The world marked this year's Cancer day on 4th February 2015, and Kenya took part by raising awareness throughout the country on preventive measures as well as treatment of diagnosed cases. EACLJ's mission is to defend life, freedom and liberty for all. It is therefore important to highlight the rising incidences of cancer in Kenya as well as the mechanisms adopted by the government to combat the deadly disease, as it is ranked third among the main causes of death in Kenya. In Kenya, cancer treatment is an expensive affair with many poor patients deeming the treatment services to be beyond their reach, causing them to eventually succumb to the disease. The equipment in both public and private hospitals is limited, noting that some of the facilities are out-dated. As it is right now, the many Kenyans seeking cancer treatment have to wait for about two years before being served due to the depressing shortage of critical equipment. There is therefore need for the government of Kenya, through its Health Ministry to strengthen the fight against cancer. Article 43 of the Kenyan Constitution guarantees the right to the highest attainable standard of health. It is therefore the government's duty to ensure that the cancer treatment facilities are upgraded and that such are made accessible and attainable by every Kenyan. The enactment of the Cancer Prevention Act 2012 has brought optimism to cancer patients with the expectation that the access to medical facilities will now be attainable. It is also expected to help in tackling various challenges that have plagued the country's efforts against cancer such as; shortage of experts and physical infrastructure, poor records on the disease at the two hospitals with registries - Kenyatta National Hospital and the Moi Teaching and referral Hospital. The new law introduces various new strategies including teaching school children on cancer preventive measures, and penalties against care providers who do not submit data on the disease. The Act also provides for the establishment of a National Cancer Institute aimed at fighting cancer. This is important as research is advancing and giving more information on causes of such diseases which needs to be communicated for prevention purposes. For instance, findings released recently show that women need to be cautious with the birth control pills they are using as some are exposing them to health risks. This is information that must be communicated to citizens and also the government has the responsibility of ensuring that medicine imported into the country is safe for consumption. It is the hope of all Kenyan citizens that the government will provide a timely reprieve to cancer patients by facilitating a quicker decentralization of healthcare facilities in the 47 counties, so as to reach even the most marginalized patients and promote partnership in the public and private sectors in coming up with policies, advocacy and awareness program that will fight cancer.
ICC's Prosecutor Fatou Bensouda today withdrew the charges Kenya's President Uhuru Kenyatta was facing at the International Criminal Court. The Trial Chamber Judges had directed the Prosecution to file a notice within one week to indicate its decision on whether they will withdraw the charges against the President or proceed with the trial, on the basis that the evidence had improved to a degree justifying this. Ms Bensouda said the following in her application to the court:
In light of the Trial Chamber's 3 December 2014 "Decision on Prosecution's application for further adjournment", the Prosecution withdraws the charges against Mr Kenyatta.
The evidence has not improved to such an extent that Mr Kenyatta's alleged criminal responsibility can be proven beyond reasonable doubt. For this reason, and in light of the Trial Chamber's rejection of the Prosecution's request for an adjournment until the Government of Kenya complies with its co-operation obligations under the Rome Statute, the Prosecution withdraws its charges.
As noted by the Trial Chamber, this withdrawal is without prejudice to the possibility of bringing new charges against Mr Kenyatta "at a later date, based on the same or similar factual circumstances, should [the Prosecution] obtain sufficient evidence to support such a course of action".
Ms Bensouda called it a "dark day for international criminal justice" and laid blame squarely on the Government of Kenya for what she called a "failure to cooperate fully and effectively with (her) investigations in (the) case". The Prosecutor was keen to stress that the withdrawal of charges did not mean an acquittal and that the case could be re opened or brought in a different form should new evidence be discovered. The President released a statement saying that he was 'excited' by the Prosecution's decision. The defence lawyers have denied Ms Bensouda's claims stating that the government has complied sufficiently with the Prosecution's request and that Uhuru is entitled to a no guilty verdict. President Kenyatta's journey to the ICC can be traced back to the 2008 post-election violence when 1,133 people were killed and more than 600,000 displaced. He was facing charges of being "criminally responsible" as an indirect co-perpetrator for crimes against humanity.
Violence has largely been ignored as a public health issue and this is due to the lack of a clear definition of the problem. Notions of what is acceptable and unacceptable in terms of behavior and what constitutes harm, are culturally influenced and constantly under review as values and social norms evolve. The wide variety of moral codes throughout the world makes the topic of violence one of the most challenging and sensitive to address in a global forum. But the need to do so is urgent. An effort must be made to reach consensus and set universal standards of behavior through the elaboration of human rights in order to protect human life and dignity in our fast-changing world. There are many possible ways to define violence, depending on who is defining it and for what purpose. The World Health Organization defines violence as the "intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community that either results in or has a high likelihood of resulting in injury, death, psychological harm, mal-development or deprivation." The definition encompasses interpersonal violence as well as suicidal behavior and armed conflict. It also covers a wide range of acts, going beyond physical acts to include threats and intimidation. Besides death and injury, the definition also includes the myriad and often less obvious consequences of violent behavior, such as psychological harm, deprivation and mal-development that compromise the well-being of individuals, families and communities. In Kenya there is the Protection against Domestic Violence Bill 2013 which was enacted 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, and to provide for matters connected therewith or incidental thereto. There has been a lack of agreement among researchers on what domestic violence means or what it should consist of and this has resulted in many different interpretations of what it is and what it constitutes. Intimate partner violence according to Krug et al refer to; "Any behavior within an intimate relationship that causes physical, psychological, economic or sexual harm" Such behaviors include acts of physical aggression – such as slapping, hitting, kicking and beating. They also include psychological abuse which includes acts such as intimidation, constant belittling and humiliating. Sexual violence includes among others acts of forced intercourse and other forms of sexual coercion. It has also been said to include various controlling behaviors – such as isolating a person from their family and friends, monitoring their movements, and restricting their access to information or assistance' Saltzman citing Saltzman and Fanslow et al (1999) in a bid to come up with a uniform definition breaks domestic violence into two concepts: intimate partner to include current or former spouses, same or opposite-sex partners regardless of whether they are living together, boyfriends/girlfriends, and dating partners. She defines violence "as physical violence, sexual violence, threat of physical or sexual violence, and psychological/emotional abuse that occurs in the context of prior physical or sexual violence or threats of such violence". Saltzman and Krug's definition, although encompassing most of the types of and nature of intimate partner violence; do not mention economic abuse which in certain circumstances is identified as a form of abuse women experience A simple definition can refer to domestic violence as marital violence which includes; "any form of coercion, power and control, physical, economic, sexual, verbal, or mental abuse perpetrated on a woman by her spouse or extended kin arising from the social relations that are created within the context of marriage." Other people can refer to domestic violence as violence against wives, as wife abuse, and as wife beating. These definitions could be taken to relate domestic violence to the context of the home where most violence is perpetrated, and the perception that the victims are typically married women or women living with partners in the same place. This however may not necessarily be the case given that domestic violence affects girls and women who are unmarried and who do not stay with their partners either. In case you are in a situation and not sure if it could be described as violence, we would like to help you find out by filling a questionnaire on this issue which we hope will help raise awareness on domestic violence.
The African Union (AU), formerly the Organization of African Union (OAU) was formed on the 9th September 1999 when the Heads of State and Government of the Organization of African Unity issued a Declaration (the Sirte Declaration) calling for the establishment of an African Union. This was with a view, inter alia, to accelerate the process of integration in the Continent to enable it play its rightful role in the global economy while addressing multifaceted social, economic and political problems compounded as they are by certain negative aspects of globalisation. One other main aim of the formation of the Organisation of African Unity was also motivated by the need to rid Africa of the remaining vestiges of colonization and apartheid. The Organization of African Union was aimed at sending a message to the world, particularly to former colonizers, that Africans were taking charge of not only their countries but also their Continent. African countries aimed at coordinating and intensifying cooperation for development; to safeguard the sovereignty and territorial integrity of Member States and to promote International cooperation within the framework of the United Nations. The OAU initiatives paved the way for the birth of AU. In July 1999, the Assembly decided to convene an extraordinary session to expedite the process of economic and political integration in the Continent. Hence the birth of the African Union which was created to promote African unity and boost the social, economic and political attributes of the African States. Kenya being a member of the African Union, Africa's interest in the ongoing cases at the ICC is rather obvious considering the Continent's need to try and safeguard the sovereignty of member states. The Kenyan cases in the ICC have raised a lot of public interest not only within Kenya but also regionally within Africa and in the International Community. They are critical because they involve the President and Deputy President. There have been several legal, social, political and economic issues that have risen from this case, which is the first of its kind against serving heads of state. Several questions have been raised and in particular there has been fear of a power vacuum that could be created if both heads of state were to be in trial at the same time. The AU leaders, including South Africa's Jacob Zuma, warned that Kenya would collapse if its President and Deputy President were to be out of the country at the same time for the full duration of their trials at The Hague. This issue has however been averted. A motion was tabled in Parliament to have Kenya as a State to withdraw from the Rome Statute; which is a treaty that established the International Criminal Court (ICC). This was and still is an extremely contentious issue as it is contrary to Articles 2(5) and 2(6) of the Constitution which declared or established Kenya as a Monist state. In regards to withdrawing Kenya from the Rome statute, some critics have termed the move as a dangerous one which would set bad precedent for other states and particularly other African states. The Motion was however passed by the Kenyan Parliament. The African Union, in its bid to fight for the member states, recently petitioned the International Criminal Court to drop the cases against President Kenyatta and his Deputy Ruto citing among other things discrimination from the International Criminal Court on Africans countries. The allegations were followed with a threat claiming that if nothing was done about the said cases then there would be a massive pull out from the Rome Statute by all African States. It is important to note that African countries account for 34 of the 122 parties that have ratified the Rome Statute which founded the ICC and therefore their withdrawal is of a big significance to the institution.
Ethiopian Prime Minister Hailemariam Desalegn has reportedly stated that the ICC is targeting the African race and that instead of addressing impunity universally, the court is in 'race hunting'. He further stated that 99 per cent of those indicted by the ICC are from Africa, which left the body in no doubt that the International court's prosecutors were intentionally targeting Africans. This has been the main allegation that has been raised concerning the trials at the I.C.C as the African Union seeks to have the cases tried locally. Several political leaders of Africa earlier met in Addis Ababa to discuss whether African states should withdraw en masse from the International Criminal Court because of the indictment of Kenyan President Uhuru Kenyatta and Vice President William Ruto. This meeting was an extra-ordinary session of the African Union (AU) organized to deliberate on International Jurisdiction, Justice and the International Criminal Court (ICC). At issue is whether the ICC has discriminated against Africans and whether the case of the killings of over 1,100 persons in 2008 and the displacement of over half a million should be a matter of International criminal law. While the African Union is not condemning the International Criminal Court, the key issue is the approach which the ICC is taking. The African Union wants the ICC to take a different approach even in their quest to ensure that the victims of the post election violence receive justice at the end of the day. The resolution by the African Union has however not been supported by all particularly Amnesty International who take the approach that the victims are the most important and therefore their needs should come first. Needless to say a resolution that seeks to have senior government officials not tried before the International Criminal Court during their time in office will pave way for impunity and allow government officials to commit wrongs without having to be accountable. Except for Botswana, all Presidents, Prime Ministers and representatives of government at the meeting appended their signature to the resolution that would be communicated to the United Nations Security Council and the ICC. The resolution read: "No charges shall be commenced or continued before an International court or tribunal against a serving President or senior member of a government in power." This, they said, was drawn from both local and International laws which give immunity to sitting Presidents and high- level government officials and provides that they can only be taken before a court of law once out of power. This stems from the International doctrine of personal immunity which is immunity granted to an individual from trial due to the nature of office that they hold. Commonly referred to as immunity rationae personae. It stems from Customary International Law One however wonders where it all began. Who referred this case to the International Criminal Court in the first place? How did the said case end up in the International Criminal Court Premises? It is clear that Africans have played a huge role in maintaining and ensuring the continuity of the International Criminal Court. How then have Africans turned their back on something they maintained? Is this just another case of the dog chasing his own tail?
Surprising enough, The referral of the 2007-2008 Kenyan post-election violence case to the ICC came, not from imperialists, but from the Panel of Eminent African Personalities established by the African Union — with Kofi Annan as chair and Benjamin Mkapa, former president of Tanzania and Graca Machel, former South African first lady as members. It was the Panel of Eminent African Personalities that was formally mandated by the AU on 29 January, 2008 to mediate between President Kibaki's Party of National Unity (PNU) and Mr. Odinga's Orange Democratic Movement (ODM); the panel was charged with finding a peaceful solution to the crisis. One important outcome of the Panel's work was the referral of the cases of those behind the violence to the ICC. The western states particularly Britain and the United States at this time attempted to prevent the case form going to The Hague for the reason of ensuring that relations between Western States and Kenya were maintained and not interfered with, especially in regard to international Business. It is also important to note that the United States has not signed the Rome Statute. From this short excerpt it is clear to see the merry-go- round involved. The case against the two Kenya superiors has caused an outburst from the African States and the International Community has not been left behind. It is important to ensure co-operation between International and regional bodies to avoid such tussles. One question however remains, what is the situation locally? Parliament already approved a motion to withdraw Kenya from the Rome Statute, despite the controversy that surrounded motion. The procedure to withdraw from the statute has been exclusively set out in Article 127 of the Rome statute. However, it is important to note that legally, withdrawing from the Rome Statute will have no effect on the trials of Mr. Ruto or Mr. Kenyatta. The process of withdrawing requires the State to give a 12 months' notice by depositing the withdrawal documents with the Secretary General of the United Nations. This withdrawal does not affect the cases that have already commenced in a State that is withdrawing. It has been stated on several occasions that Kenya's attempt to withdraw from the Rome statute can be rightly assumed to be a purely political move. There is no need to attempt to sugar coat the situation with legal jargon. Kenya being the first state to attempt to withdraw from the Rome statute means that it will be the state that will set precedent for all other states especially African states. It would be hard to determine whether or not other African states will follow suit. Every African state has a different relationship with the Western world; be it socially and especially economically. The AU officials are in talks with the UN Security Council as earlier planned and although no decisions on the deferral request of the Kenyan cases will be made at that point of discussion, the Security Council is expected to meet again in November to discuss whether to use its power to grant a one-year postponement of the trials of President Uhuru Kenyatta and his deputy. The bill seeking to withdraw Kenya from the Rome statute is currently being drafted at the Attorney General's office and East Africa Centre for Law and Justice we will be watching keenly to see what the outcome of the said situation will be.
The events of 21st September 2013, have left indelible memories to Kenya as a Country and further raised more cognizance on the dire need of combating terrorism. On this day, Westgate mall in Nairobi was invaded by unidentified gunmen and were engaged in mass shooting which according to reports, left about 67 people dead over 150 injured; including civilians, the police and military. More than thirty persons are reported to be missing. The assault lasted for four days. During the attack, the Al-Shabaab claimed responsibility and acknowledged that it was retaliating for the Kenyan military's involvement in the Somalia peace keeping efforts. Reports further state that Kenya had been earlier warned of an eminent attack and to this effect Parliament has launched an investigation in order to ascertain the lapses in the Country's security system, which may have led to the attack. This is not the first time that Kenya is experiencing terror Attacks that have claimed the lives of many and threatened to devastate the Country's economy. On 8th August 1998, the United States Embassy in Nairobi was bombed leaving approximately 212 people dead and 4,000 injured. The bombing had been planned by al Qaeda to mark the eighth anniversary of US forces' arrival in Saudi Arabia. The main target was Americans but most of the casualties were Kenyans. In 2002 November 28th, an attempted missile attack on an Israeli owned plane failed in Mombasa. However, a car carrying explosives smashed through a barrier of Paradise Hotel in the coastal town as it received 60 Israeli tourists checking in. Ten Kenyans died in the attack and three Israelis, two of them children. The attack was blamed on militant groups linked to an organization called Al Muhajiroun. On March 10th 2012, a blast at a bus terminal left nine dead and sixty others injured. In another incident, at least 30 people were injured in an explosion that rocked an exhibition stall next to Mt Kenya University Campus along Nairobi's Moi Avenue Street on 28th May 2012. On Sunday, 1st of July 2012, twin grenade attacks occurred simultaneously at the Garissa Catholic and AIC churches leaving sixteen dead, amongst them two police officers manning the church, and sixty six others injured. The attackers also used two firearms to open fire at the congregation. These heinous acts of terrorism have not only affected Kenyans by robbing them of their loved ones and leaving them traumatized, but also the economy of the country has been greatly affected. For instance the tourism sector has suffered a major blow as some members of the International community have issued travel advisories to their citizens who may have been planning to come to Kenya. The missile attempt in Mombasa in 2002 resulted in the cancellation of all flights from Israel to Kenya indefinitely. This was also a blow to tourism in Kenya. The attacks against Kenya may lower the chances of having investors coming in as the security of the country is also a factor that is highly considered in the business world. In Kenya, Terrorism is covered by the Prevention of Terrorism Act (Act 30 of 2012) which was promulgated on 24th October, 2012. It creates over 30 offences and provides for special powers of arrest, procedures to gather information and even limits certain rights when conducting investigations. It also provides compensation for terrorist victims, while the people involved in terrorist activities risk 30 years in jail if they commit a terrorism act or a life sentence if the act leads to death of another person and their properties seized. Those that assist terrorists risk 20 years in jail. Stiff penalties for joining a terrorist group are also provided. The Compensation of Victims of Terrorism Fund will be funded from disposal of property seized from terrorists as well as fines imposed on those convicted. It also contains provisions that require phone companies to intercept communications in the course of investigations. Banks and financial institutions will also report to the Central Bank, giving details of transactions involving accounts and properties owned by groups or suspects flagged by the government after every three months. Surveillance with the intention of carrying out terror attacks is deemed as criminal under the Bill. For instance, those caught filming buildings and other likely terrorist targets face a maximum of 20 years behind bars. More stringent legal measures need to be imposed in the country in order to compliment the above law and end the loopholes that will subject Kenya to any future terror attacks.
Kenya and the ICC: To Remain or to Withdraw, that is the Question.
The last two weeks have been very eventful in the Kenyan experience. Today, the 10th of September 2013, our Deputy President William Ruto stands trial for crimes against humanity allegations stemming from the 2007 - 2008 post election violence. As we counted down to the trial in the last 14 days, the Kenyan national assembly voted to begin the process of withdrawal of Kenya from the Rome Statute, thereby effectively refusing to subject our citizens in future to the ICC process.
Initially, there had been an earlier push for such a withdrawal when the trials commenced two years ago. When it became clear that the cases would proceed whether or not Kenya withdrew from the Rome statute, the clamour died down. What is different this time round, is that William Ruto is now Kenya's deputy president. His co-accused Uhuru Kenyatta, is now Commander in Chief of the armed forces of Kenya. They are now no longer any two accused persons, they are a constitutionally recognised symbol of national unity. Indeed our national pledge calls for Kenyans to pledge their loyalty to the flag and the office of the president in one breath. They therefore feel emboldened to lead the country and to resist external pressure. They have promised to co-operate with the court, but on the sidelines, they are flexing their muscle to remind the ICC that they too have options available to them to assist their cause.
Secondly, the trial initially started with six Kenyans on trial. Three of them have since been acquitted, basically due to sufficient evidence to proceed. There is the matter of the witnesses who keep pulling out intermittently, though there are many who still hang on and fully intend to testify. Many citizens who originally supported the ICC process are now not too convinced of the case against the President, his deputy and Joshua Sang. Furthermore, the ICC received 20 names and chose to prosecute only six. Questions of who the other 14 are also rife, since it is speculated that former president Kibaki and former prime minister Raila Odinga should also be in the Hague facing trial.
Thirdly, the whole process has been highly politicised. During the recent March 2013 elections, it was made to become an "Us vs Them" contest. The allegation was basically that the then prime minister Raila Odinga orchestrated the ICC process as a tool to eliminate Uhuru and Ruto from the race to ensure his own quest for statehouse succeeded. This argument found resonance with many from the Kikuyu and Kalenjin tribes where the president and his deputy belong, and the now infamous "tyranny of numbers" was born. These are two very large tribes, and they managed to come together to ensure victory for their candidates. The tyranny of numbers therefore was that according to the statistics, of the registered voters belonging to the two tribes combined against all the other kenyan tribes was large enough that there was a clear margin of victory. Therefore all they needed to win the election, according to pundits, was to work together and consolidate this block. They did this, and they actually won the election in the first round.
This leads directly to my fourth point, that the sheer majority in the houses of parliament as well as many county assemblies means that any vote for or against any motion, usually goes the government way. They have the numbers to force any motion through, regardless of what the opposition says. During the vote to leave the ICC, opposition members walked out, since they saw the futility of their objection. It would have been better for them to have stayed and be counted against the motion, but they chose to debate, then walk out.
This background is to set the stage for where we are right now. From now until the end of Ruto's and Sang's trial at the Hague, plenty of information will become public domain. Witnesses will reveal that which we were not previously privy to. Their credibility will be tested and shaken. Old wounds will be reopened, and the nation will collectively shudder when some scenes are recollected. To the victims of the post election violence, this will be a decisive moment, when they will either get justice, or will finally resign themselves to the fact that is it over for them. If the ICC process pushes through, the chances of a local process are nil.
There are many who feel, that the ICC process has overshadowed the need to try local perpetrators. The man who actually chased his neighbour through the maize fields with a machete. Somehow, the ICC process stalled investigations into the post election violence, and many remain in the communities where they caused untold mayhem. This means that even for the victims for whom this is being done, the process may not yield justice. Many lost their land, and the perpetrators even became squatters on the land. Many remain uncompensated for loss of loved ones and property worth millions. There also remain very strong undercurrents of hatred and suspicion, even if those two tribes that fought in 2007/2008 are now governing the nation together.
The ICC process in Kenya was the genius of Judge Waki's commission investigating the post election violence. His options were simple, kenya had one year to try the perpetrators of the post election violence, or at least start a local tribunal to try those who planned it all. Failure to which, there was a famous white envelope, which contained 20 names of those perceived to be most culpable for the violence. Of the 20 names, the then prosecutor Ocampo picked six names to commence trial. That process in itself was politicised, since many saw that the ones sent to the Hague went on behalf of the real protagonists of the day, PNUs Mwai Kibaki was on trial via Francis Muthaura, Hussein Ali and Uhuru Kenyatta, while Raila Odinga was on trial via William Ruto, Henry Koskei and Joshua Sang. The argument was that the peace was so fragile that to try the head of state and the prime minister would dis-stabilise the country. Fast forward to 2013, and those who allegedly took the place of those in power then are themselves now in power. The current prosecutor Fatou Bensouda decided to forge ahead regardless. While many were ready to sacrifice them three years ago, now that they are in charge of the country, many are ready to defend them as a sign of defending our sovereignty as a State.
The factors above and many more minor factors make the case for Kenya to be at this crossroad. The ICC trial chamber also released the timetable for teh hearings and it became clear that at some point in November both the president and his deputy were going to be in the Hague busy with the hearings. Whilst it is not mandatory for both to be present for the Nation to operate, speculation was rife that this was an attempt to have both of them at the Hague to detain them until the end of the trial. This would leave a leadership vacuum that could become the basis of a fresh clamour for power. The ICC has since capitulated and has started the process of revising this to ensure that only either one is at the Hague at a time.
Looking at it from a wider perspective, Kenya's withdrawal from the ICC is a well calculated move. It may seem like a local process, but many suspect that the shuttle diplomacy done by the deputy president across many african states was actually setting the stage for this very moment. The argument is simple. So far, majority of the people who find themselves at the Hague seem to be from the continent, and yet major world powers have refused to subject themselves to the Rome statute, and so seem to get away with rape, murder and manslaughter. The argument is therefore, Kenya has a reason to do it, so let Kenya start the pull out. Others can join as a show of solidarity, but in actual effect, it is similar to playing the get out of jail free card in a monopoly game. They (the african nations) will remove the future possibility of being in Kenya's predicament. The rationale is simple, Africa is the new frontier emerging in trade, industry, economics and therefore, time has come for Africa to stand and defend herself without being beholden to other external powers.
This domino effect withdrawal, is meant not only to get future African leaders the assurance that the Hague is no longer a threat, it will also serve to weaken the status of the Court. This is because, Kenya is now looking East for her future relationships. The difficulty of the West to work with an ICC indictee means that the donors being courted are now in Asia. The Syrian regime has been able to stand this long because of support from China and Russia who would veto any attempt by the Security Council of the United Nations to intervene militarily in Syria. Africa is therefore very aware that it is important to have friends in the West, but the friends of the East stick better during trying times. This has become incentive to become daring enough to risk the fall out of withdrawal from the Rome statute with the West with the promise of stronger relationships in the East.
The next three months are crucial for Kenya not only for the victims of the violence, but also in view of the fact that her choices now could well set the pace for the rest of Africa and how we deal with those perceived to have impunity and a general disregard for their citizens' rights in their quest for power.
21st September 2013 was a dark day for Kenya, when the very popular Westgate Mall was attacked by Al Shabaab militants. The reason given for this is that Kenya's involvement in fighting the insurgents in Somalia had disrupted their activities, and so the attack was reprisal to force Kenya to withdraw her troops from Somali soil.
The aftermath of the attack is coming in ebbs and flows. There has been a dogged determination by Kenyans to refuse to be divided along religious lines. This was exhibited during the Interdenominational National Prayer Day that came at the conclusion of the official mourning period. President Uhuru Kenyatta, Deputy President William Ruto as well as leaders from the Christian, Hindu and Muslim faiths were in attendance. Read More here...
During the prayers, EACLJ's Chairman Bishop Mark Kariuki led the Nation in praying for our children, for their protection during these perilous times. The President reiterated that Kenya will not ignore her international obligations to fight terror. He admitted there were glaring errors revealed in our responses, and promised to set up a commission of inquiry to determine what we should do different next time. Bishop Mark had earlier led a team of Christian church leaders to the site of the attack where they held public prayers, as well as issued a statement to condemn the attack. They also called for the unity of Kenyans to prove to the Al-Shabaab terrorists that they shall not be cowed or intimidated. Read More Here...
In a similar show of unity, religious leaders at the coastal city of Mombasa also condemned the attacks. A cross section of Muslim, Hindu and Christian clerics came together in a press conference to express solidarity with the families of the victims and to call for swift action against those found complicit in helping the terrorists succeed in the attack. Read More Here...
Criticism has been leveled against the Intelligence Unit, the Police, the Internal Security apparatus, the Immigration department as well as the laxity of the citizens in reporting suspicious activity. http://www.bbc.co.uk/news/world-africa-24347548 Members of the National Assembly probing the said departments have also called for the UNHCR to relocate all Somali Refugees to other nations and forthwith close all their camps in Kenya. According to the UNHCR, Kenya is host to over 500,000 Somali refugees, though there are many who come into the country without registering with the UNHCR. The number of Somali Nationals residing in Kenya could well be close to a million. Kenya has been host to the Somali refugees of a continuous basis for the last three decades. Read More Here...
The crisis has come to an end, the security forces are currently combing the building to find any more bodies that may be trapped there. The building is said to be boobie trapped with improvised devices and so anti-bomb experts are also trying to detonate them. It is believed that many of the final hostages were actually killed when it was obvious that there was no way out for them. The Kenya Defense Forces ask Kenyans to brace themselves that most of the missing could have been killed or have died from unattended wounds and others have been killed in the last hours of the siege.
Kenyans are celebrating the prevailing peace in the land after a highly anticipated General Election. However, with a new Government in place, the question as to how this will impact the current Kenyan cases at the International Criminal Court (ICC) cannot fail to be raised. This is bearing the fact that two of the suspects are now Kenya's top government principles i.e. the President Uhuru Kenyatta and Deputy President William Ruto. The ICC expects the government to fully assist the court where required so as not to prejudice the prosecution's case against President Uhuru Kenyatta, deputy President William Ruto and former radio presenter Joshua arap Sang. Failure to this may compel the prosecution to explore other options, such as referring the matter to the Chamber for direction. This referral of the matter to the Chamber for direction may occasion the enforcement of more stringent measures upon the accused. There has been a massive withdrawal of witnesses from the ICC cases, and as a result the prosecution has cited harassment, intimidation and bribery as the key factors. In another turn of events, Judge Christine Van den Wyngaert withdrew from the case facing President Uhuru Kenyatta and his deputy William Ruto, citing the main reason as negligence and inconclusive investigations by the prosecution. The office of the prosecutor asserts that the government's cooperation with regard to availing the required information and with respect to witness protection will ensure an expeditious court process and determination of the case. The ends of justice will equally be served. Recently, the Attorney General Githu Muigai paid a visit to The Hague. This, according to him, was intended to foster cooperation between the parties involved in the ongoing process at the ICC. The visit, which coincided with the Deputy President's status conference, follows a stalemate between the Attorney General and the office of the ICC Prosecutor, where the latter claimed that witnesses were facing harassment. The AG has dismissed Ms Bensouda's claims that the government has refused to furnish her office with documents relating to the cases. He, on the contrary stated that his office had cooperated by providing the ICC with the documents required and ensured that the witnesses were accorded due protection. During the status conference, the Deputy President was questioned about his request not to attend his trial at the ICC on the grounds that he had a constitutional duty to serve the people of Kenya as Deputy President. The Court sought to know whether he vied for the DP position fully aware of the charges he was facing at the ICC. So far, the trial has witnessed different phases which have seen the dropping of charges against former head of public service and Cabinet secretary Francis Muthaura, following withdrawal of the charges against him by the prosecutor on the basis that her key witnesses had lied and received bribes. The Uhuru-Ruto Alliance was seen as a move that was intended to foster unity and reconciliation especially between the Kalenjin and Kikuyu communities, which were at loggerheads in the contested 2007 Elections, as well as aliensate support towards the ICC. At the moment Diplomats from Kenya and other African countries are attending African Union Summit "50-years on" in Ethiopia in a bid to map out the next fifty years of political and economic integration. The ICC issue may come up as one of the items on the agenda, even as the body has been critical of The Hague based court, stating that it unfairly targets Africans in its prosecutions. The union has also been trying to emerge as a force for stability in this continent which is unfortunately, often troubled by violence, conflicts and coups. However, with the current government, a conflict of interest is definitely bound to arise when it comes to the question of loyalties. As a participant in global relations, the Government has to adhere to the International expectations as stipulated under the Rome Statute and cooperate with the ICC. On the other hand the Government, despite being constituted of the ICC suspects has to work towards protecting its interests. Whether or not the process will yield fruit is now the preserve of the key actors in the process, including the international community. As a signatory to the Rome Statute, Kenya is bound to cooperate with the international demands of the court process; therefore Kenyans should remain peaceful as the court process progresses so as to ensure that a just determination is yielded.
6 years on and it is sad to see the state of most Internally Displaced Persons (IDPs). It is in fact distressing that up until now we still have IDPs in our country. Needless to say, confusion has wrecked the process of compensating these people, only making the situation worse. While some are enjoying the reap of the promises made in regard to resettling them, some individuals are still hoping to see the light in regards to receiving compensation. Recently President Uhuru Kenyatta and his Deputy William Ruto launched a 3.2 billion cash payment programme for the Internally Displaced Persons. The launch, which kicked off the closure of all IDP camps in the country, would ensure that each household receive 400,000 shillings. However, although the Devolution Cabinet Secretary Ms. Ann Waiguru stated that her ministry had finalized measures to have all the camps closed by 20th September, a group of displaced persons is said to be suing top government officials, as they are challenging the IDPs' compensation list. Prior to the filing of this case there had been several complaints in regards to names missing in the compensation list in areas such as Ruring'u in Nyeri County and Gucha area. So obviously the issue is not new. In dealing with an issue as grave as this, it is imperative to note that organizational skills are essential to ensure that every man gets his pay. The state in which such individuals have been left is in serious breach of socio-economic rights that have been enforced in the Constitution. Many are homeless and lacking essential amenities such as clean and safe, water. The highest attainable standard of health, education and housing which are included in the catalogue of socio-economic rights in Article 43 of the Constitution are also missing. By sweeping these issues under the carpet, the government could only be making the situation worse as many of these displaced persons have to find alternative ways to fend for themselves and their families. The application of the distraught persons was however dismissed for having too many individuals listed as the respondent to the suit and they were given two weeks to adjust their application and seek legal aid. It is clear that the said persons represented themselves and are out to seek justice no matter the case. Similarly another family is suing the Attorney General, seeking compensation from the government after acquiring a loss amounting to 25 million. Even after giving notice to the Attorney General 2 months earlier, they have not received any response. It is clear from the 3.2 billion cash payment that the government is working but the question is how hard is it working? One does not get rid of a problem by only solving part of it, but by but by solving the whole problem. This is an issue that is way overdue and a permanent solution needs to be implemented. The issue of politicizing the resettlement process has so far left the IDPs suffering more than can be imagined. It is a call to the government of Kenya to set its priorities right and ensure that its citizens are well taken care of and have access to all the basic necessities.
Kenyans expect the upcoming historical elections to be free and very fair; especially now that the Independent Electoral and Boundaries Commission (IEBC) has been formed to ensure the process runs well.
However the issue of the date when Kenyans will go to the polls still remains controversial, as suggestions to amend the constitution have been presented in Parliament.
The matter had earlier been forwarded to Kenya's newly constituted Supreme Court declined to give the directions on a date for next year's elections and instead forwarded it to the Constitutional and Human Rights Division of the High Court.
According to Article 163 (3) (a) of the constitution the Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President. Under Article 140 a person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. The election date issue is not such a matter and therefore does not trigger the Supreme Court's exclusive original jurisdiction.
Though the Supreme Court can make rules for the exercise of its jurisdiction under Article 163 (8), it appears the constitution intends that the Supreme Court be an appellate court or court of last resort. Article 163 (3) (b) states that the Supreme Court has appellate jurisdiction i.e. the power to review and change decisions from the Court of Appeal and any other court or tribunal. The Supreme Court can hear appeals in any case involving the interpretation or application of the Constitution. The Supreme Court can also hear appeals cases in which it, or the Court of Appeal, certifies is matter of general public importance, Article 163 (4).
As far as advisory opinions go, constitutionally the Supreme Court may give an advisory opinion at the request of the government or state organ with respect to any matter concerning county governments.
The case now rests with High Court which has jurisdiction to hear any question respecting the interpretation of the Constitution according to Article 165 (3) (d) of the constitution. Meanwhile, the speaker Kenneth Marende granted the justice minister Mutula Kilonzo the green light to formally introduce a Bill that seeks to amend the constitution and change the general elections' date.
According to the chairman of the recently formed IEBC Mr. Ahmed Isaack Hassan, having the elections conducted in August 2012 may not be possible as it is not practical. He cited numerous tasks that the IEBC Act says his commission must perform to prepare for the elections, and insisted that there is insufficient time to have the elections so soon.
Some of the tasks expected to be done are; the commission must study the report by the Independent Electoral Boundaries and Review Commission (IEBRC) and submit the findings to Parliament within four months, which is subject to revision in case Kenyans reject it. The commission must also hire and train staff, declare boundaries for constituencies and wards, conduct voter education and registration and procure computers before the elections are conducted.
Hassan stated, "The choice of date is not for political reasons but for practicality, because the new Constitution demands that all these tasks to be performed." Although this is contrary to what the chairman of Constitutional Implementation Commission (CIC) Charles Nyachae has been advocating for by challenging the IEBC over the exact date of elections, the ICJ programme Officer Elsy Saina stated that "As much as the law is there, the Supreme Court should consider the overriding interests of the public."
