As far back as our collective memory as a species goes, land has played, and continues to play, an important role as both an economic resource and the basis on which we organize ourselves, be it in ethnic groups, nations, continents and so on. In economics, land comprises all natural occurring resources whose supply is inherently fixed – be it the land itself, mineral deposits, the atmosphere and so on.
In classical economics, it is considered one of the three factors of production, alongside labour and capital, and while we have managed to liberalize the capital and labour markets (to put it simplistically, you are able to acquire external sources of capital, from banks for example, and increase your production while paying an interest for the provision of the capital, and you are also able to hire labour for wages/salaries and benefits), the land market remains far behind in most economies and societies. Land remains one of the biggest causes of disputes and wars, and has played a role in most, if not all, systems of oppression, from slavery, colonialism, tribalism, sexism and so on. Wars continue to be fought over oil and minerals, and land reform remains a utopic dream for many around the world.
So, when I saw that in line with our constitution, we had passed the Community Land Act (2015) just ten days before the prescribed deadline, I breathed a sigh of relief, perhaps prematurely. Land has played a prominent role in all major clashes we have had as a country, and despite the prevalence of customary law in most ethnic groups, before the passing of this law, their community land and resource rights were not protected by the state.
The Act provides for the recognition, protection and registration of community land rights, management and administration of community land, and the role of county governments in relation to unregistered community land. It seeks to move Kenya from a society in which land ownership is individualized to one where the focus is on communal ownership for the larger benefit of communities. It aims to resolve the problem of illegally acquired community land and community land disputes, set apart community land for public purposes and provide conditions for holding of unregistered community land in trust by county governments. Under the (now repealed) Trust Land Act, communities could be dispossessed of their land through irregular allocation by County Councils, especially to individuals.
However, when we drew up the National Land Policy (2009) and the Constitution of Kenya (2010) we took the first bold steps towards correcting these atrocities. According to the constitution, community land consists of land lawfully registered in the name of group representatives under the provisions of any law, land lawfully transferred to a specific community by any process of law, any other land declared to be community land by an Act of Parliament; and land that is either (1) lawfully held, managed or used by specific communities as community forests, grazing areas or shrines; (2) ancestral lands and lands traditionally occupied by hunter-gatherer communities or (3) lawfully held as trust land by the county governments, but not including any public land held in trust by the county government under Article 62 (2).
Under this new law, any unregistered community land will be held in trust by county governments on behalf of the communities, and community land cannot be disposed of or otherwise used except in line with legislation specifying the nature and extent of the rights of members of each community, individually and collectively. This is important, as it vests ownership and dominion over the land in the communities it belongs to, and unlike before, we specify that both individual and community rights must be respected when it comes to the use of the land. Communities in this case are identified on the basis of ethnicity, culture or a similar community of interests.
It affords equal status and recognition of title to community land with other titles, and empowers community members to determine the management and administration of their land, affording all members equal rights, and (hopefully) eliminating discrimination. The National Land Commission will appoint an adjudication officer for every community registration unit who will be in charge of land adjudication, including recording the community land claims. These communities will be vetted to ensure there is no discrimination or registration of illegal communities. Given our history as a country, we need to be very careful with this process so as to not further dispossess people of their land.
Upon adjudication, the title relating to community land will be issued by the registrar. Community land may be registered in the name of a community, a clan or family in accordance with the customary practices applicable, or a community association in accordance with the document constituting the association. During the registration process, a public notice shall be broadcast on a radio station 30 days before the land is registered as community land, as well as in a conspicuous place on said land. The community involved will be engaged and made aware of their land rights, and they will draft and validate of a constitution that will govern community land and natural resources. They will then form the relevant community institutions, and the title will be conferred to them.
The institutions in question are, firstly, the registration of the community as a legal corporate entity (with a common seal and legal powers to sue and be sued, to enter into contracts, to acquire, purchase, hold, charge and dispose of property, and the power to borrow money). A community assembly is also required, and consists of all members of the community. Such an assembly shall then appoint a community land management committee of seven to eleven members to administer the land on a day to day basis. The committee must have gender balance and include person(s) with disabilities.
There shall also be community land management boards established in every sub-county where there is community land. The board will act as a watchdog of the community land management committee(s) and can recommend to the community assemblies to review or suspend a decision of a committee if the committee acted in bad faith, recommend to the community assembly the removal from office of any member of the committee, and make rules of conduct and procedure for the committees. The board will be required to set up dispute resolution mechanisms in accordance with a community’s constitution for resolving disputes. Priority shall be given to alternative dispute resolution mechanisms, and a person can go to court only if aggrieved by a decision of the board, though he/she may first appeal to the community assembly prior to moving to the court.
It is important to note that community land can still be converted to public or private land. It can be converted to public land through compulsory acquisition, transfer or surrender, as long as this conversion is approved by the community assembly. It can also be converted to private land upon approval of the community assembly through transfer, in accordance with the Land Act (2012) any other applicable law. Conversely, both public and private land can be converted to community land as well.
Natural resources found in community land shall be used and managed sustainably for the benefit of the whole community, with transparency and accountability and with equitable sharing of benefits. Every community that finds such resources will prepare a natural resource management plan in consultation with relevant state agencies, and assess and document natural resources within the land. Any investment related to exploitation of natural resources in community land shall also be on the basis of an agreement between the investor and the community.
Many questions have been raised about the Act, including whether the people holding this land in trust on behalf of the community will uphold the best interests of the community, and what we plan to do about the overlaps between community land and public land. What happens when nomadic or pastoralist communities define forests, which are classified as public land, as their ancestral land? And, will the Ministry of Lands co-operate and help this process go over smoothly? As this law was passed recently, we do not have the answer to these questions. What we can do now, though, is act. With over 60% of the land in Kenya qualifying to be community land, this is a very important law. Communities can begin to organize and ready themselves to claim what is rightfully theirs, and in the cases where there are hindrances, they can hold both the state and county governments accountable. This is yet another opportunity to heal and right the wrongs visited upon us by the colonialists, and the subsequent post-colonial governments.
English literature classes were one of the few things I liked about the Kenyan high school experience. In my year, we studied William Shakespeare’s The Merchant of Venice, a play about many things, but central to which was the plot about the Venetian moneylender Shylock (who was Jewish), who lends the Christian shipper Antonio money. Antonio’s friend, Bassanio, needed the money to woo Portia, a Venetian heiress. Because of Antonio’s anti-Semitism towards Shylock, the conditions of the loan are pretty steep: Antonio was to pay up in three months or Shylock would have a pound of his flesh. This being a Shakespearean play, of course Antonio doesn’t manage to pay the money back in time and a dance around the pound of flesh Shylock is owed becomes central to the plot.
In the years that have passed since Shakespeare wrote this play, the word Shylock has come to mean a (ruthless) moneylender that charges extremely high interest rates. Shylocks are also called loan sharks. However, given that definition, and the disdain with which Kenyans hold their banks, I would think they also fit the description. Many of us have come across stories of bank loans causing people so much stress that they are hospitalized, or worse, die. I am reminded of this story I read on Larry Liza’s Facebook page in which a taxi driver died and was found with a note in his pocket saying “Bank imeniua.” They got their pound of flesh, I guess.
So, it is no surprise that we recently managed, after 16 years and three failed attempts, to regulate bank interest rates by law using the Banking (Amendment) Act, 2015. We have known this Act since it was known as the Donde Bill, named for its proposer, former Gem MP Joe Donde. Donde rightly felt that borrowing was out of the reach of many Kenyans, with interest rates in 2000 as high as 24%, and he pointed out that Kenyan businesses were dying because of these expensive loans: when they were unable to service the loans, their assets would be auctioned, leaving them unable to operate.
While the law has made some key changes, the most outstanding ones have been with relation to interest rate capping. It caps the maximum rate for a credit facility at no more than 4% of the base rate set and published by the Central Bank, and sets the minimum interest rate one can earn on a deposit held in Kenya to at least 70% of the central bank rate. The current base rate used by the Central Bank is 10.5%, setting the maximum interest rate one can be asked to pay at 14.5%, while the minimum that can be paid on deposits is 7.35%. The Commercial Bank of Africa, though, has decided to use the Kenya Banks Reference Rate (KBRR), which is 8.8%, making their interest rate for loans 12.9% and interest paid on deposits 6.23%.
The Act requires that banks or financial institutions that offer loans to borrowers disclose all charges and terms related to that loan. The people need to understand all the charges and rates that apply before making their decision. It also makes it illegal for persons (which banks and financial institutions are) to enter into agreements to borrow or lend at interest rates in excess of those prescribed by the law. It prescribes to fine banks or institutions that contravene this to a fine of no less than 1 million shillings, a one year jail term (for their employees), or both.
Predictably, many experts have cautioned against efforts to cap interest rates, with reactions ranging from mild cautionary messages to warnings of doom. Before this law, banks would comfortably pay you 2% interest on your deposits, while charging you an upwards of 25% for loans, many times with the discretion to increase your interest rate or payment period (this would always be hidden in obscure terms and conditions). There is a well-worn economic argument about interest rates: they restrict the flow of capital and distort financial markets by going against the theory of free markets.
This, of course, is hinged on multiple assumptions. One, that the market is a free market, which is an economic system in which prices are determined by unrestricted competition between privately owned businesses. In a free market, the prices of goods are dictated by suppliers and consumers, and the credit market is just like any other market. The sellers are the banks and financial institutions, and the buyers are the borrowers. The price is the interest rate. The lower the quantity of credit, the higher the interest rates, and the higher the quantity of credit, the lower the interest rate. But, from what we know, there are no actual free markets globally, and this extends to the credit market.
When it comes to restricting the flow of capital, the argument goes that banks and financial institutions could grow much slower, withdraw from the market altogether, reduce their presence in costly markets (for example rural areas), or just find a way to be less transparent about their total loan costs. Some say that banks will now stop lending to the average Kenyan citizen, and focus on more low risk borrowers, such as government and established corporations whose risk of default is low. But, as we know, lower risk equals lower return (they would have to charge these borrowers less), and the banks are in this to make money, and the money is with the higher risk borrowers, so this argument is moot.
Then, there are those who cite “the environment”, saying hat we recently increased the banking capitalization requirements, and now we are reducing their margins, and this is entirely too much for banks to handle. According to this theory, their fastest route to meeting our capitalization requirements is generating as much profit as they can, and we are making this difficult since moving forward, they will have less retained earnings (which are factored into capitalization). Poor, poor banks.
The thing I find missing from all these theories is regard for the Kenyan, who these banks are actually supposed to serve. The assumption being made here is that these banks were pro-poor to begin with, an argument that cannot be backed up by data. The very existence of chamas and SACCOs provides goes against these assumption. In many chamas, every member contributes monthly and the total kitty is given to one member to pursue a cause of their choice, and it goes round and round, quite possibly ad infinitum, hence why they are also called merry-go-rounds. Some chamas invest this money into projects and assets increase the economic stability of the chama members as opposed to distributing it monthly. SACCOs also provide an alternative to these banking and finance institutions that have a history of not being pro poor. They provide loans at relatively low interest rates (for example 12%) and do not have the same asset requirements as banks.
Before this Act, how many Kenyans are able to get an unsecured loan from the bank anyway? The ones with employment contracts and salaries. These are only 2.3 million Kenyans, out of the over 43 million people in our population. 77.9% of our jobs are in the informal sector, which is actually the largest informal sector in Africa. How many of these people could get a loan from the bank without some kind of security? Close to zero. So why all this hue and cry, yet banks were never serving mwananchi anyway? The banking and finance industry has a history of being hostile to the average Kenyan.
I am optimistic about the situation moving forward. There is still a lot of room for banks to provide services to Kenyans (given that they were serving such a small cross-section before anyway), grow and make money. It just has to be fair now. Banks have been treating all customers equally, offering them the same credit terms, yet there is a stark difference between a person who has taken 10 loans and repaid them all on time, and a first time borrower. We have credit reference bureaus (CRBs) in Kenya that can assign credit scores based on one’s history with debt, and there is no good reason why these credit scores should not be taken into account when offering loans. Failure to do so just smacks of laziness and complacency on the part of the banks.
There is also research that shows that when the legal ceiling is above the market rate of interest, which in Kenya is currently 10.5%, the law has no effect at all. The market forces of supply and demand are not bound by the usury ceiling, and the equilibrium price and quantity of credit are unchanged.
Finally, I think this law is going to lead banks to pick areas of specialty, in which their knowledge of the markets in question is their competitive advantage. There could be banks that are focused on agriculture, on manufacturing, on technology and so on. Then, these banks would become the banks of choice for people in those respective fields, and grow their market share and profits in this way. This way, the banking and finance sector can become a key driver of the growth of Kenyans and their enterprises, as opposed to being a key factor in their impoverishment.
In the aftermath of the 2007 general election that ended in violence and the death of over 1,000 Kenyans, we decided “never again” and set up the National Cohesion and Integration Commission (NCIC), to promote ethnic harmony and investigate complaints of ethnic or racial discrimination or any issue affecting ethnic and racial relations. The National Cohesion and Integration Act (2008), which sets up the commission, in Section 13 criminalizes the use of hate speech and stops the use of threatening, abusive or insulting words or behaviour in any medium if they are intended to spur ethnic hatred.
We would therefore expect, and reasonably so, to have our jails full of offenders convicted for this offense, politician and everyman alike, since the use of hate speech in this country is as much a Kenyan pastime as eating roadside maize or mutura. Except that this isn’t the case. With the exception of a few, such as Alan Wadi, nobody goes to jail for it. Hate speech is notoriously difficult to prove.
What does it mean when Ferdinand Waititu, accomplished thrower of stones, asks Jubilee supporters not to hesitate to “defend themselves” during the CORD anti-IEBC protests? When Kimani Ngunjiri asks Luos to move out of Nakuru? When Moses Kuria suggests that Raila Odinga “must not trouble us forever” and can “eat bullets” (or maize, depending on your interpretation)? When CORD camp members then ask their supporters in turn to “defend themselves” if the three are not apprehended by government?
These politicians are engaging in dog-whistle politics, where they send targeted political messages using coded language that reaches voters sympathetic to them, just like how the special high-pitched whistle used to train dogs is inaudible to humans. The message is subject to interpretation, and relies on the prevailing attitude and way of thought of the target audience. They are demonizing entire groups of people and employing the composition/division fallacy: where one represents the whole, and the whole should suffer for the actions/words of one. They are also using eliminationist rhetoric. In the run up to the Rwandese genocide, for example, radio presenters partial to the elimination of the Tutsi would call for the elimination of “cockroaches”.
An outsider listening to these messages would wonder what/who the cockroaches were, but the intended audience (the Hutu majority) knew all too well what they meant. Similarly, in Kenya, what does ‘defending yourself” against Jubilee supporters or CORD supporters mean when we have a history of ethnic violence that has lead to mass death? What does “eating bullets” (or maize, depending on your interpretation) mean in a country where lives are disposable? Yet when asked to explain their statements, politicians on both sides were quick to say their words had been misinterpreted; taken out of context. If only we knew of their good intentions.
It is easy to fall into thinking that if only we more tightly defined hate speech, or, if only it had more painful legal consequences, then it would stop. Hate speech tends to do two things very well: it emboldens bigots and shows them that they have “strength in numbers”, and, it intimidates the target, most times making them fear for their lives. It is harmful. Hatred, after all, is like a gateway drug. It leads to harassment, discrimination, and many times, violence.
Even with this, the lines are blurry. Does the censorship of hate speech constitute an infringement of the freedom of expression? Is freedom of speech/expression absolute? Who decides what hatred is, exactly, and can we agree on one definition? When you ridicule or offend, is that hatred? Is it harmful? What of when you satirize or criticize? Most reasonable people can tell hate speech from free speech, but as we know, many people are not reasonable. Are we to rely on this test to determine which is which?
The restriction and punishment of hate speech, while ideal, equals fighting the symptoms, but not the disease. It does not tackle the bigotry that causes the hate speech – it merely outlaws it, and gets it out of our sight, without challenging it radically. It just moves below the surface. The only way to fight this disease in the long run, regardless of the perpetrator and his/her motive, is to meet it with sound rebuttals. Not only does this reach the perpetrator, it also reaches his/her potential audience. This is where education and debate come in – these are the most effective tools against hatred.
Schools, the media, public figures, and even members of the public, should rise up against bigotry, and instead teach understanding, a sense of empathy, and encourage solidarity. We must criminalize speech when it incites violence and murder, and punish it heavily, but the way that we will successfully fight cases and causes of hate speech is at the root. Education and debate not only convert those open to reason, but they prevent hatred from occurring in the first place. They also create a critical mass of people interested in living in, and maintaining, a good society. People willing to stand against hatred and all its manifestations. People who have something to live for.
The evolution of man has seen us explore various ways of existing – from hunting and gathering to feudalism, to capitalism as supported by democracy, which is where we currently linger, wondering what comes next, because this no longer seems to be working. According to Thomas Hobbes in Leviathan, we are first and foremost concerned with our survival, thus making the first law of nature self-preservation. The second law is to do unto others as you would have them do unto you.
This forms the basis of the social contract, where he concludes that it is rational for human beings to give up some liberty in order to gain the security of self-preservation. In the modern world, this security is provided by the state. There is a mutual transference implied here: citizens of the state give up some of their natural right and live under a prescribed framework in return for security/self-preservation. The prevailing system for this is the democracy, which is built upon social contract theory (government of the people, by the people, for the people). Democracy can be thought of as freedom institutionalized – defined and enforced.
To this end, we have the arms of government: the legislature to represent the people and make the law, the executive to administer it, and the judiciary to adjudicate and interpret the law. In Kenya, the legislature and executive have long been known to be corrupt, but recently, we have learned that this rot is extensive in the judiciary as well. In January 2016, it was reported:
The Judiciary was yesterday jolted by claims that a senior judge received money to influence a case at the highest court in the land… Justice Tunoi is alleged to have received two million dollars (Sh200 million) in order to influence an election petition against Nairobi Governor Evans Kidero, filed by election challenger Ferdinand Waititu.
In February, additional reports surfaced that stated:
In a tweet on Saturday, senior counsel Ahmednasir Abdullahi called the Supreme Court’s integrity into question, when he claimed that more judges of the highest court in the land may have benefited from the alleged bribe. Abdullahi said via Twitter on Saturday evening that the bribe “is not $2million (Sh200m). It is about $3m (Sh300m)”. He further claimed that Sh200 million was for four judges, whereby two were paid separately.
It is worth noting that Kenya’s Supreme Court consists of a bench of seven: a Chief Justice, a Deputy Chief Justice and five other judges. If Ahmednasir’s claims are true, then the Supreme Court, the greatest court in our state, is deeply tainted by corruption as more than half of its judges have taken bribes.
Just this week, the Deputy Chief Justice, Kalpana Rawal, was named in what is currently the largest leak of confidential documents, the Panama Papers, as a power player dodging tax obligations through the use of tax havens. The papers say:
Rawal and her husband were directors of two companies based in the British Virgin Islands, prior to her joining the nation’s Supreme Court. The family used other offshore companies to buy and sell real estate in London and nearby Surrey. Montague Real Estate SA was used in 2004 to buy a London flat for $1.12 million, which they sold in 2006. Innovate Global Limited was used to buy a house in Surrey for $2.74 million and a London apartment which they bought for $967,000 in 2004 and sold for $1.62 million in 2013. Through Arklyn International Limited, they bought another two London apartments, one bought for $1.66 million in 2005 and sold for $2.23 million in 2011, and the other bought for $1.57 million in 2005 and sold for $2.15 million in 2012.
This comes after our Chief Justice, Willy Mutunga, who is about to retire, characterized Kenya as being a bandit economy. Whoever is fighting this battle against Kenya’s institutions/government is surely winning, because if even the courts, which as recently as 2013 had to decide the outcome of a general election petition can be corrupt, then who in power isn’t? Where can Kenyans turn? Who can be believed? How do we fix our country? Or is David Ndii correct when he says that Kenya is a cruel marriage, and it’s time we talked divorce? Because our state is clearly not delivering on its end of the social contract, and we may just be in it because of duress, or nostalgia.
The state of our judiciary, and indeed our other arms of government, leaves me with many questions. Are the Kenyan people really sovereign? Do we really consent the government of those in power? Is what happens in Kenya majority rule – is this what most people want? Do people who are not part of this majority have protected and guaranteed rights? Is everyone in Kenya entitled to basic human rights? Are we equal before the law, or are some people more equal than others as in Animal Farm? Are our elections free and fair – can our judiciary guarantee this? Are we guaranteed due process when senior-most members of our judiciary are implicated in corruption when they are supposed to be beyond reproach? Are we moving back into the 1990s when we had an almost totalitarian state? If we are unable to answer all these questions in the affirmative, then we have a major problem. Perhaps it’s time we rethought our social contract.
Corruption scandals have become a “fact of life” for many Kenyans, who have come to regard them as just another facet of Kenyan life, alongside high taxes, poor service delivery, our “cult of personality” approach to politics and religion, and the misfortunes occasioned to us by terrorism. These burdens seem to be ours for the long haul, and we seem to have accepted them, albeit half-heartedly. It is tiresome to watch or listen to the news; even being on Twitter at a time when one was not prepared for shock or disappointment can derail one’s entire day. A useful activity (for me) has been to see if these scandals follow any particular pattern. Indeed, they do.
A source leaks to the media/the judiciary/the ombudsman/an external authority some information that is supposed to shake us to the core. For example:
The Judiciary was yesterday jolted by claims that a senior judge received money to influence a case at the highest court in the land… Justice Tunoi is alleged to have received two million dollars (Sh200 million) in order to influence an election petition against Nairobi Governor Evans Kidero, filed by election challenger Ferdinand Waititu. (The Standard)
It is now official, the National Youth Service (NYS) lost Sh791 million in a scandal allegedly involving six companies. Devolution and Planning Cabinet Secretary Anne Waiguru, under whose docket the NYS is placed, said she received a reply letter from the Director of Criminal Investigations attesting to the fraud following submission of her probe request in June. (The Standard)
Based on the report(s) in question, Kenyan people collectively lose their minds, wondering how public servants can be so corrupt/callous/immoral/brazen, and do not hesitate to express these views on any platform that has a text box and a submit/comment/tweet/send/update button. To witness this phenomenon in action, one only needs to visit the comment section of any newspaper website (especially on the articles that cover such scandals) or have a Twitter or Facebook account. If one is more old school, this can be witnessed on Nipate, Wazua or Mashada, as well as call ins to radio and TV station polls.
This is not to say that the outrage is not valid, or important; it is. Only that we are in a state of permanent outrage, because Kenyans offline and online get worn out screaming themselves hoarse about one corruption scandal to the next, leaving us with little energy to pursue matters to completion and hold corrupt officials accountable as they should be.
At this stage, the accused and those partial to him/her come out to vehemently refute the claims, and make accusations of their own. For example:
Embattled Supreme Court Judge Philip Tunoi on Monday sought to clear his name in the wake of allegations that he received a Sh200 million bribe to influence a ruling in an election petition. In an affidavit filed with a special committee of the Judicial Service Commission, Justice Tunoi said the allegations against him were “fiction” and that they were made by “elements within the Judiciary” who did not wish to disclose their identities. (The Nation)
The embattled Devolution and National Planning Cabinet Secretary Anne Waiguru has ruled out stepping aside over the National Youth Service scandal. Speaking on Citizen TV on Tuesday night, Ms Waiguru said people do not step aside because they have been told to step aside on the street. “How can they ask me to step aside when I blew the whistle? I’m the one who called CID,” said the CS, adding that just because an organization has been touched by corruption doesn’t mean that its head must resign. She added that all state organs and private companies have in one way or the other been touched by corruption allegations. (The Nation)
It is important to deflect blame to parties that cannot and must not be named that are invested in tarnishing your name because of your good work. You must offer an alternative explanation that boggles any sane mind, and stand by it without breaking into laughter.
The Pretense of Justice
This is the stage at which organs of the state pretend to care about what happened and attempt to “get to the bottom of the matter.” Tribunals/committees/commissions of inquiry are formed, and investigations proceed promising justice to Kenyans for the vast sums of money that have undoubtedly gone missing. For example:
Ethics and Anti-Corruption Commission (EACC) CEO Mumo Matemu has revealed that investigation on various Anglo-Leasing contracts were still on-going. Matemu said the operationalization of the law on Mutual Legal Assistance (MLA) would assist the commission to broaden its investigations into the matter. He affirmed that whatever else happens the investigations must not be compromised but instead be brought to a logical conclusion leading to prosecution of the perpetrators. “Investigations are at a critical stage and I cannot discuss particulars without giving hints to the people we are investigating because we know they are good at that because we do not want anyone running faster than us.” (The Standard)
Kenya’s anti-graft agency is on the spot over its handling of the ‘chickengate’ scandal given that it is now more than a year since a London court convicted the British directors who paid out bribes codenamed ‘chicken’ totalling Sh53 million to Kenyan electoral and examination officials. The Ethics and Anti-Corruption Commission (EACC) is still asking for more time to carry out investigations, yet the Southwark Crown Court in London has already jailed the Smith & Ouzman (S&O) executives who gave out the hefty bribes. (The Business Daily)
At this point, it is important for the people tasked with solving the issue to blame factors beyond their control and ask for more time, hoping (this has proven to be a very successful strategy) that we forget after some time.
The Getting Away With It
After giving many excuses, the people tasked with “getting to the bottom of the matter” ultimately fail, as we have come to expect. Investigations hit a brick wall, there is lack of cooperation/evidence from key parties, or, the people mentioned in the scandal are acquitted in the courts. For example:
Goldenberg architect Kamlesh Pattni on Friday walked out of Milimani Magistrate court a free man after all criminal charges against him were formally terminated. Criminal charges against Pattni were terminated by the Magistrate court following the judgment by High Court that absolved Mr Pattni and his associated firms from the Goldenberg scandal. The case was struck out by Chief Magistrate Waweru Kiarie following Mr Pattni’s application that the court terminates the case in compliance with High Court orders. (The Business Daily)
The Ethics and Anti-Corruption Commission (EACC) has cleared former Secretary to the Cabinet Francis Kimemia of allegations that he had allocated himself and his close relatives 31 government vehicles. In a statement, EACC Chief Executive Officer Halakhe Waqo said the commission had recommended that the file containing the charges be closed due to lack of evidence. (The Business Daily)
This is when the parties accused of corruption/terrible behaviour utilize the media and anyone who will give them space to clean up their image and attempt to get back into the public’s good graces. Television appearances are made, especially at prime time, for maximum effect. Newspaper opinion articles written by the accused are published, and hashtag battalions are deployed on the internet to achieve maximum rehabilitation. For example:
Deputy President William Ruto on Tuesday evening used a live television show to defend himself and the government from allegations of corruption and insecurity. Appearing on the “Big Question” on Citizen TV, Mr Ruto accused political detractors of being “jealous” of his political success and insisted the Jubilee government was working to deliver on their manifesto. From the chaos at the anti-corruption commission to the saga of Lang’ata Road Primary School and back to the scandal at the Moi Teaching and Referral Hospital, Mr Ruto maintained the same line of innocence, accusing political opponents of dragging his name and that of the Jubilee administration into the scandals. (The Nation)
The Political Career
At this stage, given the millions worth of free coverage the accused has received from traditional and new media, and given the adage “All publicity is good publicity/there is no such thing as bad publicity”, the parties mentioned are ready to vie for political office, and the worst part is that they usually get elected. For example:
Former Devolution Cabinet Secretary Anne Waiguru has said she is yet to make a decision on her gubernatorial bid in 2017. Waiguru said she is consulting with experienced politicians who have approached her, businessmen and religious leaders before she clears the air on her said candidature. Speaking after attending a church service in Komarock, Nairobi Sunday, the former CS said her plan is to interact with the youth and women in their communities in order to know their needs and desires before making an informed decision. “Being a governor is a job for the people. So one cannot just wake up one day and decide to run. With the counsel from politicians and other leaders, I will be able to let the people know of the outcome,” she said. (The Standard)
After this, these corrupt persons acquire even more power and become godfathers and mentors to future thieves, creating pipelines for themselves (and their cronies) to continue draining this country of its wealth in exchange of zero work performed. The fact that corruption in Kenya runs on this predictable script is worrisome, and boring, and puts us at a high risk of state collapse due to indifference in some Kenyans, admiration of the corrupt in others, and exasperation in the majority. As Chief Justice Willy Mutunga said, we are living in a bandit economy, it’s about time we changed that.
On Friday the 30th of October, in the morning, I was driving through the traffic from Syokimau headed towards Mukuru via Mombasa road and turning to join Enterprise Road. On a normal day, it would have taken 15-20 minutes. On this day, however, it took me 45 minutes to arrive at the Enterprise Road junction and even longer to reach Mukuru, where I was to host one of my mentors and a very important guest to my organization. As I approached the General Motors stage, I could see an unusually high number of policemen at the junction (normally, it is one cop on a motorbike) checking cars, insurance stickers and pulling trucks aside. I thought it was a normal operation; certain that all my documents, tires and car were in mint condition, I had no reason to worry.
In the process of stopping cars at a junction at rush hour, traffic was bound to be slow and as a result, the lane joining Enterprise Road was jam packed. Exiting Mombasa Road onto Enterprise Road required changing lanes towards the left until one got space to pass. Little did I know that the operation by the police was a decoy to cause traffic jam and ultimately arrest motorists for “changing lanes and causing obstruction.”
If this sounds weird, it’s because it is; that’s what I was charged with and it messed up my whole day. Had I done the usual (allowed the cop into the car, driven off a few meters, negotiated a bribe and then dropped him off so that he could arrest another motorist and return to base) this would not have been the case.
Instead, I questioned the rationale for my arrest, offered to drive back and re-enact the scenario to be corrected lest I was the one who didn’t go to a proper driving school, asked for a summons to appear in court, and then asked for the option of bail. All were denied. Instead, the cop insisted and opened the door without permission and rode in my car.
On my ride with the sergeant, I tried to reason with him. The more I showed him that there were better ways of being a good cop who maintained a good relationship with the community, the more he got annoyed. He said “Unajifanya mjuaji? You will not even get the cash bail, it is not your right. I can decide whether to give it or not give it.” That’s how my fate was sealed. Two other cars that had been instructed to go to Industrial Area police station along with mine never reached the station. I wonder what happened to them.
I arrived at the booking desk and was made aware that there was still the option of “kuongea na ofisa mzuri”, meaning that I could pay a bribe before my name was written in the Occurrence Book (OB). I was not in the mood for this; my day had already been ruined and I wanted to test the system and see what happens when one goes all the way to the court. While locked in a holding cell, I reflected and came to the conclusion that our justice system is so complicated that it propagates corruption, and that even the strong (who would normally say no to corruption) are tempted to bribe multiple times.
While in the holding cell, I overheard several conversations with the boss. Some policemen would come to argue on someone’s behalf, the boss would receive strange phone calls, and one by one, people were released and I was left with only three other offenders.
I was arrested at 8.04 am and was in a holding cell until after 10.00 am waiting for the pick-up’s capacity to be reached before we could be taken to court. I was the first person to be locked up, and 10 other people joined me in the cell, but by the time we were reaching the Milimani Law courts, we were only three. One person (a Ugandan truck driver) was released enroute to the court. It was so comical that even the police who were guarding us found it amusing. “How can they release him here? What if someone has a camera and takes a photo or video? Can’t they find even somewhere hidden? It’s even better for them if they reach the court and come back with him if they have been “sorted”, let them not involve us in this and it is them who know what they have received.” The “they” referred to here are the driver and the senior officer who were sitting at the front.
While at the basement of the Milimani Law Courts, I got to experience the court holding cells. Before entering the cells, numbered 1-10, you have to go and relieve yourself, because there is no other opportunity. The toilets are filthy, and the stench hits you immediately you enter the basement.
At the reception area, the policemen there approach different people with the offer to make their charges disappear, or make them not have to stand trial. I was approached by a lady who told me “Your case is simple. Depending on the mood of the magistrate, you could be fined KES 10,000 – 20,000. So why go all the way to the court? You might be held here for up to three hours, then once you get to court, you will waste two more hours. Basically, your day will be gone. I can talk to the lady who brought you in and your file can be withdrawn.”
The two others we were arrested with found their freedom this way, and were escorted from the basement to the outside of the courts without standing trial. What does this tell us? For every Kenyan appearing in court for a traffic offence, it is possible that nine others were arrested but bribed their way out or used people in higher authority to free themselves. On that Friday I was that one.
I hope there are a thousand others who are willing to stand by their principles and say no to corruption. Sadly, I am made to understand that what I suffered is a ritual.
Every day, there are targets for the number of people to be taken to the court no matter what happens. There are those who must bribe for the weekly target to be reached, and there are those who are released without paying a cent because the cop has been called by a friend, a relative or someone from above. The targets for weekends, end month, or when the schools are about to open are much higher than those for normal days, I have learned.
Who do we blame for this? Is this how we want to run our justice system? Is this how we want to run our country? No wonder a government official can openly admit that all three arms of the government are corrupt with almost no consequence. We need to go back the basics. Let us unlearn this culture of corruption. Let us teach our children about corruption and the ills it brings into our society. Let us have courageous people who can say no to corruption.
Dennis Ochieng is a development worker and an Acumen East Africa Fellow, 2015. Follow him on Twitter @OchiengKOpiyo
This essay is taken from Brainstorm’s third e-book, Ha!Kuna Matata: Security in Kenya, which is available for free. DOWNLOAD IT HERE to read more such essays.
I’d never met a murderer before – and it never featured on my to do list.
Pete (not his real name) was a guest at the Kamiti Maximum Security Prison, his home for several years. He was convicted of murdering his wife, and for that he was sentenced to the gallows. His sentence was later commuted to life imprisonment. His call was a surprise. I tried to convince him that he had the wrong number, but he had done his homework. He knew about the DNA laboratory where I worked and the kind of work we did. He had the right number. He told me why he had called – he was mounting an appeal against his conviction and he needed my help.
He was disputing the outcome of the DNA results from the evidence collected in the investigation of his wife’s murder. The evidence linked him to the murder, yet he was categorical that he had nothing to do with it. Being impartial and having no vested interest in the outcome of an investigation is an important skill to learn and use. You need to go against your natural inclination to rush to judgement until you have weighed all the facts and information. I was sympathetic towards Pete, and felt that there had been a miscarriage of justice, given the reputation of the Kenya Police Service in the area of criminal investigation.
On the other hand, it was possible that Pete was after all guilty of killing his wife, and that he knew he could poke holes in the police investigation and was using me as a pawn to get out of his current predicament. Still, I decided to hear Pete out. He invited me to visit him in prison and I agreed, a little too quickly. He sounded calm, decent even, over the phone.
I did not know what to wear on my day out to prison. I hadn’t told anyone I was going because I didn’t want to be talked out of it, so I couldn’t get an opinion on what to wear. I figured pants would be best – it is easier to run away very fast when you are wearing pants (and of course no jeans because, well, in American movies, the prisoners wear denim and you don’t want the guards thinking that you are one as you are trying to leave). A black pantsuit would have to do; I could pass off as a lawyer in one.
In the cab, I willed my heart to keep beating at a steady pace. We got to the entrance and the driver was shooed away, cabs were not allowed on prison grounds. I was required to turn off my cell phone and leave it at the reception. The catcalls began almost immediately I left the reception, “Sister! Rasta!” (I have dreads) and I thought to myself: This is how I’m going to die and no one will even know because I didn’t tell anyone where I was going.
After going through another reception, I got a proper pat down body search, much unlike those benign wand waves you experience at malls. This was a contact sport. I was relieved when she didn’t tell me I had a breast tumour following the groping. Power suits meant nothing in here. I ambled through a dark hallway and there it was, the proverbial light at the end of the tunnel that led me to the room where I would meet Pete. There were four wardens in the room, there to monitor my conversation with Pete, I supposed, and to make sure there was no monkey business. I was okay with that.
Pete walked in. He was towering and dark skinned. He had huge hands, one of which I shook gingerly. His face was surprisingly gentle. Was this the guy who had allegedly snuffed the life out of his wife? He was a model prisoner, rewarded for his good behaviour. He had access to the computers in the wardens’ offices – that was how he had found my number. It was also how he studied. He was studying Law.
Pete spoke of how his previous appeal had been rejected, the grounds for which were not entirely clear to me. He handed me all the documents he had relating to his case, and came back to point about the DNA tests, why he doubted their accuracy, and whether the right interpretation was used to arrive at a conclusion. He was sure that a review of the evidence would exonerate him. My responses to him were cautious and clipped; I knew it would be premature of me to agree with him before I read the case. I was eager to get back to the office and pore over the case.
Pete’s marriage was tumultuous; he drank heavily and beat his wife with equal fervour. He worked as a mechanic, and she as a hairdresser. They had two children. She had walked away from the marriage on several occasions, only to return. This was the anecdotal testimony provided by their neighbours and his wife’s family. He did not dispute this. He admitted that he and his wife had altercations on numerous occasions, but this did not mean that he killed her.
On the night in question, he had been working late and decided to catch a drink in the neighbourhood close to home. His wife worked in the same neighbourhood, so he’d occasionally pick her up and they’d go home together. He didn’t have an alibi on this night though. He drank alone and doesn’t remember if there were any witnesses to corroborate his testimony. Much later, at about 11 pm, he made his way home. He did not find his wife at home, but that wasn’t unusual to him. He slept, only to be awoken by loud banging on his door. His wife’s body had been found in a bush close to home. She had been strangled. It was also possible that she had been raped and killed.
There was no photographic evidence or sketches included in the papers I had, and when I asked Pete about this, he doubted that they existed because previous attempts to get them had availed nothing. Thus, there was no way of reconstructing the scene or the crime itself as it happened. The police talked about the position of the body, and it was ‘close’ to their home, and the bar where Pete had been drinking the night before. There was no disclosure about the general surrounding of the area where the body was found, the time, weather condition – nothing. It was anyone’s guess.
A post mortem was conducted to determine cause of death, which was ruled as asphyxiation. Vaginal swabs were collected to determine if the victim had in fact had been raped, though evidence to corroborate an assault or lack of one was never sought. The vaginal swabs were declared sufficient. The victim’s fingernails were bloody and torn, and it was believed that she fought off her assailant(s), and that her fingernails contained the evidence of that altercation.
Given his history of violence, Pete was naturally the primary suspect in his wife’s death, and he was arrested. He asked to see his wife and pay his respects. This was granted and he was able to see her at the mortuary. That was the last time he saw her. The police questioned Pete and he maintained his innocence. He was held anyway, because he was “assisting” with investigations. I’ve never quite understood why a suspect, if guilty, would want to help the police nail him.
Pete never underwent a physical exam, and he was never asked to submit to one. This was a classic Sherlock Holmes moment that was missed; the police seemed to have no interest in checking whether other evidence could corroborate the fingernail evidence. Pete maintained then, as he does now, that he had no physical injuries on his person that would suggest that he was in a fight. The police had decided that Pete was the culprit though, and that was enough.
Pete never underwent a physical exam, and he was never asked to submit to one. This was a classic Sherlock Holmes moment that was missed; the police seemed to have no interest in checking whether other evidence could corroborate the fingernail evidence. Pete maintained then, as he does now, that he had no physical injuries on his person that would suggest that he was in a fight. The police had decided that Pete was the culprit though, and that was enough.
The defendant had no opportunity to call in his own expert witness who would challenge the DNA results, nor could he have the same samples also analysed in an independent lab. This was where I came in. I told Pete that a reanalysis of the sample would not be possible because after so many years and what was presumed to have been an open and shut case, all physical evidence had been destroyed. Without it, there’s wasn’t much I could do.
Pete’s case reminded me of another high profile case, that of Tom Cholmondeley. This heir of British aristocracy, very rich and fond of shooting, was charged with the murder of an alleged poacher who had trespassed onto his land. This was the second man Tom had been accused of killing (the charges in the first incident were dropped due to lack of evidence). The charge of first degree murder was reduced to the lesser offense of manslaughter. In my opinion, this was partly due to lack of evidence, but mostly due to fear of the backlash that would result if Tom was acquitted in this case too.
I had the opportunity to speak to one of Tom’s lawyers, and he was flabbergasted that this case could even proceed to trial with so little evidence. Another debacle courtesy of team Kenya Police. From what I’ve read, by the time the police arrived at the crime scene (Tom’s expansive ranch), night had already fallen. Where they sighted evidence, they moved it so that they could get a better view of it. Problem. When the lighting was too poor to actually conduct a scene investigation, the police left the scene unsecured, with a promise to return the following day to continue the investigation.
The post mortem analysis carried out on the victim indicated that he had been shot twice, once in the buttocks (non-lethal) and another shot that was fatal. Tom fired the buttock shot and ballistics evidence corroborated this. The other shot was fired by a different gun, and possibly by a different person. The police did not pursue this line of questioning. They relied on the testimony of another witness. Tom and his legal team mounted a spirited defence. In the end though, the court of public opinion found him guilty and the judge sided with the public.
In Kenya, it seems your guilt or innocence is determined by emotions, who you know, and how much money you have. Justice and fairness are foreign concepts in our criminal justice system. The legal burden of proof lies with the defendant. The preponderance of evidence (the much lower standard of proof used in civil cases), seems to trump reasonable doubt in criminal cases, even when the doubt is clear and legitimate.
Edmond Locard theorized that every contact leaves a trace. By this he meant that every physical contact between people or things left something traceable that could confirm that the contact took place. This principle was so convincing that back then, law enforcement adopted it in crime investigation. If this evidence could be located at the time the crime was committed and analysed, then it would provide critical information about the identity of the perpetrator.
Enter forensic science. The determination of criminal culpability was not sorcery, it needed backing that was impartial and testable, and not subject to whims. Scientists were then called upon to help the criminal justice system (police, lawyers, judges and wardens) in ensuring that the right person was held responsible for the commission of a crime by analysing the evidence and testifying to the accuracy of those results.
It is my contention that forensics in all its forms, as judicious as it is, does not solve crime. The successful resolution of a crime is a team effort. Every step from the crime scene to the courtroom needs people at the helm who know what to do. A degraded, improperly labelled, poorly preserved sample will not yield a result simply because the analyst holds a PhD, or because the equipment he uses was manufactured in Europe. Evidence tampering cannot be undone in the laboratory.
Furthermore, though evidence is the linchpin in a criminal investigation, it only serves as an investigative tool. For example, the presence of semen on a woman’s panties is not a conclusion of sexual assault. It is a conclusion of sexual intercourse with a male who is currently unknown. If the victim is going to claim rape, there has to be evidence to support her claim, and this additional evidence has to be sought and its probative value determined by the investigating detective. The detective still has to ask the questions who, when, where and how, and what he gathers from this has to add up with what the evidence shows.
In another example, if analysis of blood stains on your clothes reveals that the blood is human in origin and not from the slaughter of a chicken, as you had earlier claimed, then you are in the awkward position of having to answer how the blood got onto your clothes. If a DNA test goes on to show that the blood is not yours but someone else’s, then your assertion that you cut your finger and wiped your hand on your shirt cannot be sustained. Evidence points you in a certain direction, and someone has to go out, find the perpetrator, arrest him and charge him with something.
This is why I get puzzled when I hear the prosecution ask for more time to carry out investigations to link a suspect to a crime, especially after they have already arrested and detained the suspect. How are they able to charge someone with a crime yet have insufficient evidence to show that this suspect committed said crime? And where exactly do they hope to find this extra evidence? One of the first things you learn in forensics is that evidence is very transient, and thanks to TV shows like CSI, criminals are learning how to conceal or destroy it, so the sooner a crime scene technician can locate the evidence, the higher the chance of successful resolution.
In the courtroom, scientific evidence makes a better witness than most eyewitness accounts. The former doesn’t perjure itself, doesn’t forget crucial facts, is impartial, and in some cases can be retested. For most lay people, the challenge is in understanding the significance of scientific testimony, because it is so heavily laden with jargon. The prosecution will have the expert from their lab who will testify to this and that but because the defence lawyer does not understand what was said, he or she cannot challenge this testimony. Miscarriage of justice occurs, then, if the triers of the fact cannot raise reasonable arguments against the evidence or testimony produced. Again, this is not something that can be fixed by well-equipped forensic labs.
We require the entire criminal justice system working in tandem. Everyone needs to know his or her role and have the necessary deftness to accomplish it. Possible immediate solutions for Kenya include provision of the right resources in the right quantities at the right time to the already existing forensic laboratories. With the right support, these labs can cater to the needs of the 40+ million Kenyans who would seek those services.
If capital investment is too great for the government to shoulder, outsourcing forensic services to accredited labs is also an option. Outsourcing has worked well in other areas like education, infrastructure development, and health care provision, and could possibly work well in this field too.
When I think about Pete and Tom, I fear for myself because as a potential victim, I have no recourse in our current judicial system. I could be a victim of crime and the perpetrator would be let off the hook due to lack of evidence, or may never be identified due to incomplete investigation. I could be a victim of police who could inaccurately implicate me in a crime, and I would be twiddling my thumbs in remand waiting on them to collate sufficient evidence against me.
Collective vigilance remains necessary. Kenyans have only recently begun to enjoy freedoms under the Bill of Rights. Knowing what your rights are is important, because these situations could happen to anyone.
Sophie Mukwana is a forensic scientist. Follow her on Twitter @SophieHMK
This essay is taken from Brainstorm’s third e-book, Ha!Kuna Matata: Security in Kenya, which is available for free. DOWNLOAD IT HERE to read more such essays.
On 22nd December 2014, Nancy Mbindalah wrote that Ishiara Level Four Hospital had been closed due to lack of water, which had been disconnected over an unpaid bill, and asked what the county government was doing about the issue. This was not the first comment she had made on the government. Before this she had said that one could not get a tender or a job in Embu without “compromising Wambora.” She had also said that she was “proud to be a Kenyan from Embu, the land of impeachments, where even an illicit brew called Gathufuria impeaches people to death.” She had once also asked why Wambora was giving all county tenders to one specific woman.
Governor Wambora made a complaint to the Acting County Secretary, who then forwarded it to the police. She was arrested for insulting the governor on Facebook and “peddling some statements which are misleading and inciting.”
Nancy Mbindalah was released after she and her mother, Jane Kiringa, allegedly pleaded with the governor. He forgave them, because he is such a gracious man.
It is becoming fashionable for those in power to have social media users arrested for posts that they claim “cause anxiety” and are a “misuse of licensed telecommunication equipment.” I am able to visualize the glee with which these vague charges are slapped on these people, and the great joy with which they set exorbitant bail and bond amounts for daring to question those in power. This happened to Robert Alai, a social media pest, when he insulted Uhuru Kenyatta on Twitter by telling him to rule maturely, and Abraham Mutai, when he exposed corruption in county governments such as Mandera, as well as in corporations such as the Geothermal Development Company (GDC). They also have the social media accounts of the accused deactivated while they struggle to find a way to make their charges stick.
I find it ironic how thin the skin on Kenyan leaders is. They put us through hell and we are expected to bear it without complaint, but when we voice valid criticisms of their leadership, they are so sensitive and galled that they have to concoct nonsensical charges so as to punish and silence us. When they say that these posts cause anxiety, I wonder, to whom? The general public? No. It must be to the beneficiaries of the status quo, who are still surprised that we dare to assert ourselves, on the internet or anywhere else.
Alfred Keter, the MP for Nandi Hills, was caught on camera at the Gilgil weigh-bridge demanding that the staff manning it (drawn from Kenya National Highways Authority and Kenya Police) release a trailer that had been detained due to lack of authorization to be on the road. He is heard saying that “we are the government” and that “we will reverse the law, we have to sack the people” and since “we are the ones making laws, we break it when we want.” He also claims that the Statehouse Comptroller, who basically speaks on behalf of the president, called to have the truck released. He also goes on to call people “motherfuckers” indiscriminately, and claim that he “fucks innocent, stupid people.”
The contempt he displays seems to be channelled all the way from the Head of State, whom he refers to in his diatribe. Uhuru Kenyatta has displayed his contempt for Kenyans before, and it seems that this gives his underlings the confidence to go around threatening people for doing their jobs. As I write this, Alfred Keter has not been arrested for “causing anxiety”, or anything else for that matter. In fact, he went on TV and refused to apologize for his actions, and claimed that if he were to resign, many Kenyans would die because there would be no other Keter to fight for them, yet about 20 were needed.
It then appears that there are two sets of laws in Kenya, those for the rich and powerful, and those for the rest of us. The Bill of Rights, enshrined in our constitution, gives all Kenyans the freedom of expression, including the freedom to seek, receive or impart information or ideas; it only does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination specified or contemplated in Article 27(4). People like Nancy Mbindalah and Abraham Mutai did not commit any crime according to this, yet they were still arrested and forced to suffer police custody, while people like Alfred Keter openly flout it and continue to walk free.
Keter and his ilk are right to feel anxious. They are right to be afraid. The corrupt political class depends on the ignorance, fear and helplessness of the average Kenyan to remain in power. That is why governor Wambora of Embu “forgave” Nancy after she pleaded. Such pleas help to assuage their fears and remind them they are still in power. We have seen this happen before when Uhuru Kenyatta was heckled, and when Raila Odinga was caned. Social media tools and other forms of communications make this difficult, because now, rather than waste time in our bureaucratic systems trying to get justice, it is possible to share incidents of injustice with Kenyans en masse and let them know what is happening. These tools enable people to become aware of their true power, and assert themselves and demand their rights and freedoms.
Kenyans no longer accept wholly what they read about, hear or see in the media as complete truth. People now question, and are not afraid, and this scares the ruling class. People make active efforts to identify lies and propaganda, making it increasingly difficult to manipulate the perception of the masses. As a result, we can expect that the onslaught by the rich and powerful against the ordinary citizen will become harder, but we must be willing to pay the price and stick the course. We can create the Kenya we want should we do so.
by Asha Jaffar
“I have been living in Kibera for 34 years. I’m now moved to an 8×8 room with my family.”
Victim of the demolition
It has always been happening.
I can’t remember when it started but it’s been going on for very long and I’m tired of it. It gets tiring having your homes destroyed in the name of development. It gets very tiring.
Development, injustice and the courts are the three things here. These are the things Kenya needs to redefine. Or, at least, try to understand.
Let’s start from the beginning.
The beginning, as always, is a question: Why are projects passed through Kibera without ever being for Kibera? The railway, the southern bypass – these passed through us (residents of Kibera). We have received no benefits from these programmes. Our homes have been destroyed. Our roads are still bad. Our schools and hospitals are struggling. This is the development I’m waiting to hear about. Instead they brought more bulldozers.
“The prime duty of the police is to maintain law and order. It’s such a shame when they become an accomplice in protecting goons.”
In 2009, after a few months in government allocated housing near Langata Women’s Prison, many families moved back to Kibera – they could not afford the rent.
On 12th January 2012, under the guise of upgrading slums, many of them were rendered homeless. Despite a court injunction staying the demolitions for another five days, their homes were destroyed.
No one spoke about this.
“I am a firm believer that the National Land Policy and Evictions and Resettlement bill is adopted.”
Still in 2012, more houses were brought down to pave way for the Southern bypass. The bypass would stretch from Mombasa Road, past Ole Sereni Hotel to Langata Road, through the Nairobi National Park and move through Kibera to join the Nairobi – Nakuru highway at Rironi, near Limuru. The government promised to compensate the National Park but has said nothing about the Kibera residents whose houses were demolished.
Who will speak for us?
“Will the government come up with another act like of the national park and compensate the people whose houses have been demolished?
Will the government give the people another land given that it has taken from them what they used to call home?”
I saw it all. On the morning of 8th September 2014, we got a call from one of the women living around the Railway area-42. She told us that houses were being demolished. They did not even give people time to salvage their belongings. Construction company H-Young was contracted by Kenya Railways to demolish houses. This was stopped after residents went to court, buying time until the case is heard on 14th October 2014.
This didn’t stop H-Young as they tried to demolish the houses in August 2014. The community resisted them and they had to leave. In September, hired goons came and demolished the houses. H-Young has not officially accepted that they were behind the recent demolitions, but they have not denied it either. We strongly suspect it was them.
Daniel Nguka, one of the people responsible for the demolition, was arrested after we made a lot of noise on Twitter last week. He was charged with robbery with violence but was later released on bond. Who does Daniel represent? Who is he working for? Why did he take charge in demolishing houses?
“I was battered and harassed. I am pregnant but they did not have any mercy. They stepped on my stomach and currently I don’t know if I might have complications regarding my pregnancy.”
One of the victims
11,000 families are to be moved by Kenya Railways, starting this September, from Kibera and Mukuru. How can Kenya Railways go against a court order? How can they go against the agreements they made with the people living along the railways regarding compensation? More importantly, how can they do all this without consequence?
Petition no. 239-Milimani Court: –
IN COURT ON THE 30TH JULY 2014
BEFORE THE HON. MR. JUSTICE ODUNGA
Upon reading the application presented to this court on 3oth July 2014 by counsel for the petition under Article 23(3) 9C of the constitution of Kenya and rules 23 and 24 of the constitution of Kenya (Protection of Rights and Fundamental Freedoms) High court practice and procedure rules 2013, AND UPON READING the supporting Affidavits of KEPHA ONJOUR sworn on 22nd May 2014 together with annexures thereto AND UPON HEARING counsel for the petitioners counsel for the 2nd respondent and counsel for the 1st respondent.
IT IS THEREFORE ORDERED
THAT mention for further directions and orders on 14th October,2014
THAT in the meantime status quo be maintained.
We took to Twitter to tell our story (under the hashtag #kiberademolitions) because that was the only way we thought the world would listen. It worked. We got our M.P. to call on Kenya Railways and stop the demolitions. After countless tweets and texts, Kilimani police station sent 9 policemen who arrested the people who were demolishing those houses. They were charged then released on bail. We are now trying to get our M.P., Ken Okoth, to table this issue in parliament
“The corporation received a Sh 3.9 billion ($45 million) loan from the World Bank for constructing alternative housing units for affected families.”
Many of the families I spoke to had their names removed from the list of the affected persons and were calling upon the M.P. to ask the World Bank to provide the enumeration list that was done in 2010. They were also asking for a new transparent enumeration process.
The World Bank has rules and regulations on how to deal with people. Every single thing we have seen here breaks those rules. Compensation was agreed upon – it did not happen. Still, the World Bank backs this project.
“It has taken along time for the Kenya Railway Corporation and Pamoja Trust to implement the relocation project of the people living and doing businesses along the railway line in Kibera,the process involved a very high level of consultations with all the stake holders involved.
The new buildings built around Jamhuri to accommodate the replaced individuals better referred to as Project Affected Persons (PAPS) has raised more heat, Kibera residents are feeling short changed since most of what they see are not as per the agreement in the Relocation Action Plan Document (RAP)so they have convened 4 meetings to engage the Pamoja Trust and Kenya Railway demanding for explanation.”
Kenya Railways never attended the aforementioned meeting, or any other for that matter. We have tried to meet with them repeatedly, and they have postponed the meeting for the fourth time now.
This campaign, like the issue, is on-going. We are not done. We are currently fundraising for the ten families affected. We are still looking to meet Kenya Railways. We will still go to court. It’s always been happening.
It needs to stop.
Asha Jaffar is a writer, poet and activist who believes that speaking is the only thing that’s going to help us change the world. Follow her on Twitter @AshaJaffar and follow/support her cause at #kiberademolitions
This past weekend, I was fortunate to attend the second Atieno Project Unconference and learn about how the law affects women, especially bills and acts written with women in mind, such as The Protection against Domestic Violence Bill (2013) and The Reproductive Health Care Bill (2014). The discussion was lively and informative, and there were parts of both proposed pieces of legislation that stood out to me as outlined below.
The Reproductive Health Care Bill (2014)
This Senate Bill is for an Act of parliament to provide for the recognition of reproductive rights, to set the standards of reproductive health, provide for the right to make decisions regarding reproduction free from discrimination, coercion and violence; and for connected purposes. The Bill, should it pass, aims to promote women’s health and safe motherhood, rapidly and substantially reduce maternal and child mortality rate in Kenya, as well as ensure access to quality and comprehensive provision of health care services to women and children.
National and county governments are required to make available contraception and family planning services, including the options available, counselling, information as to the advantages and disadvantages of the various contraceptive options and general education on contraceptives. This is extremely important as Kenya’s population is expanding at an alarming rate and we may not be able to feed ourselves if this continues (we are still unable to feed ourselves now, but this would get worse). 43% of pregnancies in Kenya are unplanned, which makes sense because contraceptives only have a 46% prevalence rate. Unmet need ranges between 26% – 78% in some areas. This contributes to the high population growth rate as well as poverty levels, so once this Act is in place, it should help mitigate this damage.
The Bill also covers gestational surrogacy. It entitles everyone to gestational surrogacy, making such agreements valid if they are in writing and signed by all parties involved, they are entered into in Kenya, and the surrogate is domiciled in Kenya at the time of agreement. If the surrogate mother is married or in a relationship, her partner must consent. This also applies to the partner of the commissioning parent, if any.
The Bill prohibits reward or compensation in cash or in kind for surrogacy, and one must be the mother to at least one child to become a surrogate. The prohibition of commercialization is to protect disadvantaged women from being used in “surrogacy farms” for profit. There was a gap regarding surrogacy in the Kenyan law, as was shown by this case in which the petitioners WKN and CWW, the genetic parents entered into a surrogacy agreement with JLN, the surrogate mother who underwent In-Vitro Fertilization (IVF). After the twins were delivered at MP Shah Hospital, there was a dispute as to whether the birth mother or the genetic mother should be registered in the Notification of Birth issued by the hospital. In the law (The Births and Deaths Registration Act) birth is defined as “the issuing forth of any child from its mother after the expiration of the twenty-eighth week of pregnancy, whether alive or dead”. The hospital therefore needed guidance from the Director of Children Services as to who the birth mother was. The Director decided that since the children were in need of immediate care and protection, and surrogacy agreements were unregulated by law, the best option was to place them under the care of a children’s home and allow the parents to adopt them after they were six months old, which is why the parents and the surrogate rushed to petition against the children being put up for adoption at the Children’s Court. They also sued the hospital at the Human Rights Court for breach of right to privacy, and the Director for illegally taking the children.
A groundbreaking judgment by Justice Majanja was made: Children born of surrogacy agreements are the same as any other children, and they have a right to certainty of their parentage under the “best interest of the child” principle. Thus, they are entitled to the identity of their genetic parents and, in principle, the registration of the genetic parents as opposed to the surrogate mother as a parent must be allowed. The hospital was found not to be at fault, while the director was found to have violated the fundamental rights of the petitioners, especially since there was no dispute between the surrogate and the parents. Had this Act been in existence, this whole case would not have had to happen.
Another great thing about the Bill is that it stipulates that maternal care shall be provided by medical practitioners, clinical officers, nurses and community health workers, as opposed to just doctors. This is important, especially to women in areas that have little to no access to doctors. It is also beneficial when it comes to making the call to terminate a pregnancy, which is permitted when these trained healthcare professionals, after consulting with the pregnant woman, decide that continued pregnancy is a danger to maternal health, or as a result of pregnancy, the life or health of the mother is in danger. Termination is then allowed once the woman consents, or if it is a minor or mentally unstable person, once the parents/guardians consent.
Another area in which the Bill excels is that it provides for the reproductive health of adolescents. This is a big issue in Kenya, given that 103 out of every 1000 pregnancies are attributed to girls aged between 15 – 19 years. Reproductive health services are to be made adolescent friendly, and parental consent is not necessary. This ensures that adolescents will feel freer to seek medical care when pregnant. Children aged between 10 – 19 years old must have counselling and signed consent from their parents to begin contraceptive use. The Reproductive and Child Health Care Board will be tasked with providing reproductive/sexual health education and information to adolescents, facilitate provision of non-judgmental, affordable, comprehensive and confidential reproductive health services, as well as policies to protect them from physical and sexual violence and discrimination. The Bill also provides for a Reproductive and Child Healthcare Tribunal that will hear and determine matters and complaints arising from the breach of this Act.
The Protection against Domestic Violence Bill (2013)
This National Assembly Bill is for an Act of parliament to provide for the protection and relief of victims of domestic violence, to provide for the protection of a spouse and any children or other dependent persons, as well as matters connected to these. Kenya currently has no legislation on domestic violence, an oddity in the global legal scene.
The Bill is very progressive, as it defines clearly relationships and situations under which domestic violence may occur, and strives to protect potential and actual victims. Domestic violence is defined as violence, or threat of violence against a person, or imminent danger to this person by someone with whom they are, or have been in a domestic relationship with. Violence is widely defined, and includes widow cleansing, virginity testing, interference from in-laws, damage to property, stalking, economic abuse, emotional or psychological abuse, and sexual violence within marriage, among others. A single act may amount to abuse, as well as a number of acts that form a pattern of behavior. Domestic relationships include marriage (ongoing or previous), sharing a house, family relationships, engagement (ongoing or previous), co-parenting, as well as close personal relationships. Unfortunately, however, it does not include house helps, as this is an employer-employee relationship.
A protection order is the final order made by the court in a matter concerning domestic violence. It applies to the person for whom it is made and their children. It can remain for up to five years, after which it can be renewed, and breaching it holds a fine of up to Sh. 100,000 or imprisonment. An application for a protection order may be made by the person under the threat of violence, or by a representative, such as one’s employer, relative, fellow employee, neighbor, guardian of a child or a guardian appointed by the court, a religious leader, a medical practitioner, counsellor, police officer, an NGO for victims of domestic violence among others. An interim protection order may also be made on application without notice, outside ordinary court hours if a delay would result in the risk of harm or undue hardship to the applicant or his/her children. Such an order prevents the person against whom it is taken from following, watching, loitering near or preventing access from places, occupying the same land/building as the protected person without express consent or making any other contact unless it is an emergency, relating to custody of a minor or under any special conditions. This will make victims of domestic violence feel physically safer.
The Bill obligates the police officer to whom domestic violence is reported to advise the complainant on all available measures of relief as well as their rights to apply for such relief, which is a good move given the callous manner in which many police handle cases of domestic violence. It also permits the complainant to request an officer of the same gender, as they may be more empathetic, and make the complainant feel at ease. Such a police officer is also permitted, unlike before, to make an arrest and prefer charges without a warrant on suspects of assault. The Inspector General of Police is also tasked with ensuring that police are well-trained on domestic violence matters, that they respond fast and efficiently and without causing fear.
The Bill also protects children from psychological abuse, deeming one an abuser if he/she exposes the child to physical, sexual or psychological abuse of a person with whom he/she is in a domestic relationship with. The person on the receiving end of the abuse will however not be found to be an abuser as well. The Bill recognizes, rightfully so, that children are also victims of domestic violence.
Another triumph is that it mandates the Cabinet Secretary for health, in partnership with county executives, create policy to provide temporary emergency shelters for victims of domestic violence. This policy shall also address public education and awareness, research and development on domestic violence, availability of psychological support and legal aid. Subsequently, any person that believes that domestic violence is being/has been committed may report it, and may not be intimidated for doing so. They may also not face disciplinary action for doing so, unless it is proven that the information is false.
These Bills may be late, but at least they are existent now. Societies usually evolve faster than their structures, and the law has to play catch-up. What we can do now as the Bills are discussed in parliament is share them with our networks so as to educate them on what would change if/when they become Acts of parliament, as well as to help them hold leaders and members of their societies accountable. To follow their progress, please use the Bills tracker tool.