Which way with the minimum and maximum land holding acreages bill 2015?

 

It is worth noting that the mandate of control of public land is constitutionally vested in the National Land Commission (NLC), with the exception of incidental matters of historical injustices, with private land. Thus, the determination of minimum and maximum acreage, individual or private persons be they natural or juridical may own, is a preserve of the Chief Land Registrar. Historically, control of land was compartmentalized into agricultural land control and land planning control. There was no specific control of the amount of acreage that a private person was entitled to or in the derivative disentitled to. This is purely a new phenomenon that has been necessitated by the phenomena of massive and threatening landlessness, which in the wider sense is also a historical injustice in nature.

In order to further control irresponsible usage and ownership of land, the Government was further empowered through Land Acquisition Act (Cap 295). This among other reasons would be done in the interest of public benefit. Public participation has thus remained a prerequisite in matters related to land ownership though in form, except for this time the law should entrench it in substance to accord to Article 1 of the Constitution of Kenya 2010, all sovereign power belongs to the people, and must be exercised in their name and interest. This legislation is thus intent on curing the mischief occasioned by landlessness and secondly, the senseless holding of productive land without putting it to use while multitudes are deprived of the privilege of putting such big factor of production into strategic economic use.

Taxation Regime

In the United States of America, the control of acreage has been constructively done through the taxation regime. The bigger the land you own the higher the tax and the idler it is the further the tax increases. This has had the effect of discouraging hoarding the Land for speculative purposes. However, the bigger question in the current Bill is the viability of the method of regulation proposed in the legislation; this is the Part IV of the Bill. It does not propose either the minimum size or the maximum size that a person is entitled to. This is absurd since this part is the thrust of both the short and the long title of the Bill.

The foregoing notwithstanding, the Bill has made attempts in PART II at proposing a method and procedure for determining minimum and maximum acreages, only falling shy of placing an exact size that is discernable by the humble grassroots farmers. It has prescribed a litany of methodologies that make the Bill user-unfriendly. Instead of placing acquisition of property subject to satisfaction of an individual’s democratic tax obligation, it proposes creation of abstract mathematical formulae to be commissioned by the Cabinet Secretary as the basis of determination. This is an extreme antithesis as it is neither a constant nor a variable within the market forces of demand and supply that determine price margin for commodity value.

Actually it proposes several bureaucratic nuances that will only serve to move the matter from a simpler comprehension to a more complicated and further sophisticated process. This is done in the names of creation of Land Control Committees in PART III of the Bill. In fact it provides us with the classic example of the phrase the more things change the more they remain the same. It is typical reintroduction of the land Control Boards under the defunct provincial administration system. Is it the novel way of enhancing efficient effective and economic land management process? I guess not, for new wine in an old wine skin does not improve the broth. It will do well to consolidate Cap 318 Laws of Kenya and Cap 302 Laws of Kenya and amalgamate it with the taxation aspects to inject marginal diminishing appetite for land for its own sake.

Land Control Bill

I propose that the title of the Bill should be reviewed and renamed Land Control Bill 2015 with inclusion of strategic and progressive aspects of Agricultural Act (Cap 318) and the Land Control Act Cap (302) which of necessity should take into consideration progressive provisions in the County Government Act as well as the Urban Areas and Cities Act. Consequently, land whose owners may not meet the democratically imposed tax obligation may be reversed to the Land Commission upon prompt compensation. The compensation in this regard need not be adequate but sufficient enough to cover the cost of any improvement placed on the Land.

With this approach the Bill will optimize the return of much misused private land to the government for strategic future planning and use. Ultimately, it is my humble thesis that the Bill should be withdrawn and relooked in light of the progressive strategies that will encourage prudent, efficient, effective and economic use that accord with the democratic principles of the Constitution.

-Mr. Odhiambo is the Law Society

of Kenya (LSK) Deputy Secretary (Parliamentary Affairs & Legislation)

Why our National Anthem and flag will save us from Al-Shabaab

“Terrorism is a global phenomenon. And it baffles the mind. Unlike crime as we know it—say theft, where a person steals to gain something— terrorism mostly does not engender material gain and is mostly precipitated by religious or political extremism.” Mr. Salem Lorot

The Bard, William Shakespeare, through the lips of Henry in one of his plays Henry V, tells Gloucester before the battle of Agincourt, “Tis true that we are in great danger; the greater therefore should our courage be.” In the same vein, as a country, like Sebastian to Alonso in Tempest, from the deepest recesses of our being we let out these words: “But one fiend at a time, I’ll fight their legions o’er.” And fight the legion of terrorism we must— courageously but intelligently.

Terrorism is a global phenomenon. And it baffles the mind. Unlike crime as we know it—say theft, where a person steals to gain something— terrorism mostly does not engender material gain and is mostly precipitated by religious or political extremism. It then leads me to ask, “Why should a fellow human kill the other?” It still boggles my mind how another human would first blow up unarmed, peace-loving humans then blow up himself or herself. I am still grappling with these questions.

Mad Mullah

With Kenya’s incursion into Somalia,I have taken a keen interest in knowing more about this failed state. Of Bakol. Hiran. Belet Weyne. Galgadud. Dusa Mareb. Mudug. Galkayu. Nugal. Puntland. Bulohawo. Digil Mirifle Region. Algoi. Bur. Benadir. Merca. Of pastoral life of the Somalis. Of Sayyid Mohamed Abdille Hassan (the‘Mad Mullah’) who led a holy war against ‘infidel’ colonisers—especially Ethiopians and British. Of the birth of Djibouti in 1977 under President Hassan Guleid. Of the birth of the Somaliland Republic.

Of Somalia’s post 1991 political history after the overthrow of President Siyad Barre by the United Somali Congress (Hawiye) guerrillas. Of the Operation Restore Hope of 1992 by the United Nations. Of the Transitional Federal Government since 2005. The reason why I am retreating into Somalia’s history is to illustrate the point that the fight against terrorism is multi-faceted. In order to effectively deal with Al Shabaab, we need to understand Somalia and its nuances in the national psyche. We should feel its pulse at Mogadishu. It appears that as a country we have a disjointed knowledge of the Horn of Africa and an ineffective response mechanism for the Somalia question and now the Al Shabaab.

Al-Qa’ida

In Al-Qaida’s Mis(Adventures) in the Horn of Africa, a project of Combat Terrorism Centre, there are important lessons to be learnt. The report cites four reasons why Kenya is a target of terrorists:

 1) due to Kenya’s advanced economy and its long-standing ties with the United Kingdom, United States, and Israel;

 2) a functioning Kenyan sovereign government which limits the operational freedom of Western intelligence and counterterrorism units;

3) Kenya suffers from weak governance in a number of critical areas, including security and the criminal justicesystem. This discourages those Kenyans who might have relevant information from providing it to the authorities;

4) the presence of a disaffected minority Muslim population, especially along the Kenyan coast, provides Al-Qa’ida operatives an environment in which they can operate with less security pressure than elsewhere in the region. Although the report’s findings are on Al-Qa’ida, it would be safe to say that the issues enumerated still apply to the Al-Shabaab. It should be noted that the greatest challenge we face today in combating terrorism is within our borders as terrorists might find logistical challenge to wage their unconventional war in Somalia.

The report observes, “Weakly governed states often provide a more conducive environment for terrorists. Their sovereignty provides a measure of protection against strikes by Western forces.” Finally, in our fight against Al- Shabaab, we need to infuse within ourselves a good dose of patriotism. Our nation needs it. Direly.

-Mr. Lorot is a Legal Counsel, National Assembly

Containing Unruly Flight Passengers

"The triggering factors are many and varied but intoxication through alcohol, narcotics or medication, often starting before a passenger boards the aircraft are the most common."

An unruly or disruptive passenger is one who fails to respect rules of conduct at an airport or on board an aircraft or (fails) to follow instructions of the airport staff or crew members and thereby disturbs the good order and discipline at an airport or on board the aircraft, according to Annex 17 to the International Civil Aviation Convention 1944. An aircraft is considered to be in flight from the moment power is applied for the purpose of take-off until when the landing run ends.

Tokyo Convention

The Convention on Offences and Certain Acts committed on Board Aircraft (Tokyo Convention, 1963) governs the offences and other unlawful acts that occur on board an aircraft in flight, including unruly and disruptive behaviour by passengers.

Approximately 185 countries (known as contracting States) out of the 191 United Nations (UN) countries have ratified this convention making it one of the conventions with the highest number of ratifications. Kenya ratified the convention on 22nd June 1970 and it became effective on 20th September 1970. The convention applies only to civilian aircraft and criminalizes acts which, whether or not are offences, may jeopardize the safety of the aircraft or persons or property aboard it or which jeopardize good order and discipline on board while that aircraft is in flight.

The aircraft’s State of Registration is mandated to exercise jurisdiction over offences and acts committed on board and each contracting State is required to take such measures as may be necessary to establish its jurisdiction as the State of registry over offences committed on board aircraft registered in such State. The convention does not however, exclude any criminal jurisdiction exercised in accordance with national law. Unruly Passengers Since the entry into force of Tokyo Convention 1963 on 4th December 1969, the number and type of unruly and disruptive passenger events on commercial flights has increased steadily.

According to the International Air Transport Association (IATA) statistics, in 2010, there was one unruly passenger incident for every 1,359 flights while in 2011, there was one unruly passenger incident for every 1,200 flights.

Aviation Law

The triggering factors are many and varied but intoxication through alcohol, narcotics or medication, often starting before a passenger boards the aircraft are the most common.Other causes include irritation with other passengers’ actions on board, frustration linked to a passenger’s journey, mental breakdowns or episodes (such as acute anxiety, panic disorder or phobias), mental conditions (psychosis, dementia or bi-polar disorder), and environmental factors that surround flying,(such as gathering of large crowds at airports, sitting and travelling in a confined space, fear of flying and fear of possible unlawful interference events.

Huge Losses

Cases of disruptive passengersnot only result in inconveniences to the flight and passengers but also cause huge losses in terms of costs to airlines which may run into millions of shillings. The costs include the cost of diversion. In extreme cases and where the safety of a flight is at risk, the pilot-in-command would divert a flight mid-journey to disembark an unruly passenger.

Consequently, the affected airline would suffer losses due to cost of refueling as the aircraft may be required to dump fuel for unexpected early landing for the onward journey, additional landing fees and ground handling charges at the port of disembarkation. In some cases, accommodation costs and passenger compensation may be incurred due to delays.

Additionally, new members of crew may be required in case of time out. The resultant delays may also cause missed schedules, inconveniences and have a negative impact on the airline brand and reputation.

Restraint aboard

The pilot-in-command of an aircraft is empowered under Article 6 of the Tokyo Convention 1963, when he/she has reasonable grounds to believe that a person has committed, or is about to commit, on board the aircraft, an offence or act, to impose upon him/her reasonable measures including restraints. This is in order to protect the safety of the aircraft or of persons or property on board and further, ensure good order and discipline is maintained on board an aircraft and the Pilot- in-Command deliver such person to competent authorities or to disembark him/her in accordance with the provisions of the convention.

Airlines use different methods to restrain unruly passengers including the use of flex-cuffs (a type of plastic strap that functions as a handcuffs and easier to carry than metal handcuffs), seatbelts,adhesive tape, shoe laces, neck ties or whatever is available to immobilize unruly passengers on the seats. In Australia, the use of stun guns (an electroshock weapons that momentarily disables a person with an electric shock) is permitted. The convention grants immunity to the aircraft commander, members of the crew, any passenger, owner or operator of the aircraft, person on whose behalf the flight was performed against any liability on account of the treatment meted on the person against whom the actions were taken in accordance with the convention.

Legal Frameworks

The Tokyo Convention 1963 does not clarify what constitutes an offence and neither is there a documented list of what constitutes an offence. The International CivilAviation Organization (ICAO) has provided some guidance material but different States have different definitions of what acts amount to an offence. Therefore, there is no clarity in the legal framework to help define incidents of unruly passengers. However, one can generally state that it depends on the individual circumstance and the main consideration is if the behavior jeopardizes the safety of an aircraft in-flight then it is an offence under this Convention.

Common offences include illegal consumption of narcotics or cigarettes, refusal to comply with safety instructions, verbal confrontation with crew members or other passengers, physical confrontation with crew members or other passengers, uncooperative passengers, making threats that could affect the safety of crew, passengers and aircraft, sexual abuse or harassment.

Hot Water

Some reported cases of unruly behaviour include an Air Asia flight from Bangkok, Thailand to Nanjing, China in December 2014 which was forced to turn around after an irate passenger deliberately threw boiling water on a flight attendant. According to the airline, a Chinese couple who were travelling with a tour group became furious when they were seated apart. Instead of calming down when flight attendants were able to seat them together, the woman ordered instant noodles and boiling water and then proceeded to chuck the scalding water on a flight attendant after a dispute over payment.

Ebola Scare

In October 2014, a coughing and sneezing passenger flying from Philadelphia, USA to the Dominican Republic shouted “I’ve been to Africa and I have Ebola!” Consequently, the aircraft was held on the tarmac for more than an hour after landing, while emergency workers in hazmat suits removed the passenger from the aircraft. The passenger pleaded that he had only been joking but the airport had to take precautions. On 9th March 2014, a groom flying from Atlanta USA to Costa Rica forced Delta Air Lines flight to divert to the Cayman Islands after he got into an argument with his new wife en route to their honeymoon. Theplane then proceeded to USA

with the wife on board leaving him

in the custody of the Cayman Islands’

authorities.

Kisumu Passenger

In Kenya, on 17th November 2014 a passenger was charged before a Kisumu Court, accused of causing a one-hour delay for 27 other passengers by smoking an electronic cigarette on KQ aircraft flight 874. According to the charge sheet, the passenger refused to follow instructions by flight authorities to stop smoking.

Legal Loopholes

The biggest challenges with the existing legal framework dealing with offences committed on board an aircraft under Article 3 of the Tokyo Convention is the limited jurisdiction. The convention only recognizes the State of registry as competent to exercise jurisdiction.

This may have been true as at 1963 when the convention was negotiated but developments in the aviation sector has necessitated a review. In March/April 2014, ICAO convened a diplomatic conference in Montreal, Canada at which the contracting States came up with a protocol that among other issues addresses jurisdiction. Although the Montreal protocol, 2014 is not yet in force, it has extended jurisdiction to the State of landing (when the aircraft on board which the offence or act is committed lands in its territory with the alleged offender still on board) and to the State of the operator(when the offence or act is committed on board an aircraft leased without crew to a lessee whose principal place of business or, if the lessee has no such place of business, whose permanent residence is in that State.

Further, the current legal framework does not provide an enumeration of offences and penalties. This may pose a challenge in some jurisdictions if their Constitutions provide that a criminal offence must be clearly stated and attendant penalty stipulated. The ICAO has provided circular number 288 to provide guidance on what constitutes an offence but that remains just guidance material and not a penal code.

Mr. Wayong’o is a Legal Officer at the Kenya Civil Aviation Authority (KCAA)

New Feminism This Century

"Evidently, radical feminism fails to identify matriarchal oppression. For example women are actively
involved in sexual exploitation of other women through trafficking, prostitution and even pornography." Vollah Owino

In Bradwell v Illinois 83 US 130 (1873) Justice Bradley, delivered a poignant dictum that was

somehow conflated with misogynistic overtones. He rhapsodically stated: “It is true that many women are unmarried and not affected by any of the duties, complications and incapacities arising out of the married states, but these are exceptions to the general rule. The paramount destiny and mission of a woman is to fulfill the noble and

benign offices of wife and mother.

This is the law of the creator. And the rules of civil society must be adapted to the general constitution of things and cannot be based upon exceptional cases.” This benighted opinion signified

the institutional marginalisation of women in society. Indeed, the orthodoxy of cultural norms, Abrahamic religion and even science viewed femininity with contempt. Nonetheless, these obstacles were annihilated due to the feminist movements of the nineteenth century that gave women panoply of rights.

Wage Gap

However, it is apparent Radical- Marxism feminism evolved into subtle misandry due to the strong

resentment towards masculinity. First, radical feminism doctors statistics on gender discrimination to

win public sympathy. For example ‘wage gap’ argument that women earn less than men

within the same job description.

Nonetheless, renowned economist and Stanford Fellow Professor Thomas Sowell unmasked

this myth in his book Affirmative Action around the World. Sowell argues there are inherent factors

such as overtime and side jobs that dynamically alter the amount of income. Equally, the only difference in income encircles women who are mothers since they pursue careers that are coherent with the demands and dynamics of motherhood. However, the net income disparity between single women and men is naught if not marginal.

Marital Failure

Contiguously, is statistics on mortality. Statistics indicate the leading cause of death among middle aged men is suicide. This calamity stems from a myriad of issues such as marital failure, midlife crisis, job pressure and harsh economic times. Surprisingly, this information never reaches by the mainstream media which is infiltrated with feministic and gynocentric objectives.

Fourthly, is the impulsive war on the boy child. Acquiescently, there are numerous organisations and mechanisms that champion for the rights of the girl child compared to boys leaving them vulnerable and segregated. Along the same vein, is effimanisation of school syllabus and routine. Professor Christina Hoff Summers in The War on Boys contemporary school routine ridicules boys as ‘deformed girls’.

Therefore, boys are forced to recant their masculinity and embrace to feminine standards and

attributes. This squaring of the circle mission has contributed to poor academic performance and

the mounting rate of boys dropping out of school due to loss of interest. Evidently, radical feminism fails to identify matriarchal oppression.

For example women are actively involved in sexual exploitation of other women through trafficking, prostitution and even pornography. These examples signify that men are not the sole cause for women’s problems.

Cumulatively, democratic and constitutional state recognises the essence of gender equality. Nonetheless, this egalitarian objective should be approached from a complimentary rather than confrontational perspective. Consequently, is feminism ripe for counterreformation?

Kenya’s Security In The New Constitutional Dispensation

“The signing of the Kenya National Dialogue and Reconciliation Accord following the calamitous post-election violence set the country on a much desired path of constitutional, institutional and legal reform..” Chrisphine Owiye

The Government is a legal institution envisioned by the Constitution as the universal provider of security and solace to the citizenry. With a highly extensive structure, it is hoped that the Government houses the requisite infrastructure, facilities and professional wealth to not only secure the borders of the country but also offer intra-country comfort to citizens.

Defence Forces

It is worth noting that the reforms hitherto witnessed in the arena of security in Kenya did not come easily. The post-election violence in 2007/2008 provided an opportunity to relook the country’s security structure and abilities. Lives were lost and property worth hundreds of millions destroyed. Displacement of humanity in monumental proportions was witnessed all over. The signing of the Kenya National Dialogue and Reconciliation Accord following the calamitous post-election violence set the country on a much desired path of constitutional, institutional and legal reform.

The constitutional review process, which had witnessed several false starts, suddenly got a near all embrace culminating into the enactment and the promulgation of the Constitution in 2010. Instructively, the security sector benefitted remarkably under the new constitutional dispensation.

To begin with, Article 241 of the Constitution established the Kenya Defence Forces (KDF) which encompasses the Kenya Army, the Kenya Airforce and the Kenya Navy. The KDF is constitutionally responsible for the overall defense and protection of the sovereignity and territorial integrity the country.

At the apex is the defence council responsible for the overall policy, control and supervision of the forces. The membership comprises the Cabinet Secretary for the time being responsible for defence who presides as Chairperson, the Chief of the KDF, and the Principal Secretary in the Ministry responsible for defence.The KDF Act seeks to statutorily align the defence forces to the spirit and letter of the Constitution. Section 3 of its guiding principles requires the defence forces to respect and uphold the Bill of Rights and the values and principles enshrined in Article 10 of the Constitution.

Intelligence Service

The National Intelligence Service (NIS) on the other hand previously known as the National Security Intelligence Service morphed from the then dreaded department of National Police Force code name Special Branch and established in 1952 to provide intelligence to the British administration.

After independence in 1963, the special branch was transformed into the directorate of security intelligence and subsequently in 1999; the NIS was born following the enactment of the National Security Intelligence Service Act. The Constitution establishes the NIS captained by the Director General who is appointed by the President with approval of the National Assembly.

According to Article 242 of the Constitution, the chief mandate of the Service is to provide security intelligence and counter intelligence to enhance national NIS has been in the spotlight over giving and sharing of intelligence information on potential terrorist attacks. Probably time is nigh that we relooked the entire establishment, structure and systems of the NIS with a view of firming it up for a more effective and efficient discharge of its mandate

Police Service

The Kenya Police Service (KPS) has also travelled a tumultuous journey. The events following the post-election violence strengthened the push for police reforms. The Commission of Inquiry into Post-Election Violence (the Waki Commission) made a raft of recommendations including the initiation of reforms in the police service operations and creation of an effective system of police accountability.

A subsequent United Nations special rapporteur report did similarly accuse the police of extra judicial executions hence pressed the need for an overhaul and streamlining of the existing policing rank and file.The Government set up a task force headed by Judge Ransley to deal with the same and following its report, the Police Reform Implementation Committee was set up to oversee the implementation of the task force recommendations.

As a consequence, the National Police Service Act was enacted effectively merging the Kenya Police and the Administration Police into one single establishment under the command of the Inspector General of Police. Under the new dispensation, the capacity of the criminal investigations was enhanced in terms of funding and management.

Executive Interference

In a rather progressive bid to offer civilian tab over police action, the National Police Service Commission Act was enacted. The Act establishes a civilian board tasked with the onerous responsibility of overseeing the recruitment and appointment of police officers, reviewing standards and qualifications and receipt of complaints from members of the public. Since its establishment, the National Police Service Commission has faced a myriad of challenges such as lack of quorum in its sittings and threats to the life of the chairperson. The Commission has also encountered interference from the Executive for instance on 26th march 2015, the president in the state of the nation address faulted the ongoing police vetting process presided over by the commission as slow, demoralizing and allegedly as having a negative impact on the overall reform agenda in the police service.

Oversight Authority

The Independent Policing Oversight Act No.35 of 2011 on its part establishes the Independent Oversight Authority purposed to hold police accountable to the public in the performance of their functions. The civilian Authority was established to give effect to the provisions of Article 244 of the Constitution that requires the Kenya Police Service to strive for professionalism and discipline within its membership.

Another key role of the Authority is to ensure independent oversight of the handling of complaints by the Police Service. The most celebrated intervention by the Authority is High Court Petition No. 390 of 2014 in which the Authority successfully obtained orders quashing the 2014 police recruitment process on the premise that it was marred by allegations of corruption, tribalism, nepotism, professional malpractice and kindred integrity issues.

National Government

The Fourth Schedule of the Constitution provides that functions of the National Government include national defence and police services. This Constitutional provision limits matters security chiefly to the National Government. However, Article 189 of the Constitution makes handy provision for the co-operation between National and County Governments through support, exchange of information, coordination of policies and administration and enhancement of capacity.

The two levels of Government may set up joint committees and authorities in the performance of their functions in terms of the provisions of Article 189(2) of the Constitution. Matters security under the County Governments is legally cushioned by the County Government Act.

A prime objective of county planning is to inter alia make reservations for public security thus in planning activities, the County Government must Willy- nilly make

provision for County security. The provision of security vehicles by the County Governments of Machakos and Mombasa to the police as part of measures in boosting security infrastructure is an impressive showcase of this duty. In terms of Section 41 of the National Police Service Act, community policing is a flagship responsibility. The County Policing Authority chaired by Governors and with membership of persons appointed by the Inspector General, elected members nominated by the respective County Assembly and representatives of the community is a significant display of the fundamental essence of community policing at the county level.

By and large matters security are significantly addressed both in Statute and in the Constitution. It is therefore, prime that the various actors in the realm of security act in consort and with reliable consultations to enable us realize a secure and peaceful motherland- Kenya.

Mr. Owiye is the Manager in charge of Investigation and Prosecution at the Independent Electoral and Boundaries Commission (IEBC)

IS THE Judiciary Working Hard Or Hardly Working?

“The Judiciary must realise that substantial justice is not achieved by the volumes of cases they dismiss for want of prosecution but those of interested litigants that are resolved quickly and justiciably.” -Mr. Thuita

Earlier this year, the High Court undertook a radical move to dismiss old cases towards clearing the backlog, which has been giving the Judiciary a bad name. The exercise was said to be based on the Case Audit and Institutional Survey 2014.

According to the first statement in the Foreword Section of the Survey Report authored by Chief Justice g, it was stated that “…One of the barometers of effectiveness in the Judiciary is the size of the back log in the court system”. Internally within the Judiciary therefore, this clog in the courts was understood to be caused by the inactive files that had continued filling up registry cabinets.

Over 15,000 Files

The Judiciary then commenced an exercise whereby the first phase involved the listing for dismissals, over 15,000 files in the Nairobi High Court Civil Division. The exercise has been replicated in other parts of the country and divisions of the court.

The question to ask is whether this is the best pill for the clog and delayed justice for litigators. To the Judiciary officials, this is the best thing that has ever happened and during the state of the Judiciary and Administration of Justice Annual Report, the Chief Justice will gladly brag about how his institution has “resolved” more that 100,000 old cases in 2015 alone. Never mind that the resolution was by mere dismissals without hearing parties. To others however, particularly the legal practitioners, this is yet another serious goof by the Judiciary.

In two weeks of February when numerous Judges congregated in Nairobi to dismiss old cases, their stations were largely left unattended and litigants in active files lost out of rare hearing dates while the dispensers of justice were away handling “ dead” files whose owners had long abandoned them to die a natural death.

The Judiciary must realise that substantial justice is not achieved by the volumes of cases they dismiss for want of prosecution but those of interested litigants that are resolved quickly and justiciably.

Judicial Brag

While the Judiciary will brag about the number of cases they have dismissed, there is no reflection of joy in the populace. There is no jubilation that pending cases have been resolved. No matter how many cases are dismissed for want of prosecution, the court users shall continue crying for hearing dates for their case.

In Nairobi courts, litigants are now accustomed to the fate of having court diaries declared permanently full. Instead of wasting time on abandoned cases, it would serve the Judiciary better if they can expedite the hearings of cases that litigants are interested in. Accordingly, as long as it keeps directing its energies in unnecessary exercises, the Judiciary will remain hardly working.

On the flipside though, the Civil Service Week between the 15^th to the 19th June 2015 has shown that the exercise of dismissing old cases can serve another purpose. This process has become a training ground for newly admitted Judges.

After their induction and “internship” under the old Judges, the first cases the newly admitted Judges will have to contend with are old inactive files. This is a positive step instead of having seasoned Judges leaving their busy stations to handle matters whose parties lost interest eons ago.

-Mr Thuita is an Advocate of the High Court of Kenya. He can be reached at gourdarrow@gmail.com

Single Mothers’ Pain Of Raising Child Solo Eased

Child Law Article 53 (e) of the Constitution which provides that every child has a right to parental care and protection which includes equal responsibility of the mother and father to provide for the child, whether married to each other or not.

Birth registration is a fundamental human right. It not only gives a child a recognized legal existence and identity, it is the sign that a child ‘belongs’ to a family, a community and a nation. It shows that a child has a place, and a stake, in all three.

Before the promulgation of the Kenyan Constitution 2010, no right on support and maintenance of a child born out of wedlock accrued on the father where there was no legal relationship between the mother and the father. The only remedy that the mother had was in the customary law, which provides for pregnancy compensation, but the compensation is usually paid directly to the mother parents, and does not necessarily benefit the child. Name and Nationality Article 53(1) (a) of the Constitution guarantees every child the right to a name and nationality from birth.

The legal position after the promulgation of the Constitution is that the position of joint responsibility of both parents, whether married to each other or not, is guided by Article 53 (e) of the Constitution, which provides that every child has a right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child.

This provision was upheld in a landmark case of Zak & Another vs. The Attorney General & Another (2013) KLR. In this case, the petitioner challenged the Constitutionalism of Section 24(3) of the Children Act and Section 25. She argued that these sections infringed Article 27(1) of the Constitution, which states that every person is equal before the law and has a right to equal protection and equal benefit of the law. In line with that argument, Justice Mumbi Ngugi stated that it was unconstitutional for the Children Act placing the responsibility of the children born outside marriage only on the mother. In this regard, the provisions of section 90(a) and (e) of the Children Act were unconstitutional, considered alongside the provisions of Section 24(3), which places the responsibility of the child on the mother at the first instance where the mother and the father are not married.

Father and Mother

Under Section 12 of Births and Deaths Registration Act, no person shall be entered in the register as the father of any child except either at the joint request of the father and mother or upon the production to the registrar of such evidence as he may require that the father and mother were married according to law or, in accordance with some recognized custom. The foregoing provision indirectly shelters the man who gets children out of wedlock. This provision in effect ends up punishing and disadvantaging not only the child but also the mother of the child born out of wedlock.

Under Article 27(4), the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth. Section 5 of The Children’s Act says no child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, color, birth, social, political, economic or other status, race, disability, tribe, residence or local connection.

Obviously the child’s surname flows from the parents’ family names. The fact that they are born out of wedlock should not form the basis for discrimination at all. A statute that countenances and allows the non-disclosure of the father simply because the parents are not married has to be interrogated.

Basically there is a need to protect these children under Article 27 of the constitution and Section 5 of the Children’s Act so as to bring them to par with the children born within the marriage.

– Ms. Simani is a lawyer