Laws of Kenya – The Law Blog

The Kenyan Election

July 29, 2017Posted in Laws of Kenya, SeriesTagged Kenya, Kenya ElectionsLeave a comment

This is the first of a four part series on Kenya’s national elections. Focusing on key factors such as the electoral process in Kenya and an insight into Kenya’s past elections leading to the 2017 elections.

Introduction

On August 4, 2010, Kenyans compellingly voted to pass a new constitution following decades of clamour for a new constitutional bestowal. Kenya had, three years prior (2007), undergone an odious bout of post-election violence due to alleged election fraud. The crisis that was undoubtedly driven to its extremes by ethnocentrism, left the country reeling in social and economic shock, as it turned Kenya from one of Africa’s most stable and prosperous nations into one of the continent’s most chaotic nations at the time. The dominating factor advancing the passing of a new constitution was arguably the need for Kenyans to have a guarantee of electoral reforms. There was an evident need for a new constitutional, legal and administrative framework given the prevailing political and electoral environment in the country.

The Electoral System in Kenya

Elections in Kenya occur within the framework of a multi-party democracy and a presidential system. The current Kenyan constitution was introduced in 2010 and the first elections were held under it in 2013. The elections are organized by the Independent Electoral Boundaries Commission (IEBC).

The national elections in Kenya include presidential elections and parliamentary elections.

The 2010 constitution provides for a two round system for presidential elections, the president having been elected on a first-past-the-post basis. In order to be victorious in the first round, a candidate is required to receive at least 50% plus one vote nationally, as well as 25% of the votes in at least 24 counties. The constitution confers jurisdiction on the Supreme Court over presidential election petitions.

The country has 47 counties, each duly represented in Parliament. The parliament in Kenya is divided into The National Assembly and the senate. The National Assembly has 350 members. 290 of these are elected at constituency level. Due to a long standing trend in poor representation of women in parliament, the Constitution provides that 47 seats in the National Assembly are to be reserved for women based on the number of counties; all elected by first-past-the-post voting. The remaining 13 seats include those of 12 members, nominated based on political parties; and a speaker.

The Senate has 68 seats. 47 of these seats are elected from single member constituencies based on the number of counties. The remaining number of the seats are acquired by appointment; 16 of these women based on party’s seat numbers, two persons representing the Kenyan youth, two persons representing disabled persons in Kenya and one elected speaker.

The promulgation of the new Constitution saw to the formation of the Independent Electoral Boundaries Commission (IEBC) as a regulatory agency responsible for conducting and/or supervising any referenda and elections to any elective body established by the Constitution. Its functions include the continuous registration of voters, management of the voter’s register, voter education, monitoring of stakeholders’ compliance with electoral legislation and the use of appropriate technology and approaches in the performance of its function. The IEBC, therefore, holds the most important role with regards to Kenyan elections. Through the proper carrying out of its functions, it plays a critical role in averting pre and post-election conflict.

ABOUT THE AUTHOR

TRACY ODHIAMBO

Tracy Odhiambo is a lawyer with an LL.B (Hons) From Strathmore University Law School. She is a budding freelance writer from Nairobi, Kenya. Her interests include legal writing, African literature and English fiction.

Human Trafficking in Kenya

July 21, 2017July 21, 2017Posted in Laws of KenyaTagged Human Trafficking, KenyaLeave a comment

Human trafficking has been defined as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.^[1]

Human trafficking is squarely located within the larger context of workers’ rights, immigrant rights, and human rights.^[2] According to the UNICEF Innocenti Insight, Kenya is a primary source of origin, transit, and destination for human trafficking.^[3] This may be indicative of a general lack of concern by the government to deal with the atrocity. This atrocity does not take place in social and political isolation. The government is tasked with the responsibility to ensure that this atrocity is nipped in the bud. When the social and political circumstances allow for and support the forceful theft of human labour, there is a need for deconstruction: a deconstruction of the laws that create this environment or an improvement of the same. In Kenya, there exist rampant and unfortunately severely overlooked situations; where minors from poverty stricken families are taken across county and country borders to work as domestic workers and do other exploitative odd jobs for little pay.^[4]

Furthermore, there have also been cases where Kenyan citizens have been abducted and taken to foreign countries^[5] and have faced torture in foreign countries. In the case of Beatrice Akomo Ongito v Republic^[6] a Kenyan defendant was charged with transnational commercial sexual exploitation. The complainant was said to have been transported to Tanzania and locked in a deserted house where she was beaten and sexually abused.^[7] Other reported cases include cases of trafficking for sexual exploitation.^[8] These cases mostly involve adults taking advantage of minors. An example of this is F.M.N v Republic.^[9] In this case, the defendant was charged with trafficking for sexual exploitation contrary to section 18(a) of the Sexual Offences Act.^[10]

Though Kenya is said to have shown marked improvement in its anti-trafficking efforts, there has been no indication by way of evidence of such effort. In fact, cases dealing with this heinous atrocity have shown a lack of coordination and oversight. This is arguably promotive of a conducive environment for trafficking.

The main law that currently deals with human trafficking is the Counter Trafficking in Persons Act that came into force in 2012. Prior to this, in order to address claims of perpetration of crimes of this nature, other legislations were relied upon. Sections of the Penal Code,^[11] Sexual Offences Act^[12] and Children´s Act^[13] partially addressed the issue. The Counter Trafficking in Persons Act, 2010, In Article 3(5) accords hefty penalties on persons found guilty of human trafficking. The perpetrator is liable to imprisonment for a term not less than 30years or to a fine of not less than Ksh.30 million or both and upon a subsequent conviction, to imprisonment for life. The Sexual Offenses Act also amerces harsh penalties with regards to trafficking in persons. However, despite there being such harsh penalties upon prosecution and conviction, the legislations, seem to have a few loopholes that allow for trafficking in persons. An example is in chapter 3 of the Constitution which provides that a child of under eight years and of an unknown nationality found in Kenyan is to be considered a citizen. This has arguably provided a leeway for children being smuggled into the country at this young age.^[14]

With regard to trafficking in persons, Kenya needs to implement fully the current legislations put in place to deal with this issue. The legislations also need to properly address the areas of prevention, protection and prosecution. While the current legislations are indicative of efforts to prevent human trafficking, an issue arises in implementation. There is laxity among stakeholders responsible for implementing the legislations and prosecuting the crimes.

[1] United Nations, Protocol to Prevent, Suppress and Punish Trafficking in persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, Art. III (2000).

[2] Wolken C, ‘Feminist Legal Theory And Human Trafficking In The United States: Towards A New Framework’ 409.

[3] UNICEF, Innocenti Insight; Trafficking in Human Beings, especially Women and Children in Africa, Pg. 10-12.

[4]Kerry J, ‘Trafficking in Persons Report’, June 2014.

[5] Mwangi G, The Nation, Kenya, Aug. 29, 2004, www.religionnewsblog.com/8585/deya-babies-are-victims-of-trafficking.

[6] Beatrice Akomo Ongito v Republic (Criminal Appeal No.274 Of 2012)

[7] Beatrice Akomo Ongito v Republic [2013] eKLR.

[8]Zachary Ochieng, News Africa, August 2002, www.newsfromafrica.org/newsfromafrica/articles/art_854.html .

[9] F.M.N v Republic (Criminal appeal case 321 of 2007) eKLR.

[10] F.M.N v Republic [2009] eKLR.

[11] Chapter XXV, Penal Code 81 of 1948, Cap 63.

[12] Sexual Offences Act, 2006, Cap 62 a.

[13] The Children´s Act of 2001, Cap 141.

[14] M Kenan and O Nick, ‘Child traffickers using church’, 1 November 2011 http://www.standardmedia.co.ke/

ABOUT THE AUTHOR

TRACY ODHIAMBO

The Contempt of Court Act, 2016 – A brief analysis

March 16, 2017March 12, 2017Posted in Contempt of Court, Laws of KenyaTagged Contempt of Court, KenyaLeave a comment

This article seeks to look at the law on contempt of court in Kenya by looking at the provisions in The Contempt of Court Act, No. 46 of 2016. The article will look at the provisions on this doctrine, cases that have been dealt with and ends with a conclusion on whether it has been accomplished its objectives or not.

The recent jailing of the officials of the Kenya Medical Practitioners and Dentists Union (KMPDU) for contempt of court led to an uproar from the public who viewed the court’s position to jail them as being wrong, arguing that many high ranking public officials had never been punished for this offence even when it was clear to the public that they were acting in contempt of court. To the public, this doctrine only applies against a few individuals and as such, it’s a tool to silence the masses. After spending a night in jail, the doctors were set free, and the court of appeal later on overturned the Industrial and Labor Court’s decision.

The doctrine was applied in Republic v Gachoka[1]where Mr. Gachoka was sentenced to the maximum six months imprisonment without the option of a fine and his publication fined 1 Million shillings. This suit arose out of an article published by Mr. Gachoka in The Post on Sunday alleging that the then Chief Justice Zaccheus Chesoni had received a bribe so that the courts would rule in favour of one of the persons implicated in the Goldenberg Scandal. Tony Gachoka was once again found guilty of contempt in 2015 alongside TV personality Jeff Koinange for commenting on a matter that was before court. The two were fined a whooping two million shillings which Mr. Gachoka was unable to pay and spent some time in jail. The High Court however, later suspended the case against the two.[2]

Black’s Law Dictionary defines it as the act of demeaning the court, preventing justice administration, or disobeying a sentence of the court, punishable by payment of fines or imprisonment. The Contempt of Court Act defines this doctrine under Section 4 to include the following:

a) civil contempt which means willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court;
b) Criminal contempt which means the publication, whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters or the doing of any other act which –
i) Scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court;
ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or
iii) Obstructs or tends to obstruct the administration of justice.
In any case not relating to civil or criminalproceedings as contemplated under subsection (1), an actthat is willfully committed to interfere, obstruct or interruptthe due process of the administration of justice in relationto any court, or to lower the authority of a court, or toscandalize a judge, judicial officer in relation to anyproceedings before the court, on any other mannerconstitutes contempt of court.

Contempt of Court proceedings are meant to uphold the dignity and authority of the court, ensure compliance with the directions of court, ensure the observance and respect of due process of law, preserve an effective and impartial system of justice and to maintain public confidence in the administration of justice as administered by court.[3] The punishment provided for by the Act is a fine not exceeding two hundred thousand shillings or imprisonment to a term not exceeding six months or to both.[4] Where a company is involved in contempt of court proceedings, the people in charge of the running of the company at the time of the proceedings shall be committed to civil jail.[5]

Some of the high ranking officials against whom no arrests were made or fines paid even after being found guilty of contempt of court include; Interior Cabinet Secretary Joseph Nkaissery who was found guilty of contempt by a Mombasa court for disobeying a court order stopping the destruction of a ship which was to be used as exhibit in a drugs-related case.[6] In December 2016, Interior Principal Secretary was likewise found guilty of contempt but nothing has been done ever since.

These are just a few examples that could be highlighted, and the trend is neither championing impartiality in the justice system nor maintaining public confidence in the administration of justice by the courts in the country. If anything, it is giving the public more reason to the public to lose faith in the judiciary and term it a tool for the have it in the country. The courts decision in the KMPDU case for instancedid not preserve the dignity of the court because the honorable judge had an option of fining the officials but went ahead to issue a one month jail term.Judicial officers and government officials ought to rise to the occasion and ensure that they uphold the rule of law and that the law is applied equally to everyone so as to win public confidence in the judiciary.

[1] Criminal Application No. Nai 4 of 1999

[2] Article 19, Kenya: Contempt of Court Proceedings Abused available at <https://eajournalistdefencenetwork.org/News-and-Highlights/Kenya-contempt-of-court-proceedings-abused.html> accessed on 27/2/2017 at 10:30PM

[3] Contempt of Court Act, Section 3

[4] Ibid, at Section 28(1)

[5] Ibid, Section 29(1)

[6] Ogemba, P. Senior Government Officials not jailed for Contempt of Court, Standard Digital available at <https://www.standardmedia.co.ke/mobile/article/2001229300/senior-government-officials-not-jailed-for-contempt-of-court> accessed on 28/2/2017 at 9:37 AM

ABOUT THE AUTHOR

DEBORAH MULEMIAH

Deborah Mulemiah is currently a postgraduate diploma in Law at the Kenya School of Law. Passionate about law and literature.