Swiss cybersecurity company, in partnership with Microsoft, will soon offer support to the Rwandan Government in adopting blockchain technology in the country’s land registries.

Challenges facing the implementation of blockchain

Regulations have always struggled to keep up with advances in technology and blockchain is no exception. One of blockchain technology’s challenges is that it reduces oversight. There is thus a strong argument for blockchain applications to work within existing regulatory structures not outside of them, but this means that regulators in all industries should understand the technology and its impact on the businesses and consumers in their sector. New regulations will therefore need to be formulated to govern this intergration.

Second, many potential applications of blockchain, such as in land transactions, require smart transactions and contracts to be indisputably linked to known identities and thus raise important questions about privacy and the security of the data stored and accessible on the shared ledger. A key question that will always be raised is who has access to the ledger and how is access controlled?

Further, in Kenya, the current data protection laws we have in place are inadequate and we needed greater legislation with regard to accountability of persons and institutions that hold data. The relevant legislation, the Data Protection Bill (2013), has been stuck in Parliament for years now. Adequate data protection laws will therefore need to be implemented.

Finally, cost. The cost of implementing blockchain technology in a country like Kenya might prove to be a great challenge. This is firstly due to the fact that we are yet to digitize the land registry. Blockchain can only be implemented on a digital platform. The exercise, which begun in 2016 is still ongoing and there is currently no indication as to when the exercise will be completed. Once the digitization is complete, we will then need to set up the infrastructure which will involve acquiring the right software and computers with great computing and storage power.

What now?

The announcement by the ICT Cabinet Secretary on blockchain and land registries, and the setting up of a digital ledger and artificial intelligence taskforce by the ICT Ministry is an encouraging sign that the government is open and willing to adopt blockchain technology.

In the private sector, numerous startups have begun already begun implementing blockchain in their businesses. Examples include ‘ChamaPesa’, a blockchain savings application for savings groups set to officially launch in 2018. ‘Land Layby’, a real estate firm, recently announced that the firm is set to roll out an application for a blockchain-powered land registry by April 2018. The initial role of the platform will be to provide a mirror reflection of the Government Land Registry systems.

In the cryptocurrency sector, numerous companies relying on blockchain technology such as ‘L-Pesa’ and ‘Belrifics Global’ have gone a step further by launching Initial Coin Offering (ICO’s). ICO’s are a funding mechanism similar to Initial Public Offerings (IPO’s) in which startups sell their underlying cryptocurrency tokens in exchange for bitcoin.

Such advancements and application of blockchain locally appears to have contributed greatly to the fact that Nairobi was chosen as the host of the 2018 World Blockchain Summit in March.

Blockchain technology is a revolutionary tool that will change the way we do business in a lot of different sectors from the land registry to the financial sector and practically every industry that has great data management needs. The ultimate question therefore is not if, but when will this technology’s application will become widespread in Kenya.

 

Jeff Kinuthia is a lawyer specializing in corporate and commercial law. He can be reached on njeffkinuthia@gmail.com 

The Problem With Lifestyle Audits

Brenda Wambui
26 June ,2018

Uhuru Kenyatta recently announced that all government officials and their families would undergo a lifestyle audit as part of his war on corruption, starting in July 2018. This would include him and his deputy, William Ruto. Those found guilty of corruption would be sent to jail regardless of their status, and he would not intervene, he said. Days later, his partner in handshake matters and People’s President Raila Odinga said that he and his ODM Party would no longer serve as whistleblowers, but instead they would partner with Kenyatta in the war on corruption. He too would undergo the lifestyle audit.

Lifestyle audits are tests that tend to be used by forensic auditors to determine whether a person’s lifestyle matches up with their known income stream(s). Because corruption, fraud and money laundering tend to leave little to no paper trail, they are difficult to detect, and many times only a sudden, inexplicable shift in lifestyle can signal to them. For example, Sports Cabinet Secretary Rashid Achesa believes that Raila Odinga needs to explain how he built a KES 1 billion home in Kisumu while he was Prime Minister, when his monthly salary was KES 1.2 million and his mortgage was KES 40 million. Allies of William Ruto have come out to claim that this audit targets him, and politicians such as Kimpchumba Murkomen have claimed the exercise will expose politicians as “poor”, and no one likes a poor politician.

Indicators of lifestyle tend to be public: the houses, cars, companies and properties one owns, one’s entertainment preferences, the schools one’s children attend, the size of one’s bank accounts and the transactions through these accounts, among others. However, even then, this cannot be taken as conclusive evidence of fraud, corruption or money laundering – it is merely an indicator, and sometimes the person being audited can explain it.

During the police vetting exercise, for example, one police officer said he was worth KES 20 million because he relied on loans. Another said he was wealthy because he was paid to escort a Hindu god around town for religious processions, while others credited their hardworking wives. It is also not unheard of for people to claim having inherited large sums of money. It is worth noting that this exercise has yet to be completed, and that no police officer has been prosecuted yet as a result of a lifestyle incongruous with their income (although some have been sacked). And yet, this does not ensure justice to the people of Kenya, and it goes against our constitution.

Chapter Six of the Constitution of Kenya (2010) speaks about leadership and integrity. The guiding principles of leadership and integrity include selection on the basis of personal integrity, competence and suitability, or election in free and fair elections; objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices; selfless service based solely on the public interest (demonstrated by: honesty in the execution of public duties; the declaration of any personal interest that may conflict with public duties); accountability to the public for decisions and actions; and discipline and commitment in service to the people.

State officers are expected to behave whether in public and official life, in private life, or in association with other persons, in a manner that avoids any conflict between personal interests and public or official duties; compromising any public or official interest in favour of a personal interest; or demeaning the office the officer holds. A person who contravenes this shall be subject to the applicable disciplinary procedure for the relevant office; and may, in accordance with the disciplinary procedure referred to in paragraph (a), be dismissed or otherwise removed from office. A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified is disqualified from holding any other State office. It further states that a State officer shall not maintain a bank account outside Kenya except in accordance with an Act of Parliament; or seek or accept a personal loan or benefit in circumstances that compromise the integrity of the State officer.

In addition to the constitution, we have the Anti-Corruption and Economic Crimes Act, Public Officers Ethics Act, Income Tax Act, Leadership and Integrity Act, and Proceeds of Crimes and Money Laundering Act, among others acts of parliament that dictate the conduct of public officers and other citizens, and define financial impropriety and its legal outcomes.

Given that these are the dictates of our constitution, and that there are other laws that have been passed to enforce these dictates, it is a wonder that the police officers sacked after the lifestyle audit/vetting exercise have not been taken to court, and it serves as an indicator of the outcomes of Uhuru Kenyatta’s vetting exercise. Some people who are implicated in this process may argue that they are being victimized, and that their constitutional right to own property is being contravened.

The Ethics and Anti-Corruption Commission (EACC), the body that would be tasked with investigating those found to be inexplicably living beyond their means, itself worked hard to stop its staff from being vetted. How can it be relied upon to investigate these public servants and take them to court? Vetting of the staff at the Kenya Revenue Authority (KRA) also stalled after junior staff threatened to expose the dealings of senior staff. Before the 2017 General Election, over 100 people running for office were found to have failed the standards of leadership and integrity. They were not barred from running. There is simply no political will to carry through with these exercises, and one wonders why that would suddenly change.

For as long as we rely on such gimmickry instead of enforcing a culture of servant leadership and integrity in public service as envisioned in our constitution, we will continue to find ourselves here, because the proceeds of corruption far outweigh the costs in Kenya.

Towards a Democratic Internet

Brenda Wambui
22 May ,2018

The web (and the rest of the internet) has become a space where citizens come to chat, share ideas, critique the government and explore ways in which Kenya can function better for its citizens. It is a space where one is sure to find the most robust discussions about what it means to be a Kenyan citizen. As the importance of this space has increased, it has also become a place to spread misinformation and disinformation, propagate harmful speech, silence dissent and promote violence. As such, it is important to fight for its openness – which allows us to freely express ourselves, debate our ideas – and uphold our democracy.

The Democratic Principles for an Open Internet serve as an important guide in our efforts to protect this space.

Freedom of expression is a key pillar of any democracy. Kenyans should be able to seek, receive, and impart information freely on the internet without censorship or interference. It is undemocratic to block websites such as Twitter and Facebook, and services like WhatsApp as many Kenyans feared would happen during the 2017 general election, or to throttle internet speeds, which likely did happen. The intended effect of such actions is to suppress free speech, and it is often accompanied by arbitrary content takedowns, paid political posting and in some cases, online violence intended to instill fear.

Freedom of assembly and association is also important – everyone has the right to associate freely through and on the internet for social, political, cultural and other purposes. Kenyan citizens should be able to meet up and organize (especially politically) online to further their goals. This means that the LGBTQI community, feminists, sex positivity and body positivity advocates, human rights defenders and activists among others should be able to use the internet to peacefully organize, exercise their democratic rights and advocate for those of others. It is undemocratic to threaten WhatsApp group administrators with arrest for content posted on their groups due to the potential for misuse of such power.

Accessibility of the internet is key – everyone has an equal right to access and use a secure and open internet. All Kenyans should have equal opportunity for access and participation online, and public stakeholders (such as the government) and private stakeholders (such as Safaricom, Facebook, Google and so on) should identify and address the inequalities that exist, particularly among women and other minorities. We must work to make internet access more affordable, and to increase infrastructure and coverage across the country, especially in rural communities.

Privacy and data protection online are paramount – we all have a right to privacy online. This means freedom from surveillance, the right to use encryption, and the right to be anonymous online. We also have the right to data protection, which includes control over our personal data (and its disclosure, collection, retention, processing and disposal). It is undemocratic for Kenyans’ communications to be surveilled by intelligence agencies. We need to fight for a data protection law and an authority to provide oversight, both of which we do not currently have. Kenyans also need to be educated on the importance of protecting the data, while the government needs to be accountable for all the data it collects and issues (for example, birth certificates, ID  and passport numbers, NHIF and NSSF IDs, KRA PINs, drivers’ license numbers and so on). How does the state keep this data safe? Who has access to this data? Do Kenyans consent for their data to be used for the purposes for which the state uses it? We need answers to these questions.

We also need to have personal safety and security online. It is undemocratic for the web to be a space used to threaten others with physical, sexual and psychological violence/harassment. The police, and the state at large, should take it seriously when people, especially women, report stalking, trolling, blackmail, revenge porn, and hate campaigns. Online violence is still violence, and online harassment is still harassment.

The internet must be inclusive – cultural and linguistic diversity must be promoted, and technical and policy innovation should be encouraged to facilitate plurality of expression. It is important, for example, that our government publishes information online in English and Kiswahili (which it rarely does), as many Kenyans do not speak English. Official state websites should also be accessible to persons with disabilities, such as vision and hearing impaired people. The online space in Kenya must also be structured in a way as to encourage the voices of women and other marginalized people so as to increase its inclusivity.

Network equality must also be assured – we should all have universal and open access to the content online, free from discriminatory prioritization, filtering or traffic control on commercial, political or other grounds. It is the basis of net neutrality – the idea that internet service providers should treat all content flowing through their towers and cables equally, without ensuring faster access to some sites and slower access to others. This is why net neutrality must be protected, and why Facebook’s Free Basics is dangerous. It is also why internet throttling during elections, for example, is undemocratic.

Standards are necessary to make sure these principles work – the internet’s architecture, communication systems, and document and data formats should be based on open standards that ensure complete interoperability, inclusion and equal opportunity for all.

Lastly, there has to be governance – all these principles mean nothing if they are not implemented atop the legal and normative foundations of human rights and social justice, which should be at the heart of how the internet operates and is governed. Multiple diverse stakeholders across sectors should be involved in internet governance, such as the government, civil society groups, private sector stakeholders, academia and the media should be brought to the table in a transparent and multilateral way, based on the principles of openness, inclusive participation and accountability.

This way, we can ensure that the internet in Kenya remains open, accessible and democratic.

Why We Should #Repeal162

Guest Writer
20 March ,2018

by Elizabeth Kabari

You may have seen the hashtag #Repeal162 on your social media feeds recently. Some of you are sure that it concerns you; others are sure that it doesn’t. However, it should concern everyone because it is a human rights issue, and the denial of rights for one is a denial of rights for all.

The #Repeal162 movement is a part of the struggle for the recognition and protection of the rights of the LGBTQIAPK community in Kenya. It consists of 2 ongoing court cases: Eric Gitari v Attorney General & another (Petition no. 150 of 2016) and John Mathenge and 7 others v Attorney General (Petition no. 234 of 2016).

The main purpose of these petitions is to ask the court to declare Section 162 (a) and (c) and section 165 of the Penal Code (Cap 63) as unconstitutional and therefore inapplicable in Kenya.

Section 162 of the Penal Code makes it a felony, punishable by 14 years’ imprisonment, for any person to:

  1. have carnal knowledge of any person against the order of nature; or
  2. have carnal knowledge of an animal; or
  3. permit a male person to have carnal knowledge of him or her against the order of nature.

Additionally, where the above acts are performed without the consent of the other person or where consent was obtained through force, coercion, lies etc, the prison sentence goes up to 21 years.

Section 165 is similar and states that:

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.

Both sections fall under the chapter 15 of the Penal Code which provides for “offences against morality.” The Penal Code we have is basically copied and pasted from 19th Century Colonial English criminal law. This chapter in particular exists to ensure that Christian principles, which were very important in England at that time, could be more thoroughly enforced. This is illustrated by the language used in the chapter.

For example, Section 151 criminalises the “detention of females for immoral purposes” while Section 153 criminalises persistently soliciting or importuning for “immoral purposes”. The phrase “immoral purposes” as used in these sections means a sexual purpose. This conflation of morality and sex is a very Judeo- Christian idea. Furthermore, Section 165 criminalises “gross indecency” between men. The term “gross indecency” is defined by the Oxford dictionary as “a term formerly used to denote certain criminal offences, in particular sexual activity between men (before this was decriminalized) and sexual offences against children”. The Judeo-Christian influence shines through here too.

The purpose of the law should not be to enforce morality, Christian or otherwise. Law should be a means by which people’s behaviour is regulated to ensure they do not harm each other and can co-exist peacefully.

What’s the difference? Morality is a fluid and subjective code. Every culture, religion, group has its own moral code, and this code is constantly changing and evolving to suit the needs and context of the people. Therefore, the law cannot be a tool for enforcing morality in non-homogenous societies such as Kenya which consists of at least 44 tribes, at least 6 religions (if you cluster all the various Christian denominations into one religion and traditional religions into another), 3 main economic classes…the list goes on.

With all this diversity, it is impossible that we will all subscribe to the same moral codes, and even more impossible that we will all agree on Christian morality as the way to go. Thus, the law should be neutral.

This concept is acknowledged in our Constitution. We note that one of the reasons we adopted our Constitution is because we are “…proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation.” We recognize that to live in peace together, we need to come up with a common set of supreme rules which bind and protect everyone. We accept that we cannot depend on our individual moral codes if we are to co-exist because if we do so, we exclude Kenyans who do not subscribe to the same code from protection and recognition by the law.

In the case of Section 162 and Section 165, we have not only excluded the LGBTQI community from protection by the law, but also justified their persecution.

Furthermore, there is no definition in Cap 63 of the phrase “against the order of nature” which is used in Section 162(a) and (c). If we were to interpret is as lay people, there would also be no way to determine what the “order of nature” is. Nature is as nature does and thus varies from species to species and from time to time.

However, the Kenyan courts have accepted that whatever this phrase means, it includes sodomy, more specifically, anal penetration of one man by another. This interpretation is one that was inherited from England, just like our Penal Code. I used the phrase “includes sodomy” because, from my understanding of the Kambi case referenced above, sex that is “against the order of nature” does not seem to only be limited to sodomy. Hence, case law only gives us a partial definition.

If we are to assume based on this partial definition and our understanding of the origins of the Penal Code, and purpose of Chapter 15 in particular, that the natural order of sex is sex for procreation, then any sex that cannot result in reproduction is outlawed by Section 162(a) and (c). This includes: oral sex, hand-play, anal sex etc. It is irrelevant whether the sex is between heterosexual participants or homosexual participants.

Section 162(c) makes it clear that consent is not a defence as it expressly outlaws consensual sex merely on the grounds that it is “against the order of nature”, that is, against the Christian idea of what sex should look like. Meanwhile, Section 165 criminalises all sexual activities between men regardless of whether there is consent or not, because that is not how Christianity envisions sex. The criminal element in these sections is derived purely from the kind of sex being had, not because there is anything inherently wrong with said sex, but because the Bible decreed it to be wrong.

While there is nothing wrong with subscribing to Christian ideals when it comes to sex or anything else, this is a personal and private decision in which the state should not interfere. Similarly, where people choose not to subscribe to Christian ideals, the law should not interfere. The law only comes in when, in upholding their beliefs, a person goes against the supreme rules that we have all agreed on – the Constitution. For example, in the case of sexual relationships, the law should only come in where a constitutional right is violated, such as nonconsensual sex, which violates the right to human dignity (Article 28) and the right to freedom and security of the person (Article 29).

By forcing Christian ideals on all Kenyans, Section 162 (a) and (c) and Section 165 violate the right to freedom from discrimination (Article 27), the right to privacy (Article 31), and freedom of conscience and belief and opinion (Article 32).

Finally, there’s the issue of enforcing these sections. When addressed promptly and efficiently, it is easy to prove sodomy (in this instance, I use sodomy to mean the nonconsensual anal penetration of one male by another) and bestiality. However, in the case of the consensual sex criminalised by Section 162(a) and (c) and Section 165, how can you prove anything happened?

In the first place, you have no victim(s), thus no complaint to the police and no P3 form. This means no material evidence.  And, unless this sex was had in public, you have no witnesses and consequently, no oral evidence. How can you prosecute such a case? You can’t; at least not successfully.

Because of the difficulty in actually proving these cases, the police seldom bother to follow through with arrests made under Section 162 and 165, unless the offence complained of is sodomy or bestiality. However, this does not stop police from raiding gay bars and other gay-friendly spaces to harass patrons, threaten them with charges of prostitution and sodomy, and in some cases, arrest and extort them for money. This is a blatant violation of human rights.

Chapter 15 also leads government officials to believe they have the power to outlaw events that they think promote homosexuality. While such declarations have no standing in law because they are procedurally defective, they are still effective and interfere with the lives of Kenyans generally, be they part of the LGBTQI community or not.

Whichever way you look at it, be it from a validity standpoint or from an enforcement point of view, Section 162 (a) and (c) and Section 165 of the Penal Code have no place in Kenya. They call for the State to insert itself where it does not belong and interfere with Kenyans’ enjoyment of their rights. They also enable the harassment and extortion of Kenyans by police. 

Most importantly, they threaten the diversity we cite as a point of national pride in our Constitution. which is why we all need to support the #Repeal162 movement.

Elizabeth is an advocate with a passion for human rights and a love for research and reading.

Devolution and The Shisha Ban

Guest Writer
30 January ,2018

by Elizabeth Kabari

On 28th December 2017, the Public Health (Control of Shisha Smoking) Rules were gazetted and came into force. These rules effectively banned the manufacture, importation, sale, and use of shisha by criminalising these acts. Anyone found doing any of the above shall, upon conviction, be liable to pay a fine of not more than KES 50,000 or be imprisoned for a term not exceeding 6 months, or be made to pay the fine and serve the sentence. If you continue to repeat any of the above offences, you also get fined KES 1,000 for every additional day you continue to break the law.

The rules were made by the Cabinet Secretary for Health, Dr. Cleopa Mailu. The CS explained that the rules were made to protect public health – he claims that, in addition to being harmful in itself, shisha is a gateway to other drugs such as heroin. He therefore made the rules pursuant to his power under the Public Health Act, specifically Section 36(m).  

These rules have caused a lot of uproar both online and offline, with former Chief Justice Willy Mutunga tweeting that the ban “smirks of hypocrisy and dictatorship” and shisha traders moving to court to get the ban lifted. However, what I find most striking about this ban is that it shows that the government still doesn’t fully understand how devolution works. Here’s why:

Eight years ago, Kenyans adopted a new constitution. It was hoped that this constitution would usher us into a new era of citizen-centred governance which focused on human rights, true democracy and equitable distribution of resources. To this end, a key element of the new constitution was devolution; that is, the separation of the government into two levels: the county level and the national level. Powers and functions were then divided between these levels so that we can improve the delivery of public services to wananchi and enable Kenyans to effectively govern themselves.  

One of the functions that was devolved was health. The Fourth Schedule of the Constitution devolved health as follows: the national government was tasked with creating health policies and managing national health referral facilities (that is, Kenyatta National Hospital and Moi Teaching and Referral Hospital). The county government was tasked with managing county health services which includes all other hospitals and pharmacies, ambulances, primary healthcare etc. The counties were also tasked with controlling drugs and pornography.

The transfer of the function of health from the national government to the county governments was completed in August 2013. However, to date, many of the laws which existed before 2013, have not been amended to reflect the changes brought on by devolution.

The Public Health Act is one of these laws – it still has provisions that are not in line with the Constitution and therefore have no force in law because the Constitution supersedes all laws. Unfortunately, Section 36 of the Public Health Act is one of these sections. It empowers the CS to make rules where “any part of Kenya is threatened by a formidable epidemic, endemic or infectious disease.”  

The function of preventing epidemics is a part of primary healthcare which makes it a county government function. This means that the powers given to the CS under Section 36 are, in this new constitutional dispensation, not actually his to exercise. The only power the CS has is the power to create policy (not law) to guide counties on how they should deal with such diseases.

Even if the above was not the case, and prevention of epidemics was a national function, the rules would still have been based on shaky legal ground. This is because Section 36 of the Public Health Act applies to formidable epidemic, endemic or infectious diseases. To clarify which diseases these are, the Act provides a list. They include smallpox, plague, Asiatic cholera, yellow fever and sleeping sickness or human trypanosomiasis (basically, serious diseases that are be passed by air, contact, being bitten/stung etc).

The diseases caused by shisha include cancer, heart disease and respiratory problems. None of these are diseases that the Public Health Act considers formidable epidemic, endemic or infectious diseases. Therefore, they are not covered by the powers given to the CS in Section 36.

The purpose of the rules, as their title succinctly puts it, is the “control of shisha smoking.” The rules then proceed to define shisha as “…tobacco products that may be flavoured or unflavoured…”. As we all know, tobacco is a drug. In a nutshell, the purpose of the rules is to control a drug. Control of drugs, as we’ve already seen, is a county function. The Cabinet Secretary cannot perform it. The most he can do is issue a policy to guide the counties on how the they should tackle the issue.

Despite all these legal barriers, the rules were made and gazetted into law. Consequently, we now have a law that has been passed by an organ of government that had no power to pass it, which regulates a matter that the organ has no power to regulate. This puts us, as a country, in a very confusing place: do these rules have the force of law? Are we bound by them? Assuming someone is arrested for manufacturing, selling or smoking shisha, can they be tried?

Hopefully, the courts shall answer these questions and give us a precedent for how we should proceed when such circumstances arise (because they surely will). Until then, it seems we’re confined to a life without shisha.

 

Elizabeth is an advocate with a passion for human rights and a love for research and reading.

In The Name Of Freedom

Brenda Wambui
3 October ,2017

On 1st September 2017, Kenya’s Supreme Court made history by annulling the August 8th presidential election. In a 4-2 decision, they determined that the recently concluded presidential election was not conducted in accordance with the Constitution and was invalid, null and void. The election was not transparent, and could not be said to be free, fair and credible. There were also errors in the tallying system that compromised its integrity. As such, the Supreme Court ordered a fresh presidential election within 60 days of the ruling (the date set by the Independent Electoral and Boundaries Commission was originally October 17th, but has now changed to October 26th 2017). This was a win for justice, credibility and democracy; it was also an assertion of judicial independence and a moment of pride for many Kenyans.

Initially, Uhuru Kenyatta seemed to accept the ruling, albeit bitterly, but that has since changed. He held a rally at Burma Market in Nairobi where he called the Chief Justice and other Supreme Court Judges wakora (crooks), and said that they should know that they are dealing with a sitting president. Funny, former Deputy Chief Justice Nancy Baraza was witch-hunted for a scuffle with a security guard in which she told the guard that she “should know people” but the president of Kenya did the same to the head of the judiciary and was met with cheers. I await the witch hunt.

He also said “Let those five, six people know, since the Kenyan people will still decide, they should wait for us to act after the people have made their decision. We are keeping a close eye on them. But let us deal with the election first. We are not afraid.” He has accused the Supreme Court of carrying out a judicial coup and subverting the will of the Kenyan people, and has threatened to cut them down to size and teach them a lesson when (not if, note the confidence) he gets reelected. He has said that there is a “problem” and we “must fix it.”

The Chief Justice, on behalf of the Judiciary, has since responded to these attacks in a statement, saying that they would not allow anybody to dictate to them how to discharge their mandate as given by the people of Kenya under the constitution. He mentioned that the Judicial Service Commission (JSC), the body charged by the Constitution under Article 172 with the responsibility of promoting the independence and accountability of the Judiciary, took great exception to these attacks, which are a vile affront to the rule of law and must be fiercely resisted.

He further stated that the JSC and the Judiciary would not cower to these intimidating attacks, that they would remain steadfast in defending the judges and the institution from unwarranted attacks, and that they would always be at the forefront of defending the cardinal principle of decisional independence of judges, and would at no time direct any judicial officer on how to decide on the cases before them. He reassured Kenyans that the Judiciary was prepared to handle all election-related disputes, at all levels, swiftly and fairly and without fear or favour, and that they were willing to pay the ultimate price to protect the constitution (since the police had failed to protect them).

In all this, it has become apparent that Uhuru Kenyatta either does not have a firm grasp of the constitution, or that he does and simply doesn’t care what it says. When he accused the Supreme Court of subverting the will of the people and not having the authority to act as they did because they are not elected, I wondered if he was aware that the constitution from which he draws his authority was the same one that creates the Supreme Court. That this constitution reflects the will of the Kenyan people, and that when the courts make a decision, they act on our behalf, with the authority we have vested in them, just as when Parliament makes a decision, they make it on our behalf (this is arguable, though). The constitution that makes declares the president a symbol of national unity (it should read “symbol of national division” in Mr. Kenyatta’s case) empowers the Judiciary to render justice without fear.

The threats by Uhuru Kenyatta and his Jubilee Party cohorts must also be treated very seriously in this country where lives are disposable, and in which people are disappeared for speaking and acting against the establishment. Coupled with the fact that the Chief Justice has stated that the police are not providing adequate protection to judges (he said that the Inspector General, Joseph Boinnet, had repeatedly ignored calls to act on the threats to the Judiciary), one can only imagine what the establishment has in store for them.

Perhaps the most outstanding aspect of this attack on judicial freedom has been Uhuru Kenyatta’s bold coming out as a fascist. As Rasna Warah states:

In this cut-throat world of wheeler-dealers, wealth and power are concentrated in a few, who re-write society’s rules to their own advantage. Issues such as environmental protection and social justice have become peripheral. Democratic institutions are being weakened and the media and intellectuals are being vilified. Fascism – the feverish exaltation of ethnicity, race, nation or religion above the rights of the individual – has become the new normal.

As a fascist, he finds great company in his contemporaries, chief of all Donald Trump. Both of them are champions of nationalism (ethno-nationalism in Uhuru’s case, in which the Kikuyu are chosen to lead. This is the foundation of uthamaki ideology). Both have a disdain for human rights, and rather than speak for their causes, they rally their supporters behind a perceived enemy (Raila Odinga and the Judiciary in Uhuru’s case). Both are sexists (Uhuru’s sexism and misogyny shines bright in his inability to move the majority he controls both in the Senate and National Assembly to pass the Two-Thirds Gender Bill). Both fight the media (Uhuru Kenyatta has famously said that newspapers are only good for wrapping meat) and are obsessed with militarization and “national security.” Both are known to call to God and religion when it suits them (while acting in decidedly “ungodly” ways the rest of the time).

Both Uhuru Kenyatta and Donald Trump fight for the rights and power of corporations while suppressing the rights and power of the workers. Both have a disdain for intellectuals and the arts (Uhuru Kenyatta’s government is currently overseeing a travel ban for academics), and are obsessed with talk about crime and “punishment” (as you can see from Uhuru’s threats to the Judiciary). Most of all, both are guilty of rampant cronyism and corruption (Uhuru Kenyatta’s government has been said to be the most corrupt in Kenya’s history. He even had the gall to ask us what we want him to do about it).

It is up to Kenyans to take up the example set by the Judiciary and resist our fascist president and his cronies. We have got to be active citizens and stand up for freedom.

Justice On Trial

Guest Writer
3 January ,2017

by Robert Munuku

“We were bundled together in military trucks and taken straight to Naivasha Maximum Security Prison. On arrival, I was locked up in solitary confinement for two months without any communication or reason as to why I was locked up,” retired Airforce Captain, Frank Mũnũku, recounting the 1982 attempted coup d’état in Kenya.

*

The year was 2012, a time that would later prove critical for my family in more ways than one. It was towards the last part of the semester and I was preparing for my final exams at the University of Nairobi, more specifically, I was reading ‘Philosophy of Law’ (or, jurisprudence). St. Thomas Aquinas defined the law as ‘a certain rule and measure of acts whereby man is induced to act or restrained from acting’. In other words, he saw the law as a disposition of reason, one whose relevance was only actualized in as far as it served the ‘greater good’ for the public. This would also be the same year that marked the 30th anniversary since an attempted coup d’état orchestrated by then Kenya Airforce private, Hezekiah Ochuka. Ochuka and a few others would later become the last Kenyan citizens, to date, to be executed after a death sentence ruling. My father, Frank Mũnũku, was a captain at the Kenya Airforce and was now, three decades on, seeking justice for victimization in relation to the botched coup.  

It is said that time heals, I however believe that such a recovery can only be a product where justice is a necessary part of the equation. In my father’s case, recovery was only half done after a three plus decade moratorium and it was finally time to seek reparation for ills done unto him.

My first conversation with him more than showed this, as he narrated:

“When young servicemen tried to overthrow the Government on 1st August 1982, I was not in my Barracks at Embakasi.  I was with my battery in Wajir Air Base guarding the airfield and carrying out my duties as assigned. The officers who were said to be the ring leaders were not in my Battery and I did not even know them.  I was informed by my radio operator about the coup in Nairobi on that Sunday morning. My first reaction was to call all my officers and soldiers to a parade and tell them to remain calm and await instructions for I had no idea what was happening.

I tried to call my base at Embakasi but could not get through. Inside the Air Force Base at Wajir, there is always an army battalion with its own camp and has its own operational procedure which does not interfere with Air Force operations. During this time it was under the command of Lt. Colonel Thirimu. His deputy was Captain Dan Munene – both officers were known to me.

I decided to go to the Army camp to find out if they knew what was happening in Nairobi. I found the commanding officer and his deputy and they told me that they did not know anything besides what I had heard on the radio. The commanding officer told me to tell my men to remain calm and wait for instructions. I went back to my camp and did exactly that.

My officers and men remained calm as I had instructed them and there was not a single incident of indiscipline. The following day Lt. Col. Thirimu and Capt. Munene visited me at our Air Force camp and informed that he had received instructions from Army Headquarters to disarm my men and I, and carry our interrogation on us to find out what we knew about the coup.

I obliged and ordered by my officers and me to hand over their weapons to the Colonel without any problem. The Colonel then set up one of the rooms for interrogation. ,During the interrogation, the Colonel asked me what I knew about the coup. I told him I did not know anything or anyone who could have planned it. He then ordered for me and a few of my officers to be locked up at the Police Station at Wajir to await transport to Nairobi.”

This was the first encounter I had with what would follow as a series of narratives depicting the dehumanizing treatment my father and other colleagues received at the time. The law is to be obeyed, that is the underlying philosophy of any law or rule. Obedience is usually a functional value and often laws followed lead to a better state of life for those that the laws govern. My father’s description of the insurrection of the 1982 coup, coupled with events that were consequential, is a crystal clear analogy of how the law and its obedience or disobedience oscillates on the same paradoxical axis. My father was actually following the protocol required to escalate a crisis of such a nature but irony would later punish his obedience and respect for the same protocol.  

*

“As a Captain I was earning about KES 3,600 and a Hardship Allowance of KES 1,200 since most of the time I was out in the field.  Thus my salary in total was KES 4,800 per month.”

*

My father eventually got legal counsel and took the government to court. In our country, sadly so, it is not often the case that an individual wins a legal battle against the government even when the facts are as clear as the light of day. One such rare case is that of Judy Thongori, a Kenyan lawyer who successfully sued the Kenyan government for not delivering on the legislated 30% of women representation. Another is that by transgender activist, Audrey Mbugua who, after taking the KNEC (Kenya National Examination Council – a government parastatal) to court, successfully had her name changed on her school certificates. My father too, oddly enough, was eventually successful against the government, 2 years after he had revived past horrors by way of a lawsuit.  His ruling read: –

*

In a nutshell, judgment is hereby entered in favour of the Petitioner against the Respondent in the following terms;

  1.         a)       A Declaration that the cruel, inhuman and degrading treatment subjected on the Petitioner upon his arrest and being taken into police custody and subsequent detention in the various prisons constituted serious breaches of the Petitioner’s fundamental rights and Freedoms as to liberty, humane treatment, and freedom against arbitrary  interference with his privacy, family and home, and right to earn an honest living as guaranteed under the Repealed  Constitution and Constitution of Kenya, 2010.
  2.      b)      A Declaration that the detention of the Petitioner for eight  (8) months with two months under solitary confinement (incommunicado) without arraigning or charging him in Court with any offence known under the law violated the Petitioner’s right of personal liberty under Section 72 of the Repealed Constitution and was illegal and a violation of the Petitioner’s fundamental right to equal protection of the law under Section 70(a) of the Repealed Constitution (now  Articles 27(1)&(2) of the Constitution of Kenya, 2010) and further grossly violated the Petitioner’s right to a fair administrative action as provided for under Article 47 of  the Constitution.
  3.        c)      General Damages of Kshs. 5 Million consequential to the Declarations of violations of the Petitioner’s Fundamental Rights and Freedoms.
  4.       d)      costs of this Petition.
  5.       e)      Interest at Court rates on (c) and (d) above.

Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Irene – Court clerk

Mr. Amolo holding brief for Mr. Gikaria for Petitioner

*

The ruling, however, was a short-lived triumph, one that would later prove as a battle, rather than a war, won. The next phase of getting compensation from the government was the real fight and, to date, the government has not paid my father for his false incarceration and torture, the latter being a somewhat abstract thing to compensate – how does one qualify what is a ‘good enough’ compensation for psychological trauma? Initially, when my father had began the process of seeking legal redress, I battled internally with this question: what amount of money would be enough to heal psychological scars or how can one be even compensated for time lost? I then went on to get a detailed account of the psychological experience that my father went through, again, from a conversation with him which he vividly recollected:

“(…) my being locked up was just the beginning of a long and very painful experience. Being the boss, I was locked in a cell alone with nothing but a rug to sleep on. For three days I did not have any food or water. The heat and mosquitoes were beyond human imagination. By the time I was taken out on the third day I could hardly talk. I still have problems with my throat since that day. In the afternoon of the fourth day we were taken back to the camp where we found an aircraft waiting to take us to Nairobi together with the other officers. I was not allowed to go back to my room to pick up my belongings. I therefore lost all my clothes, a camera and a very expensive music system that I had bought in Wajir town.

We arrived at Eastleigh Air Force Base at around 7 pm. On arrival we found many other officers and servicemen. We were bundled together in military trucks and taken straight to Naivasha Maximum Security Prison. On arrival, I was locked up in solitary confinement for two months without any communication or reason as to why I was locked up.

In the third month, I was taken for interrogation. During the interrogation, I was told to tell the panel what I knew about the coup. I told the interrogating officers that I knew nothing and that I was in Wajir when it happened. One of the officers asked me why I was arrested if that was the case. I replied that I had no idea and that they should call Lt. Col. Thirimu and ask him why he arrested me. I was taken back to solitary confinement and kept in incommunicado for another three weeks which seemed like three years due to loneliness. I was treated like an animal. Even the guards who brought me food never talked to me.  They would not even respond to my greetings.

After three weeks, I was taken back for interrogation. I was not asked any questions; instead, the officer in charge told me that they had contacted Lt. Col. Thirimu and had indeed concluded that I did not know anything about the coup. I thanked him and, thinking that now that they knew I was innocent, they would release me and I would report back to work. However, I was instead taken back to the cell and locked up, this time along with my colleagues.

Another two months passed and I was still languishing at Naivasha Maximum Security Prison. After the Christmas of 1982, we were transferred to Kamiti Maximum Security Prison. The living conditions in this prison were horrible. Most of us suffered from diarrhea because of the pathetic food we were being given. We remained locked up there until 9th March 1983. That was the time we were released and given one month’s salary to buy clothes as we were still in uniform.

Despite the fact that the interrogating officers found me innocent, I was not released but was instead punished further for no reason at all. When I was released, I found that my wife and child had been evicted by the army from the married quarters which had been allocated to me by the Air Force. Most of my household items were broken or lost during the eviction process. My wife was traumatized as she did not know where I was all that time and whether if I was alive or not.

That week I reported to the Department of Defense to find out if I could go back to work. The officer who received me informed me that I had been fired and that I should report back to him for my certificate of service after a week. I asked if I could see the senior officer in charge to find out why I had been dismissed yet I had been informed that I was innocent. However, I was refused to see him and told to go away. I was so disgusted that I did not go for it until 1990, the same year that my third child was born. That is when I saw that my commission had been terminated for no reason at all.”

*

The government actually appealed thrice to no avail and the court was adamant that compensation be made as per the initial ruling.  As citizens of our country, we are left wondering whether we should obey the law if the government itself, a custodian of the law, cannot.  Why should an individual follow the constitution if the government cannot?  Should students pay their loans to government if the government cannot pay compensation (of which a court of law has instructed) to those it has wronged?  How credible is our government?  These questions are but a taste of the stark realities that face Kenyans on an everyday basis, and I, like them, ask the same questions too.

Robert Mũnũku is a visual artist, writer & filmmaker based in Nairobi. Mũnũku is also the founder of Mau Mau Collective which is an organization that seeks to create a strong network of independent visual artists, filmmakers & performing artists on the continent. He also serves as the Regional & International Dialogue Coordinator for the Heinrich Böll Foundation (East & Horn Of Africa). Follow him on Twitter @robertmunuku

Free Speech vs Hate Speech

Guest Writer
25 October ,2016

by Dr. Sakulen A. Hargura

“In a free state, tongues too should be free.”

Erasmus

Freedom of speech is a fundamental and an inalienable part of all constitutions penned in post-agrarian revolution era. So ingrained is the concept of free speech that to violate it is tantamount to dictatorship. All totalitarian regimes in the past began their control of the masses by muzzling the people, hence violating this right. Only by suppressing the truth and spreading the lies do dictators hold on to power.

Philosophers as well as leaders, more so political leaders, have struggled with the idea of free speech. For the philosophers it is about balancing the line where ones freedom of expression equates to infringing on the rights of another free citizen. Political leaders however do not concern themselves with the ideological concepts and debates but rather have always found the whole idea of freedom of speech wanting. The struggle, though hinged on the same idea, is worlds a part.

 To the ruling class, there is only so much the common citizen can say before harming or defaming the leader. In a democracy it is about how truth is told while in a dictatorship it is about whose truth is told. To tell the difference is no rocket science.

However, in modern day democracies, more specifically in stunted African “democracies”, not only has threshold for defamation been set so low but the fibre of tolerance has also been lost to the winds of power. The term for gagging the free minds: Hate speech.

What is hate speech? Is it a form of defamation? Who decides that the words off a tongue contain in them the poison that is hate? Just how is a whole commission constituted to hunt for slanderers while a private citizen can simultaneously sue for defamation or character assassination? What assurances can the laws give that the same cannot be used to bar the free minds from speaking freely? Does truth, however unpalatable to those in power, constitute hate speech when revealed to the unsuspecting public against the will and wishes of corrupt leadership?

These are some of the many questions that go unanswered as many young activists are bullied with arrests on flimsy grounds of hate speech, sued for revealing the truth about those in power.

In the modern day world of super power states and bodies like UN that play the oversight role, outright dictatorship that ensues after a coup is discouraged (if not hindered) by the inevitable embargoes that then erode the gains such crazy leaders could derive from staying in power. The days when leaders attempted coups purely for public interest are gone. These days it is all about self interest or the interest of a third party (that heavily invests in the coup by oiling the war machinery of the soldiers on the ground).

The dwindling numbers of coups should not augur the notion that leaders have somehow lost the urge to cling to power once they set foot in the highest offices. It is not the craziness that is lost but rather the fear of repercussions that is forcing rogue, power-hungry political leaders to resort to less damaging ways to cling to power. It is just a matter of one age-old primitive feeling hindering open expression of the other. Many have perfected the art of modern day dictatorship, which mostly plagues developing democracies. Some otherwise developed democracies such as Russia, and lately Turkey, have also seen a fair share of this.

These leaders prosecute to persecute. They do not ban free expression but bring libelous suits to silence their critics, mostly activists, in the name of defamation. With money and power, they intimidate the critics. They also maximize on all opportunities to crash their opposition, including the free press (which is not loyal or perceived to be a hindrance). Erdogan of Turkey, for example, has filed over 2000 lawsuits for defamation and closure of multiple media houses, and caused the arrest of many journalists.

Our own leaders have recently resorted to these tactics to not only silence their critics but also curb free discussions regarding their corrupt deals. There is a commission (the NCIC) used to subjugate the voices of reason with words such as “hate speech” freely thrown around. The aim is obviously to drive fear into the hearts of activists, many of whom have no means to defend themselves against such law suits or even a possibility of an inquiry by a commission.

The repressive media bill by Kenyan parliament was also one such awful step in the wrong direction. It was an arrow tactfully placed in the quiver of the leadership that wants to defile our already malnourished, juvenile democracy. It set to lower the threshold for tolerance and fertilize the ground for totalitarian leadership to prosper. We may not be there yet, but all the ingredients are in the kitchen. The same tactics of fear-mongering to dissuade critical yet poor minds with hefty financial penalties have been used as a deterrent for the oppressed poor.

While there is no absolute freedom of expression, because of obvious violation of individual rights, the threshold for “hate speech” should be set high enough to accommodate the free unwavering minds and pens. Those in positions of power, more so political leaders, should be subjected to a much higher scrutiny since they are trusted with national coffers. Those that bravely wade in darkness to reveal truth that is of public relevance should not therefore be approached with “guilty until proven otherwise” attitude by the police or any other body that wields the power to investigate and prosecute. In fact, the law should set bar of tolerance way higher for criticism of those holding public office and the political leaders.

Sakulen Hargura is a medical doctor presently pursuing masters in surgery in Turkey. He loves to read, and writes poetry as well as a weekly opinion piece for the Marsabit Times.