The last month saw the Judicial Service Commission (JSC) become a beehive of activities as they engaged heavyweight legal minds including judges and legal scholars in interviews that would see the reconstruction of the Supreme Court of Kenya. This was due to vacancies that had been occasioned by the retirement of the CJ, Dr Willy Mutunga. Additionally, his deputy Kalpana Rawal and the third in seniority, judge Philip Tunoi had been technically removed from office following a refusal by the Supreme Court majority sitting to adjudicate on their retirement age cases, thus rendering the Court of Appeal's decision final. The Court of Appeal had ruled that the retirement age of Judges is at 70 years. The JSC is currently working on legislation to be discussed in Parliament setting the age of retirement of the Deputy Chief Justice as that of the Chief Justice.
The constitution requires the Supreme Court judges to be seven. However, it is properly constituted for the purposes of its proceedings if it is composed of five judges. The previous Supreme Court, led by Chief Justice Willy Mutunga was accused of never producing any worthwhile jurisprudence that could set a precedent for lower courts. In fact the previous supreme court was dogged with scandal from the get go- from the 2013 presidential petition to the various corruption scandals involving some of the judges therein. As earlier stated the survivors of that currently sitting bench include Justices, Mohahmed Ibrahim, Ojwang, Dr. Smokin Wanjala and Lady Njoki Ndung'u. The appointments come at a time when the judiciary has received a backlash and lost public confidence due to corruption, a plague that is widely entrenched in many State institutions.
Justice Maraga having stood out as the best candidate for Chief Justice based on his integrity, experience in both the legal private practice and on the bench, good temperament, his independence and ability to co-ordinate Judiciary affairs. Justice Maraga also emphasized his Christian ethics as a guiding beacon in his life. Justice Maraga is 64 years old. The Chief Justice position has an age limit of 70, meaning he will only serve for six years before the constitutional term of ten years expires. The commission will have to interview applicants for his replacement when this time comes.
Other appointees include Justice Philomena Mwilu, who has had experience in various capacities for over 32 years. She had served as a High Court Judge and Court of appeal judge prior to her nomination as Deputy Chief Justice.
The Maraga led bench has faced sharp criticisms on failing to meet the two-thirds gender principle in the constitution of the Supreme Court,A Constitutional requirement for all public appointments. This arose with the outcome of Justice Isaac Lenaola as the best candidate and his eventual swearing in as a Supreme Court judge. Justice Lenaola beat a pool of senior judges from the Court of Appeal who had applied for the position to replace retired judge Philip Tunoi. In settling for Lenaola, JSC conformed to the principle of regional balance required in appointments of the Supreme Court Judges. The Justice during interview for the post characterised himself as "liberal and pragmatic" and said he wants to be analytical about issues. Indeed this can be seen during his helm as the lead of the Constitutional; Human Rights division of the High Court.
There is a lot of optimism in the currently constituted Supreme Court. Its apex leaders have now pledged to set systems in place that will end corruption and work towards regaining public interest in the Judiciary. We look forward to jurisprudence that will emerge therefrom.
The Care and Protection of Child Bill, 2016, sponsored by Nominated Senator Elizabeth Ongoro is likely to be presented before the Senate when it resumes next week. The Bill is designed to keep pregnant girls in school by providing a legal framework to facilitate a smooth transition for the parent student. It provides that a learner should not be denied her right to education for being expectant. It also advocates that the girl receives adequate support; from the school, family and government to be able to pursue her dreams. Compulsory pregnancy tests are forbidden and if the girl child has a test done and the results turn out to be positive, then the teachers are barred from revealing the results to anyone else, including a student's parents or guardians. The bill states that "A school principal who defies the proposed law will risk being jailed for three years or a fine of Sh. 3 million, or both."
The Bill also seeks to protect school girls who get pregnant against discrimination and stigmatization. It provides that a learner should not be denied her right to education for being expectant, but instead should be given adequate support to pursue her dreams. "Every girl shall have the right to remain in school and receive the necessary support to continue their education and participate fully during their pregnancy or as a parent student", states the bill. The school administrators will be required to ensure that such girls study in a conducive environment without harassment. Mrs. Ongoro said the Bill was necessary in order to prevent stigmatization in schools owing to pregnancy. She went on to add that most pregnant students were victims of discrimination by fellow students and teachers, a situation she argues has led many to drop out of school. The Bill makes sure that the learner will not be forced out of school unless they request to leave of their own will.
Furthermore, once the girl gives birth they will be given a year off to look after the baby but must be readmitted once the period lapses. At home, their parents or guardians will be expected to provide maximum care to ensure that they recuperate faster in order to return to class. The county government will be required to build and maintain care centers that will take care of the school girl's children.
The Bill comes in the wake of increased teenage pregnancies in the country. A recent case is of 22 girls, who were found to be pregnant in a secondary school in Uasin Gishu County. The Principal of the school was quoted saying that the blame lay on the fact that the girls were day scholars. She proposed a solution of building a dormitory to house all students "...so that they don't fall prey to such incidents".
Whereas the sheltering of teenage girls could help in reducing the number of pregnancies, unfortunately, there are more factors at play that will need consideration. According to a recent report by the Kenyan Government and the United Nations Population Fund, 13,000 girls leave school early every year due to pregnancy. The report states that low income, low levels of education and little or no access to contraception and reproductive health are the major factors behind high teenage pregnancy rates in Kenya.
The Reproductive Health Care Bill 2014 proposed access to comprehensive sexual education and provision of contraception to teens from ages 10 to 17 years. It was intended to reduce the high number of teenage pregnancies and engagement in risky sexual behaviors. However, it has been met by opposition from the Kenya Union of Post Primary Education Teachers (KUPPET), The Kenya National Parents and Teachers Association and the Cabinet Secretary of Education, who all claimed the Bill is 'immoral'.
Kenya's high teenage pregnancy rate has resulted in thousands of girls abandoning their education early, stunting the development of nearly half the nation. The high number of cases has been blamed on a multitude of causes, such as early marriage, broken families, rape, peer pressure, inadequate sex education and alcohol and substance abuse.
Kenyan teenage girls are set to remain, for the foreseeable future, as vulnerable as ever, with the media and fast internet providing ready stimulating information for the teenagers. Parents are advised to take time with their children to talk about sex instead of assuming that they are taught about sex and abstinence in school.
Many cases of teenage pregnancies go unreported. Often enough, this because the girl was raped by someone she knows, such as a male relative, teacher, pastor or neighbor. Some of the cases are not reported, however, because of stigma and fear, while others never see the corridors of justice after the administration and police are bribed. This is a very serious consideration that should be included in the Bill.
Other factors, such as, some communities see rape and teenage pregnancy as normal and thus the perpetrator goes unpunished and is merely told to pay a dowry and marry the victim, so that she becomes his wife. This is mostly seen in the pastoral communities where the girls' families value cattle more than looking for justice and early marriage is a common practice.
For the Bill to succeed, there should wide consultation with all stakeholders who include parents, school heads, teachers, student councils, medical practitioners, psychologists and religious leaders. The contributions of all these parties will help to safe guard parental authority, stop the introduction of "adolescent friendly clinics" and Comprehensive Sexual Education, help deal with the issues of stigma and discrimination and also to come up with a noble document that will safe guard the vulnerable teenage girls from early pregnancies.
FIGHTING CORRUPTION: CLEANSING THE SYSTEM:
Corruption has emerged as one of the biggest vices ailing Kenya. The nation stands at position 139 out of 168 countries according to the 2015 Global Corruption Perception Index (CPI) released by Transparency International. This situation prompted the Kenya Private Sector Alliance (KEPSA) to develop and present to the President a legislation called "Bribery Bill" back in November 2015. A Cabinet Meeting chaired by President Uhuru Kenyatta on the 22nd of March 2016 later approved and adopted the Bill. The anti graft law will now be presented in the National Assembly for debate.
The proposed Bribery Bill aims to criminalize both the offering and receiving of bribes. This will be true for any individual, whether local or foreign. All facets of bribery have been covered including making promises to give something in exchange for an advantage. The Bill also makes it a requirement for private entities to have in place procedures that will help in the prevention of bribery. The Cabinet explained that this requirement was added in because the private sector was essentially the "supply side" of the bribery equation, so it would make sense to stop bribery at its source.
Any private firm, whether local or foreign that conducts business or charity work in the country will be subject to the new law. It will be compulsory for the firms to "have in place procedures appropriate to their size and nature of operations for the prevention of bribery". This is meant to force firms to implement internal rules that will stop workers from giving or receiving bribes. Any firm that fails to put up these measures will have their directors, senior officers or any other individual acting in these capacities liable to abetting corruption and as such will face jail terms of up to 12 months.
Any individual or firm suspected to have benefited from a bribe would have their properties seized. Also, according to the new law, any company or person found to be giving or receiving bribes would be barred from ever transacting business with the government. This would be an especially apt addition considering the recent major corruption scandal involving the National Youth Service where several private companies were awarded approximately 760 million shillings through irregularly acquired contracts.
Successful implementation of this Bill would be considered a major success in the fight against corruption. Corruption has consistently undermined the country's prosperity, security and future. Setting up and implementing strong policies is crucial to having an efficient anti corruption system. This is a war that has to be won if Kenya is to succeed, so it is great to see that there is support for the bill, and the will to ensure that it works.
The High Court of Kenya ruled on monday that several sections of the Security Laws (amendment) Act 2014 were unconstitutional. President Uhuru Kenyatta had in December signed into law the controversial security bill after it had been passed in a very chaotic Session of Parliament. The opposition and other civil bodies later opposed it in Court. The Law had amended 22 other Acts of Parliament in matters to do with National Security.
The five Judge bench nullified 8 clauses of the Act in their verdict. They overturned the restrictions on media, as these were found to violate the freedom of expression and the freedom of the media as guaranteed in the Constitution. The Bill had prohibited the media from reporting on matters that were still under investigation and from reporting on Security Operations.
The Court also nullified the Sections touching on the right to a fair hearing. These would have given the Prosecutor power to withhold evidence and the power to frustrate someone trying to be released on bail. In addition, the Court found that the Section which limited the number of asylum seekers and refugees allowed to stay in Kenya had violated the 1951 UN Convention in the Status of Refugees, which happens to be part of the laws of Kenya, as stipulated in the Constitution.
The Government, responding through the Spokesman Manoah Esipisu, argues that the new law was in response to the "shifting security requirements needed to keep Kenya safe". The Spokesman said that Government believes that the clauses nullified are necessary in its efforts to keep Kenya safe and that it is currently studying the implication of the ruling to determine whether they will appeal the decision or return the clauses to parliament with the necessary modifications. He was keen to stress that the Government respects the decision of the Court. He noted that this was a large bill and that the Court had in fact left about 90% of it intact.
Organizations in the Civil Society and the Opposition had contested 20 clauses in the Act which they felt were unconstitutional. CORD and KNHCR wanted the Court to throw out the law on the basis that it was unconstitutional and untenable given the nature of debate that passed it and that neither the Public nor the Senate had any input on it.
CORD leader and former Prime Minister Raila Odinga in a statement congratulated the Court for the ruling. He said that even though the Court didn't agree with them on every matter they presented, he was happy that the Court stood up for the Constitution. Mr Odinga said that in doing so, the Court had asserted its Jurisdiction to supervise, ensuring that the Constitution was being adhered to.
Click to Read and Download Ruling the High Court Ruling:
Click to Read and Download the Security Laws (Amendment) Act: