Volume 1 | Issue No.

1 | May - June 2016

the

JURIST

Magazine

KENYAN SEC TION OF THE INTERNATIONAL COMMISSION OF JURISTS

TOP ARTICLES
Credibility Crisis 1
What Kenyans can do about it

First Justice
For War Victims of Sexual
and Gender Based Violence

17

Access to Justice 11
Reflections on salient features of
the Legal Aid Act, 2016

Access to Information 21
Bill 2015 Finally Passed by
Parliament

DR WILLY MUTUNGA
COMMON WEALTH SPECIAL ENVOY TO THE MALDIVES
OUT- GOING CHIEF JUSTICE OF THE REPUBLIC OF KENYA

CONTENTS

ISSUE

#001-2016

ACCESS TO INFORMATION:
Bill 2015 finally passed by
Parliament

EDITORIAL BOARD

Chairperson

MOSES OKINYI

Samwel Mohochi

Pg19 CSO CONFERENCE

Executive Director

Vice - Chairperson

ON THE LEGAL AID REGIME

Elsy Sainna

FRED KIPKOECH

Deputy Executive Director

Members

Chief Editor

CREDIBILITY CRISIS
WHAT KENYANS CAN DO ABOUT IT
STEVE OGOLLA

Moses Okinyi
Communications Officer
moses.okinyi@icj-kenya.org

Sub-Editors

Pg1

The waning public confidence that threatens to deny the Supreme Court the institutional
legitimacy it desperately needs going into the 2017 elections is a matter that should
concern all Kenyans...

Pg 5

Steve Ogolla
Programme Officer
Human Rights Protection
Silas Kamanza
Kenya School of Law Pupil
silas.kamanza@icj-kenya.org

Pg21

The State is obliged by Article 35(3) of the

Constitution to publish and publicize any
important information affecting the nation....

Moving towards enhancedAccess to Justice in Kenya,

story of THE Wanjiku
JENNIFER GITHU

Design & Layout

Silas Kamanza
Kenya School of Law Pupil
silas.kamanza@icj-kenya.org

Pg11

Pg13 JUDICIAL REFORMS

MY STORY, JANES STORY

ACCESS TO
JUSTICE

NELLY WAREGA

Pg25

COVER PAGE
Dr Willy Munyoki Mutunga is a
Professor of Law, reform activist and
the current Common Wealth Special
Envoy to the Maldives . He is the out
going Chief Justice of the Republic of
Kenya.

Truth, Justice AND dignity: Elusive justice for

victims of post-election violence

TERESIA MUTUA

Reflections on
salient features
of the Legal Aid
Act, 2016

FIRST JUSTICE: FOR WAR VICTIMS OF

SEXUAL AND GENDER BASED VIOLENCE
EDIGAR KAVURAVU

Pg17

Victims of SGBV have waited for so long for SGBV to be

the main focus of a trial in an international courtroom...

Almost 10 years down the line, the government of Kenya has failed to hold accountable anyone at a midlevel or high-level of responsibility for crimes committed during the PEV...

PG 33 CASE HIGHLIGHTS
Silas Kamanza

stablished in 1959, The Kenyan Section of

the International Commission of Jurists (ICJ
Kenya) is a membership, non-governmental,
non-partisan and not-for-profit premier
human rights organization promoting a just, free
and equitable society. It is an autonomous national
section of the International Commission of Jurists
based in Geneva, Switzerland with similar policy
goals.
ICJ Kenya works on the promotion of human rights,
the rule of law and democracy in Kenya and across
Africa. The organization admits to its membership
lawyers and judges.
Members are drawn from the various divisions
of the legal profession and share common beliefs
and values on freedom, justice and peace for all,
equality, social and economic equity and the respect
for human dignity for every human being. Currently,
the organization comprises of 540 members.
This first issue of ICJ Kenya magazine focuses on
thematic areas on the legal aid regime, Access
to Justice, justice for victims of sexual and gender
based violence and the credibility crisis in the
Supreme Court.

From the Editors Desk

540
ICJ Kenya Members

ii

THE JURIST MAGAZINE

Kenyanpost

THE JURIST MAGAZINE

The Judges of the Supreme Court of Kenya

CREDIBILITY CRISIS

that should concern all Kenyans. It is

The

no longer outrageous or alarmist to

related to the retirement farce. A

imagine that the ghosts of 2007 may

section of Supreme Court judges

return to haunt the country. The post-

Mohammed Ibrahim, Njoki Ndungu

election violence that rocked the

and Jackton Ojwang, decided to go

country following the disputed and

on a solidarity protest whose main

discredited presidential elections of

highlight was the refusal to attend

2007 was largely attributed to low

Court to express disgust with the JSC

levels of public confidence in the

directive to retire their colleagues. A

judiciary.

public spirited individual immediately

Supreme Court Crisis

second

problem

is

closely

petitioned the JSC to commence the

process to remove the judges from
office for gross misconduct. Six

The crisis at the Supreme Court

months later, the JSC has reviewed

is threefold. First, the genesis of

the petition and ruled that the

the problem can be traced to the

conduct of the judges was indeed

refusal by a section of judges of

unbecoming

What Kenyans Can do About It

the Supreme Court to retire upon

misconduct, and admonished the

attaining the age of 70 years in spite

judges. The legality of that ruling,

of clear constitutional provisions

however, has been contested by

By Steve Ogolla

and near unanimous public concern

both parties as fundamentally flawed

about their continued stay. The

and constitutionally offensive. The

perception that Justices Kalpana

petitioner has maintained that the

Rawal and Philip Tunoi are riding on

decision to reprimand as opposed

technicalities to defeat the calls for

to recommend the appointment of a

ne of the cardinal principles of the rule of law is that the judiciary must be

retirement has gained legitimacy. The

tribunal to investigate the conduct of

independent, impartial, honest and competent. Yet these very foundations

Judicial Service Commission ( JSC),

the judges is highly irregular. A critical

upon which a robust, independent and functional judiciary is predicated

the Attorney General, Law Society

concern, however, is whether the

have been substantially weakened with the consequence that the judiciary,

of Kenya, and the High Court have

judges have already preempted the

and the Supreme Court in particular, has been plunged into a serious credibility crisis of

all maintained that judges ought to

outcome of a matter that may well be

unimaginable proportions in the post 2010 dispensation.

retire upon attainment of the age of

placed before them if Justices Tunoi

70 years. The affected judges have

and Rawal fail at the Court of Appeal.

The waning public confidence in the Supreme Court could deny the institution the

however approached the Court of

The third and devastating problem

legitimacy it desperately needs going into the 2017 elections. This is a significant matter

Appeal for a second judicial opinion.

that has deepened the crisis at the

The waning public

confidence that
threatens to deny the
Supreme Court the
institutional legitimacy it
desperately needs going

Judicial Independence

into the 2017 elections

is a matter that should
concern all Kenyans...

and

amounts

Steve Ogolla is a Programme Officer

under the Human Rights Protection
Programme at ICJ Kenya

to

Supreme Court that Justice Tunoi is

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THE JURIST MAGAZINE

alleged to have received two million

conflict of interest. However, that

judges or decline to recommend a

There are three possible options

dollars (Sh200 million) in order to

would be a hard call. The Supreme

tribunal the presumption would be

that could be explored to get the

influence an election petition against

Court is likely to be guided by its own

that justice Tunoi applied the entire

Supreme Court out of the credibility

Nairobi

Kidero.

decision in Jasbir Singh Rai & 3 Others

amount of Kshs. 200 million to his

crisis. First is to appeal to the moral

The petition was filed by election

v Tarlochan Singh & 4 Others (2013)

own benefit. The public would find

or ethical consciousness of Justices

challenger Ferdinand Waititu. Again,

where it held that the doctrine of

that an improbable cause. Already

Tunoi and Rawal to retire voluntarily

justice Tunoi is joined at the hip

necessity must operate in order for

Law Society of Kenya has expressed

irrespective of the outcome of the

with justices Mohammed Ibrahim,

the Supreme Court to perform its

concerns that Justice Tunoi alone

case at the Court of Appeal. Secondly,

Njoki Ndungu and Jackton Ojwang

Constitutional functions. Accordingly,

could

the JSC should proprio motu institute

in the court of public opinion. The

in order to impanel the bench of five,

outcome of the petition.

perception that if the allegations

either justice Tunoi or justice Rawal

other judges of the Supreme Court

against justice Tunoi were to be

or both would have to sit in their own

who sat in the Kidero petition with

proven, then he may have received

cause. Needless to say, the outcome

the money for the benefit of the other

of such a bench would be of dubious

judges on the bench comprising

legality.

Governor

Evans

of justices Njoki Ndungu, Smokin

Justice Philip Tunoi, Judge of the Supreme
Court of Kenya who is facing bribe
allegations

Wanjala,

Mohamed

Ibrahim

have

influenced

the

an inquiry of impropriety, on the

Which Way Forward?

a view of establishing the veracity of

the allegations of corruption, and or

The inescapable conclusion is that

gross misconduct or misbehavior of

the credibility of the Supreme has

the said Judges. If a Tribunal(s) were

and

Similar constitutional dilemma would

been completely obliterated. Even if

to be established in respect of all or

Jackton Ojwang, cannot be wished

play out in the event that the JSC

justice Tunoi were to be cleared, the

any of the judges, then it would be

away.

were to move to the Supreme Court

dignity and integrity of the judge, and

imperative to expedite proceedings

on appeal. Similarly, since Justices

the Supreme Court in general, has

to allow the JSC to commence the

Ojwang, Njoki, and Ibrahim have

been lowered to the rock bottom.

process of replacing judges found

openly stated that they believe the

The JSC in its statement read by

culpable if at all. Thirdly, even if

retirement age of judges appointed

the Chief Justice, Dr. Willy Mutunga,

all the judges survived the turmoil,

under the old constitution is 74

recommending the formation of the

Parliament could consider necessary

years, and reinforced that belief by

Tunoi Tribunal stated unequivocally

legislative action to establish a

The total number of the Supreme

withdrawing services in support of

that

inappropriate

Tribunal of respected judicial minds

Court judges at any given time under

their colleagues, it woul not be safe

interaction

communication

from the Commonwealth that would

the Constitution is seven while the

to expect them to be impartial when

between Justice Tunoi and agents

be entrusted with determining any

minimum that must sit and determine

the matter is placed before them.

of a litigant in a matter pending

dispute arising from the presidential

Is there a
Constitutional
Crisis?

there

was
and

before the Supreme Court. As to

election of 2017. Fourthly, Parliament

to retire in less than weeks. That

The unintended consequence of

whether that inappropriate contact

can reenact Article 166 of the

means that the only allowance given

the Tunoi Tribunal should it find that

led to the exchange of a bribe would

Constitution to require new judges

by the Constitution of the judges who

the allegations against justice Tunoi

be a matter to be resolved by the

of the Supreme Court other than

may be away for whatever reason,

are proven, would be to probe the

Tribunal. This raises serious concerns

those

including illness, retirement or worse

other three judges who sat alongside

as to whether justice Tunoi and the

the Constitution is the supreme

still, death, is one. Then there is the

Justice Tunoi in the Kidero Petition.

Supreme Court by extension can

law within its domain, the status

matter of the retirement pending

Again,

reconstruct the tattered image of a

quo

before the Court of Appeal. If Justices

Ndungu and Ojwang, would stand

corrupt, inept, and moribund Court.

the creation or adoption of a new

Tunoi and Rawal are unsuccessful

suspended as they battle to clear

Indeed,

have

objective normative legal order that

and elect not to move the Supreme

their names in separate tribunals. In

already indicated that if they lose the

is based on an ethical principle that

Court, the number of judges will drop

such circumstances, only two judges

elections in 2017, they will neither

negates the acceptability of the old

to only four which would be below

Justices Wanjala and Kalpana,

accept the results nor petition the

order.

the quorum set by the Constitution,

if she overcomes the retirement

Supreme

and a constitutional crisis would be

hurdles, would be available to sit thus

suggests that there exists a distinct

inevitable. However, if Justices Tunoi

occasioning another constitutional

possibility of the politicians resulting

and Rawal are unsuccessful and

crisis. However, the JSC must be

to violence as a way of asserting their

elect to move to the Supreme Court,

acutely aware about the looming

positions. It would nave and reckless

it would mean that only four judges

crises and would perhaps be reluctant

of people of goodwill to leave it to

would be available to sit if the Court

to recommend a tribunal in respect

chance, because the past has shown

has the conscience to avoid a massive

of any of the three judges. If the JSC

us that chance does not always

irreconcilable and insurmountable

were to refuse to investigate the three

guarantee a stable outcome.

a matter is five. Dr. Mutunga is due

not

Justices

Ibrahim,

Njoki

some

Court.

politicians

Obviously,

presently

would

be

serving.

altered

Since

through

this

Justice Kalpana Rawal, Judge of the

Supreme Court of Kenya

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There may be challenges along the

article 48 and other provisions of the

way, but there is hope.

Constitution while reaching to the

very soul of the constitution of Kenya

Equal justice under the law is

which is the people. The legislations

the ideal in every society. It is

assert the preamble which is the

fundamental that justice should be

proclaimed faith of the republic of

served and seen to be served equally

Kenyan people. There is an intentional

regardless

status.

attack on divisiveness and inequality

The Constitution of Kenya contains

laced through entire constitution as

several provisions related to the

it promotes equality and the rule

issue of access to justice. This new

of law. In country where justice is

right obligates the state to facilitate

expensive the implementation of

justice to all on equal basis. The right

the Legal Aid Act will see to it that all

to access to justice bundles several

indigent persons are represented in

rights including; the right to access

a court of law.

of

economic

culturally appropriate, procedurally

friendly,

accessible,

The Small Claims Court Act will set

physically accessible justice and the

economically

up sub county level courts that will

right to legal awareness and legal aid.

be dealing with claims that must

Article 48 of the constitution provides

have value for money. The amount

that, the state shall ensure access to

as specified by law must not exceed

justice for all persons and if any fee

Ksh. 200,000. These courts will

is required, it shall be reasonable and

only deal with civil matters and will

shall not impede access to justice.

entail an expeditious and informal

Jennifer Githu is an intern under the

Governance Programme at ICJ Kenya

process that is most likely to produce

A NEW DAWN

In terms of physical access to justice,

amicable results. With these new

the state has been working to ensure

legislations Kenyan can begin to

easier access to judicial services by

hope for a better tomorrow.

setting up more courts to ensure

that courts are reasonably close to
the people. However, this does not
encompass the entire scope of access

Moving towards ENHANCED Access to Justice in Kenya,

to justice; the other ingredients are

story of THE Wanjiku

the right to expeditious resolution

By Jennifer Githu

justice. The first pillar of the Judiciary

Kadzo is a member
of the Court Users
Committee in her
home area, where she
is actively involved
in instituting judicial
reforms...

of

disputes

in

accordance

with

the principles of law and natural

Transformation Framework focuses

adzo can today morning walk to the stream to fetch water smiling, things are
looking good. It is not like the days of her grandmother, the one she is named
after. She can now proudly carry a pocket constitution in her kanga wherever
she goes. She is willing to defend her sovereignty and dignity.

Kadzo is a member of the Court Users Committee (CUC) in her home area, where she is
actively involved in instituting judicial reforms. She affirms that the courts are now more
accessible and the Judges and magistrates are friendlier, unlike the days of her folks. She
is jubilated that parliament recently passed the Legal Aid Act, the Small Claims Court Act
and the Access to Information Bill. She can now apply for legal aid and get assistance
not only for her but her community as well. She now has a new inexpensive avenue of
claiming her Ksh 50,000 from Ngumbao from the sale of her latest farm produce.

the right to legal representation and

on the delivery of justice. The judiciary

has been working towards improving
the speed and affordability of justice,
raising

public

understanding

of

the law and court procedures and

promoting

public

participation

through the Court User Committees.

These efforts have had some degree
of success as Kenyans can now feel
the developing transformation.
The Legal Aid Act and the Small
Claims Court Act breathe life to

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NYS FUNDS SCANDAL

200

Million
allegedly lost

47

10

By Silas Kamanza

WHAT IF?

counties

suspects approx

20m
20m
20m

youth groups
from each county

20m
20m
20m
2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

2M

20m
20m
20m
20m
EACH SUSPECT

1 wife, 2 Kids

1880
member youth
directly benefiting

Mpango wa
Kando

Land
Land
Land

9400
individual family
members directly
benefiting

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How ICJ Kenya Works

Over the years we have used a combination of approaches and methods to
deliver our strategies. Our signature approach is advocacy.

Advocacy
Our advocacy efforts mainly target to influence policies and decisions at different
levels including county, national, regional and international levels. We implement
advocacy through a combination of strategies including lobbying, activism,
awareness creation and capacity building.

Capacity Building
Our capacity building interventions target government
institutions as the providers of services, non-state actors as
intermediaries and advocacy partners, and the community as
the consumers of services. Moving forward we will ensure our
capacity building support is driven more by demand than by
supply.

Awareness Creation
We recognize the knowledge and information gap in society
in a wide range of governance and human rights issues. Moving
forward we plan to strengthen our efforts in bridging this gap
by developing a more robust knowledge management plan and
that integrates modern and innovative technologies that are more
accessible by the public.

Partnerships
We recognize the importance of developing and sustaining strategic partnerships. We
will continue to identify and strengthen partnerships with a variety of stakeholders ranging
from small community support groups, individual human rights defenders, other non-state actors,
the private businesses, government institutions and intergovernmental institutions.

We strengthen our advocacy efforts through the application of a number of other

approaches including research, coalition building, litigation, partnerships development,
capacity building, and awareness creation.

Research
We support and facilitate research to generate new information and knowledge
that is used internally to inform advocacy and capacity building. The
information is also made available to other stakeholders for use in a variety
of ways. The research is conducted by a number of actors including our
staff, members, citizenry and consultants that we engage based on
need. During this Strategic Plan we plan to enhance our research
capacity further by developing ICJ Kenya Consulting and the
establishing stronger partnerships with other research and
academic institutions.

Coalition Building
Establishment and development of advocacy coalitions
is an effective tool not only for amplifying our voices by
drawing on the support of like-minded organizations,
but also for mitigating the risks associated with advocacy
on contentious issues. We will continue strengthening
coalitions that we find beneficial to the causes we
care about while at the same time scaling down our
participation in coalitions that add no value to our work.

Litigation
We undertake litigation to strengthen achievement of advocacy
results. The special constitutional status of the courts and other
tribunals, both national and international, provide opportunities for the
correct interpretation of laws. Courts can speak with finality on questions
regarding the rights of individuals, and can clarify difficult social and political
issues. The decisions of the courts bind the executive and legislative branches of
government, improving chances of compliance. Litigation catalyses the incorporation of
international standards within national legal systems. Further, litigation can also act as a basis
for mobilization of actors around issues of common interest.

10

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Elsy Sainna is the Deputy Executive

Director at ICJ Kenya

Participants attending and ICJ Kenya Members Forum

on the Legal Aid Act 2015 and the Witness Protection
Rules of Court 2015 in Naivasha recently.

A closer look at the salient features of the Act reveals

This establishment sets a national and seemingly

an ambitious and comprehensive legal regime. The

sustainable structure for the provision of legal aid in the

preamble, guiding principles and objects of the

country.

Act

are anchored on constitutional provisions and spirit

Access to justice

Reflections on salient features of

the Legal Aid Act, 2016

contained under Articles 19 on rights to fundamental

freedoms, Article 48 on right to access justice, Article 50
(2) (g) (h) on the right to choose counsel and be informed
of legal representation at the expense of the state.

A key feature of the Act is

that it creates as Legal Aid
Service, as a state agency
with broad functions. Some
of the central functions that
are of particular interest to
ICJ Kenya include but are

he much awaited law covering the legal aid regime was finally passed by
parliament and obtained assent from the President on Friday 22nd April
2016. The enactment of the Legal Aid Act, 2016 (the Act) marked an end to
a long and tedious journey by civil society who have been on the forefront

campaigning for its enactment. The eventual Legal Aid Law was attributed to its
strong watch dog role that ensured that state upheld its international human rights
obligations, specifically on the right to access justice. Thus, for Wanjiku, this draws
her closer to the elusive goal, quest to access justice.

not limited to the agency

The advocacy efforts began over twelve years ago with the formulation of the Legal

and these are governance,

Aid Policy. The consultations were robust amongst stakeholders who included civil

administration of the legal

society organizations, state agencies such as the Law Reform Commission (KLRC),

aid fund ...

Kenya National Human Rights Commission (KNCHR) and the National Legal Aid and
Awareness Programme (NALEAP) an agency established then under the Ministry of
Justice to pilot the legal aid regime, prior to the promulgation of the Constitution in
2010.

aid. It provides that for purposes of the Act, Legal Aid

entails legal advice, representation, drafting of relevant
documents, giving effect to ADR and out of court
settlements, awareness raising and recommendations

Service, as a state agency with broad functions. Some

for law reform

of the central functions that are of particular interest

and these are governance, administration of the legal
aid fund including accreditation of legal aid providers,
development of standards and guidelines, promotion
of alternative dispute resolution and public interest,
research in the field of legal aid with special reference
to the needs among indigent persons and marginalized
groups.
The

Act

There exists several opportunities for ICJ Kenya to

robustly engage in implementation of the law based on
definition of what constitutes legal aid. Besides providing
pro bono legal representation, legal awareness will be
ICJ Kenyas priority going forward. Furthermore, it is
intended that the legal aid regime will be devolved and
administered through Justice Advisory Centers. Other
than legal practitioners, various institutions such as the
Judiciary are charged with corresponding obligations

covers

civil

matters,

criminal

matters,

to ensure successful implementation of the legal aid

constitutional matters, children matters, constitutional

regime.

matters and public interest litigation. All citizens of

Kenya to act as an interlocutor amongst the justice chain

Kenya, children, refugees, victims of human trafficking

actors.

and stateless persons will be eligible to apply for the

Legal Aid. In addition, officers in charge of persons in
custody are obligated by law to inform the persons in
custody of this right in a language that they understand
and avail them with application forms for the Aid. This
duty also extends to the Court. The Act also sets up the
National Legal Ad Service which will be in charge of the
legal Aid and overseen by a board.

11

the outset who is eligible and what constitutes legal

A key feature of the Act is that it creates as Legal Aid

to ICJ Kenya include but are not limited to the agency

By Elsy Sainna, Deputy Executive Director

Of particular interest is that the Act defines from

This presents a further opportunity for ICJ

Going forward, ICJ Kenya will continue to ensure that

the government allocates adequate resources in order
to breath life into the legal aid regime for the board to
optimally realize its functions. In the meantime, ICJ Kenya
will mobilize its membership to take on accreditation and
provide pro bono legal services. Only then will ICJ Kenya
truly be deemed to have achieved its ideals of promoting
a just, free and equitable society for all.

12

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to take up their roles that promote

through the Paralegal coordinator).

and support judicial reforms.

James and Maria walked with us
Very easily, the practice of this term

since I met them until the last day

judicial reforms gets lost in the

when the judgment was read- and

theories discussed in the capacity

those were over three years. And

building and awareness creation

even today I meet them and they

meetings. But once in a while, I come

ask about my progress and that of

across a case- a story- that makes

my daughter. They also advised my

me pause- smile even- because the

husband not to take the money from

all so familiar terminology judicial

Toms family

reforms gains life.

Janes mother recalls the numerous

Members of the the Kitui Paralegal Network at

a recent ICJ Kenya Training on CUCs.

One such story is of Jane*. Jane comes

times the paralegal network has

from a poor family in remote Kitui.

helped her. One instance stood out

Her mother sells githeri to educate

for me. She explains how James and

her and her three brothers. Janes

Martha pushed the Investigating

sour relationship with Tom* changed

officer (IO) and the prosecutor from

her life completely. Tom cuts her up

the Office of the Director of Public

with a panga and chops off her arms

Prosecutor (ODPP) to add to the

leaving her to bleed to death. She did

offence of grievous harm the offence

not die, she survived. Her mother

of attempted murder. And indeed

had been told that only those with

this happened.

money go to court. She was afraid of

going to the police station because,

Janes mother explains that despite

she needed money there too.

the free help from the paralegals, she

was still uncomfortable letting the

JUDICIAL REFORMS

MY STORY, JANES STORY

By Teresa Mutua
She would always
hear whispers that the
magistrate handling her
case was very unfriendly,
she was afraid that
the magistrate would
intimidate her! The

he Judiciary is one of the three co-equal arms of government. Its chief mission
is to resolve disputes in a just manner with a view to protecting the rights and
liberties of all, thereby facilitating the attainment of the rule of law ideal. It
performs this function by providing independent, accessible and responsive

fora for the resolution of disputes.

ICJ Kenyas Access to Justice (A2J) Program aims at promotion of the citizens access to the
courts of law in Kenya and Africa. A2J promotes access to justice through advocating for

magistrate was polite

an independent and accountable judiciary in Kenya and in the region. The programme

but firm as well.

engages the judiciary with the focus on the rule of law, human rights, with a view to
entrenching constitutionalism.
I have trained on various occasions on judicial reforms. I have been involved in training
Court User Committees (CUCs) and paralegals on judicial reforms: I always challenge them

13

While Janes mother pondered over

court decide her childs fate. It didnt

the course of justice that fits her

help that Toms family occasionally

pocket, Janes father had a different

intimidated her, warning that were

idea all together. He had been

wealthy enough to buy the court.

approached by Toms family who had

She would always hear whispers that

proposed to give him Kshs. 100,000/=

the magistrate handling her case was

to throw away the case. He shared

very unfriendly, she was afraid that

this brilliant idea with Janes mother.

the magistrate would intimidate her!

She refused. Even though she was

The magistrate was polite but firm as

painully aware that they were very

well.

Teresa Mutua is a Programme Officer

under the Access to Justice Programme
at ICJ Kenya

poor and needed the money, she

also knew that Jane deserved more

Janes

than just money. She knew that Jane

magistrate gave Tom so much time to

deserved justice and Tom must pay

respond or to go through documents

for his actions.

or to ask questions. Even worse for

mother

recalls

how

the

her, the magistrate granted Tom bail.

While at the market place, Janes

But the paralegals kept telling me

mother is told of a group of paralegals

that even Tom had the right to justice.

who help people for free. She decides

So I encouraged my daughter and

to pay them a visit. She sets up a

hoped that the truth would come out

meeting with two paralegals, James

eventually.

and Maria* (ICJ Kenya has trained

these

paralegals

and

constantly

monitors the work that they do

14

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THE JURIST MAGAZINE

It was not easy for Jane or her

You know I can go to the shops

mother. From the time Tom was

now! I used to be afraid to go to the

granted bail on the day of delivery

toilet but after Tom went to jail, now

of the judgment, they had to hide

Im free. You see, I have even gone

at Janes uncles home in Nanyuki.

back to school! It is a school for the

They had received threats from

physically disabled, so they teach us

Toms family and were afraid that

how to cope. Now I can even write!

Tom, since he was out on bail,

would try to harm her.

She

pauses.

Then

remembers

something. She raises her hand

The light at the end of the tunnel

again, a smirk on her face.

moment for Jane and her mother

was the 24th of March 2016, when

I just wanted to add that I dont

the same soft and polite magistrate

have nightmares anymore.

read out the judgment against Tom.

He was sentenced to life in prison.

I look at her mother. She is happy,

nods at Janes every word. And this

Jane had been quiet throughout

is how she ends her story- Janes

the interview. I decided not to push

story.

her to speak if she did not feel

I now know that a poor person

comfortable. But as her mother

can get justice from the court. I had

explains to me about Toms life

heard so many bad things about the

sentence, Jane jumps in. A little.

court, but now I know they are not

Then she realizes that she is

true. Even a polite magistrate can

speaking before her mother has

give tough judgments!

finished speaking. So she raises her

hand up- being polite, I guess.

What more can I say? I think of one

thing judicial reforms!

Im happy to hear her speak, and

quickly I ask the mother to give her
a chance.

15

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THE JURIST MAGAZINE

ICC Trial Chamber III declares Jean-Pierre Bemba Gombo

guilty of war crimes and crimes against humanity on 21st
Edigah Kavuravu is a Programme
Officer under the International Justice
Programme at ICJ Kenya

March 2016

FIRST JUSTICE

violence in Kenya. All the accused

aids, abets or otherwise assists in

submissions related to the sentence

persons charged were later released

its commission or its attempted

that

from trial for lack of sufficient

commission,

will

FOR WAR VICTIMS OF SEXUAL AND GENDER BASED

evidence to sustain their trial.

the means for its commission. The

sentence.

Judges in the Bemba trial ruled

strengthen ICCs credibility in Africa.

VIOLENCE

The conviction of Bemba heralds

that as commander-in-chief of the

However, the Court still has work to

rebel force known as the Movement

do to establish its credibility. The

By Edigah Kavuravu

impunity

for the Liberation of Congo (MLC),

court has never prosecuted a sitting

Bemba knew that his troops were

head of state and has struggled to

brutalizing civilians in the Central

enforce high-profile arrest warrants

African Republic (CAR), but he failed

e.g. the warrant against the Sudanese

to deter or punish the crimes.

President Omar Hassan al-Bashir.

a new resolve in the fight against

main focus of a trial

in an international

implicated in the crimes. Bemba, a former rebel leader who later served as a vice

courtroom...

president in Congo, was on 21st March 2016 found guilty of two counts of crimes

waited for so long

for SGBV to be the

wo important lessons can be drawn from the emblematic conviction of

Jean-Pierre Bemba Gombo by The International Criminal Court (ICC). First,
The Courts recognition of Sexual and Gender Based Violence (SGBV) as
a weapon of war, and second, the fact that the Court can punish militia

leaders and military commanders even when they were not personally directly

against humanity (murder and rape) and three counts of war crimes (murder, rape,
and pillaging) committed in the context of the situation in Central African Republic
in 2002-2003.
Sexual and Gender Based Violence as a Weapon of War
Victims of SGBV have waited for so long for SGBV to be the main focus of a trial
in an international courtroom. Earlier failed attempts at prosecuting SGBV at the
ICC included, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and
Mohammed Hussein Ali. The accused persons were charged with rape and other
forms of sexual violence committed in the context of the 2007-08 post-election

17

committing

SGBV

during the time of war. It builds on

Victims of SGBV have

for

the jurisprudence pioneered in ad

hoc international tribunals such as
those for Rwanda and the former
Yugoslavia,
criminal

which
sanctions

established
for

employing rape during

people
conflict

situations. This was also the first time

in the history of international criminal
law that sexual violence against men
has been defined in law.
Responsibility of Commanders to
Discipline their Forces
Article 25 of the Rome Statute
provides that a person shall be
criminally responsible and liable for
punishment for a crime within the
jurisdiction of the Court if that person

including

providing

he

should

subsequently
The

receive.

Judges

announce
judgement

the
will

Bemba as commander could have

postponed

military

operations;

suspended, excluded, or redeployed

violent subordinates; and conducted
military operations in such a way as
to lower the risk of specific crimes
or to remove opportunities for their
commission.

It is important to continue to support

the pursuit of gender justice at the
ICC to ensure that the Rome Statute
is used to bring perpetrators of SGBV
to justice and deter future crimes. A
comprehensive reparations decision
that supports the survivors of sexual
violence in the CAR in their efforts

What Next for the ICC and Victims

to rebuild lives and to end gender

of SGBV?

inequality in their communities is

Bemba is yet to be sentenced. A

also welcome.

sentencing hearing will likely be held

where the defense, prosecution,
and

victims

lawyers

will

make

18

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THE JURIST MAGAZINE

CSO CONFERENCE

Mr. Samwel Mohochi, ICJ Kenya Executive Director

addressing conference participants, seated is the KIbra MP
Hon. Ken Okoth

ON THE LEGAL AID REGIME

By Fred Kipkoech

Fred Kipkoech is the Monitoring and

Evalutaion Officer at ICJ Kenya

these strategies of mainstreaming pro-poor approaches

Working Groups on behalf of CSO actors convened

in conducting Legal Aid Act, alternative dispute resolution;

a one day Conference for Civil Society Organizations

monitoring and responding to human rights abuses;

(CSOs) on the Legal Aid Act 2016 on 3rd of May 2016

spearheading social accountability initiatives; and also

with the goal of promoting an understanding of the

advocating for the marginalized and weak within their

localities.

the law. The CSO Conference brought together about

50 CSO representatives, drawn largely from Legal
Service Providers and CSO Practitioners to discuss the
provisions of the Legal Aid Act 2016 and explore ways
for pushing for its urgent implementation.

The process and prelude to the enactment of the Legal

Aid legislation can be traced to the proposed Draft Legal
Aid Bill, 2010. The National Legal Aid and Awareness
Programme under the Ministry of Justice, National
Cohesion and Constitutional Affairs commissioned the

CSOs providing legal aid services work with and for

development of a policy on Legal Aid and Awareness.

the benefit of the indigent in society. In this regard, the

The Policys objective was to provide an efficient,

strategies that these CSOs employ in the execution

accessible, responsive and sustainable national legal aid

of their mandate, as well as the identification and

and awareness programme.

selection of partners and beneficiaries, actively assess

the impact that interventions are likely to have on the
poor, the marginalised and other minorities. Part of

19

were

National

the light of dawn, we remain alive

promote, provide and guarantee

Assembly. The CSOs also marshalled

to the challenges that may impact

equal

support for the Bill from Members of

its successful implementation. This

Parliament, especially the KEPHRA.

CSO

and

equitable

access

to

justice for all irrespective of gender,

CJ Kenya and the Prisons and Police Reforms

new law and also to discuss the implementation of

The Broad goal of the Policy was to:

accepted

by

the

age, religion and political affiliation,

mental

or

physical

disability;

eliminate systematic and systemic

marginalization of the vulnerable,
marginalized and poor persons in
respect to access to legal services.

Conference

presented

the

opportunity to debrief on the process

KEPHRA supported the push for
urgent enactment of the Legal Aid Bill
2016. The MPs present in the House
when the Bill was being debated
strenuously defended the Bill and
ensured that progressive sections

and prelude to the enactment of the

Legal Aid Act with a view of assessing
the inclusion or exclusion of good
or bad provisions, respectively, and
how to react to them. Secondly, the
Conference

promoted

deeper

understanding of the Legal Aid Act

The policy informed the creation of

that broadened the scope of access

a Draft Legal Aid Bill. The National

to justice were not lost. The MPs

Legal Aid (and Awareness) Steering

also coordinated civil society efforts

Committee in partnership with the

in ensuring that concerns from

CSO partners facilitated broad and

Members who wanted clarification

The

in-depth review of the proposed

on some provisions of the Bill were

with

Draft Legal Aid Bill, 2010. The Bill

addressed. This improved the overall

implementation

evolved over time and eventually

support and content for the Bill

the Legal Aid Act. The new law was

the Legal Aid Bill 2015 was tabled

culminating into its passage.

passed without guidelines on its

in Parliament, debated and passed.

CSOs played a pivotal role in reviewing
the Legal Aid Bill 2015 and submitting
a raft proposed amendments which

2016 through the lenses of legal

service providers.
Conference
a

strategy

implementation.
While the CSOs expressed relief that
the Legal Aid Act 2016 has finally seen

came
for

Guidelines

It

is

up

developing
for

imperative

to begin in earnest the discussion

on developing the Guidelines to
operationalize the new law.

20

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It is therefore a great achievement

Public Procurement Administrative

to the nation that the Kenyan

Review Board & Another [2012] e KLR

Parliament, after a long struggle

and only natural persons as seen

where ICJ Kenya played a very key

in the case of Nairobi Law Monthly

leading role, passed the Access to

Company Limited V Kenya Electricity

Information Bill 2015 on.

Generating Company & 2 Others

[2013] e KLR, where court held such

The right to access information aims

right can only be enjoyed by a natural

to grant the public the freedom to

person.

access data held by state agencies or

any other persons or organisations to

Article 24 recognizes that any right

facilitate the protection or realisation

or fundamental freedom in the Bill

of other human rights.

of rights may be limited but the

limitation must be reasonable and

Freedom

and

justifiable in an open and democratic

access to information are used

of

information

society based on human dignity,

interchangeably

the

equality and freedom. The limitation

same thing. The constitution is the

but

mean

must be through legislation and shall

foundation of all the rights in Kenya.

not limit the right or fundamental

Access to information is provided

freedom so far as to derogate from

under Article 35 and states as follows

its core or essential content. The

: (1) Every citizen has the right of

burden of proof lies on the person

access to;(a) Information held by the

seeking to justify the limitation.

State; and (b) Information held by

Access to information

Bill 2015 finally passed by Parliament

By Moses Okinyi
The State is obliged
by Article 35(3) of the
Constitution to publish
and publicize any
important information
affecting the nation....
The Constitution does
not provide what
important information
is.

21

another person and required for the

The State is obliged by Article 35(3)

exercise or protection of any right

of the Constitution to publish and

or fundamental freedom. (2) Every

publicize any important information

person has the right to the correction

affecting the nation. The Constitution

or deletion of untrue or misleading

does not provide what important

information that affects the person.

information is. This calls for legislation

(3) The State shall publish and

or policies and guidelines to provide

publicize any important information

for what important information is.

affecting the nation.

Publication and making information

public by the State will be one of the

The implication of Article 35(1) is

ways that will promote and give effect

that a citizen does not have to give

to the right of access to information.

reasons for seeking information from

Citizens will generally seek from the

the State. In case where he seeks

State information that the State has

he right to access public information refers to the right any person has to look

information from a private entity

not published or publicized.

for, request, and receive information held by the government. Technological

or another person and the request

advancements in the information sector has today made it possible for people

is denied and files suit in court to

The net effect of these provision

everywhere to access and share knowledge at the click of a button yet many

compel the person to provide him

therefore requires the commissions

governments are still not willing to make access to information easy. This right to access

with the information he has the

and independent offices to publish

information is a fundamental right belonging to every citizen and provides them the

onus of showing that the information

information

knowledge base for making informed choices. It promotes democratic governance

sought is required for the exercise

where

by empowering the citizens to ensure that the government is open, transparent and

or protection of a particular right or

information from these State bodies

accountable to them.

fundamental freedom.

without having to request for the

It should be noted this right only

information, and at a minimal or no

It helps facilitate the enjoyment of other fundamental rights such as the right to freedom

applies to citizens as interpreted by

cost. This promotes the protection

of expression, freedom of opinion, the right to public participation and the right to free

the Kenyan courts. This was seen

and

and fair elections, among others.

in the case of Famy Care Limited vs.

information.

Moses Okinyi is the Communication

Officer at ICJ Kenya.

on

their

citizens

realization

operations

can

of

access

freedom

of

22

THE JURIST MAGAZINE

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Article 35 is also given effect by other

can impact the environment and

live their daily lives, and contributes

transparency,

Constitutional provisions such as

individual lives. Access to information

significantly to access education,

fight

corruption,

provisions requiring constitutional

also allows the public to participate

employment and health, as well

new

technologies

strengthen

In Kenya Society for the Mentally

1776 while Mozambique is latest

offices

in criticizing and thereby improving

as access to basic amenities and

governance. Efforts of government

Handicapped (KSMH) vs. the AG, the

having passed the law in 2014.

to publish annual reports to the

governmental

decision-making,

services, such as water, housing and

to

engagement

court held that coercive orders of

Kenyan people on their operations.

which ultimately can help to prevent

electricity through ensuring citizens

through initiatives like the open

the court should only be used to

Example of countries with the most

On

information,

harmful activities which can cause

can hold government to account.

data portal and open government

enforce Article 35 where a request

progressive laws on the right to

the National Land Commission, for

significant damage to the health of

partnership are commendable and

has been made to the state or its

information include: India, South

example, will publish environmental

people and the environment.

should be strengthened. On the

agency and such request denied.

Africa, Sweden and Mexico.

or

and

independent

environmental

environmental

offices

related

Actors
and

in

Kenyas

democracy

development

agendas

have

promote

empower
and
to

citizen

citizens,

damages for the petitioner.

harness

Sweden was the first country to pass

the freedom of information law in

downside though, the open data

These interpretations are contrary

information thereby giving effect to

The passage of the Access to

acknowledged

of

portal is not regularly updated mostly

to the internationally established

The following are countries in Africa

the Kenyan citizens right of access to

Information Bill 2015 will therefore,

right to information in advancing

due to reluctance and stubbornness

principle of maximum disclosure,

with Freedom of information laws

environmental information.

if well implemented, lead to more

these processes. Initiatives aimed at

of public government agencies to

which establishes the obligation of

are:- Angola, Ivory Coast, Ethiopia,

transparency. In a democracy it is

enhancing open government have

disclose and make this information

public bodies to disclose information

Guinea,

A history of legal and institutionalized

essential that people can access

used right to information principles

available.

and the corresponding right of every

Nigeria, Rwanda, Sierra Leone, South

secrecy of government operations

a wide range of information in

to

member of the public to receive this

Africa, Tunisia, Uganda, Mozambique,

has created an environment in

order to participate in a meaningful

accountability in government.

information. This principle further

South Sudan and Zimbabwe.

which the right to information has

way in matters that affect them. It

The judiciary has also recognized

stipulates that everyone present

historically been devalued, allowing

entrenches the principle that public

These include the Kenya Open

the import of right to information

in the territory of a country should

corruption and other state excesses

servants act on behalf of the public

Data Initiative (KODI) and the Open

but has also not been expansive

benefit from this right.

to thrive. The Anglo Leasing scandal

when carrying out their functions

Governance

(OGP),

with its interpretations of Article 35.

of the early 2000s demonstrated the

and must remain accountable for

which make key government data

In Peter M. Kariuki vs. AG the court

Once the President accents to the

importance of right to information

their actions.

freely available to the public through

acknowledged the importance of

Access to Information Bill 2015,

a single online portal and comprise

the right in determining appropriate

Kenya will join the one hundred

in

preventing

corruption

as

it

promote

the

necessity

transparency

Partnership

and

involved diminished oversight for the

This law is also essential to combat

procurement of police equipment

corruption on the continent and has

information laws fifteen of which are

because it had been classified as

a significant impact on how citizens

African countries.

a country action plan to promote

Liberia,

Namibia,

Niger,

countries that now have freedom on

for security purposes. National

security purposes have also been
used to justify other state excesses,
such as to curtail civil liberties and
media freedoms as witnessed in the
police summoning of two journalists
over their coverage of the Westgate
terror attack in September, 2013.
Access to information held by the
state can be seen as a fundamental
right of the individual and a crucial
component

of

democracy.

It

allows the public to be aware of

governmental

23

decisions

which

24

THE JURIST MAGAZINE

THE JURIST MAGAZINE

Majority of the PEV survivors

human rights violations and other

suffered various forms of SGBV

historical injustices in Kenya between

while others experienced other

12 December 1963 and 28 February

forms of physical harm. The 2013

2008 handed over its report to the

petition does not seek to send anyone

President in May 2013.

to jail but to hold the government

accountable

for

The survivors called for the adoption

violence,

of the report which has been sitting

protect the survivors from sexual

in parliament since August 2013.

violence, investigate and prosecute

The report presents a system for

perpetrators, and provide effective

addressing the needs of victims by

remedies. The victims gave evidence

establishing a reparations framework.

failing

to

and

responsible

prevent

the

on the 14th and 15th of April. Two

witnesses, a nurse and a social worker

The case was filed as a response to

from

Hospital

the lack of serious action on the part

testified before High Court Judge

Kenyatta

National

of the government to investigate

Isaac Lenaola. Both witnesses told

sexual violations that occurred during

the court that SGBV victims remain

the PEV, refusal to acknowledge

traumatized to date and are in need

victims,

of immediate medical intervention

medical and psychological treatment

from the physical and psychological

that many survivors urgently require.

trauma they went through.

The survivors recalled that attempts

and

failure

to

provide

by the Chief Prosecutor at the

Truth, Justice AND dignity

Elusive justice for victims of post-election violence
By Nelly Warega
Almost 10 years
down the line, the
government of
Kenya has failed to
hold accountable
anyone at a midlevel or high-level
of responsibility for
crimes committed
during the PEV...

larice Akinyi, a survivor of Sexual and Gender Based Violence (SGBV) during Post Election
Violence (PEV) in Kenya issued a statement on behalf of other 2007-08 survivors on

It is the case of the petitioners that

International Criminal Court (ICC)

these failures amount to violations

to charge sexual violence crimes in

of fundamental rights and freedoms

Kibera and Naivasha did not get past

guranteed

the Pre-Trial stage.

in

the

Constitution.

The survivors want the state to

acknowledge

that

they

Nelly Warega is a Programme Officer

under the International Justice
Programme at ICJ Kenya.

suffered,

Despite pledges to reinvestigate these

begin credible investigations and

crimes, not much has been witnessed.

prosecutions, provide reparations

The absence of prosecutions does not

including medical and psychological

The Trial chamber dismissed the case

negate the truth of what we know.

treatment, legal and social services,

citing massive witness interference

Sexual violence happened to us in

and compensation, and reform the

and political meddling. The discharge

our homes, in transit, in camps for

responsible institutions and change

of charges against Ruto and Sang is

the displaced, and in every space in

the relevant policies so that no one

a huge disappointment for victims

Kenya. Said Mrs. Akinyi, one of the

else undergoes the suffering they

of PEV who have been hoping the

survivors.

court will deliver a conviction and

endured ever again.

consequently

award

reparations

The statement was issued a few

Almost 10 years down the line, the

to all victims. With the collapse of

days after the International Criminal

government of Kenya has failed to

this case, despite the possibility of

Court (ICC) terminated the case

hold accountable anyone at a mid-

an appeal by the prosecution, PEV

the constitutional court Constitutional Petition no. 122 of 2013.

against William Samoei Ruto and

level or high-level of responsibility

victims have placed all their faith in

Joshua Arap Sang. Ruto and Sang

for crimes committed during the

the Kenyan courts hoping that their

Six (6) female and two (2) male survivors filed this case in February 2013 with the support of

had been accused of being criminally

PEV. No medical or psychological

right to reparations will finally be

responsible for committing crimes

treatment has been offered to sexual

addressed before it is too late.

against

violence

the 13th April 2016. The statement was made in solidarity with eight (8) survivors who
were brutally gang-raped and forcibly circumcised by state security officers and civilians

during the PEV, as they sought truth, justice and reparations from the state in a petition filed in

several organizations including the Coalition on Violence against Women (COVAW), the Kenyan
Section of the International Commission of Jurists (ICJ Kenya), the Independent Medico-Legal Unit
(IMLU), and Physicians for Human Rights (PHRI).

survivors

of

murder,

them

deportation or forcible transfer of

desperate for any form of reparations

The next hearing of the case is

population and persecution in the

available to them. The Truth Justice

scheduled for 23rd May 2016.

context of the 2007-08 electoral

and

violence in Kenya.

Reconciliation

leaving

humanity

Commission

which was established by an Act of

Parliament to investigate the gross

25

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THE JURIST MAGAZINE

THE JURIST MAGAZINE

CASE HIGHLIGHT
By Silas Kamanza

Nairobi Law Monthly Company Limited Vs Kenya Electricity Generating

Company And 2 Others (2013) Eklr

Disposal Act (No. 3 of 2005) and Regulation 3 of the Public Procurement

and Disposal Regulations (2006) which refer to State corporations as
public entities due to the contolling interest of the State in its operations
and affairs;

State officers, public officers and all persons;

officers, performing a function within a State organ.

and provision to the public of timely, accurate information.

Whilst Section 20 of the Kenya Revenue Authority Act (Cap 496) exempts
KRA from the provisions of the State Corporations Act, this does not

contracts to 6 companies to drill hydrothermal wells. KenGen denied the allegations and filed

remove it, as a statutory body, from the ambit of the Constitution and its

a defamation suit against the petitioner. Consequently, in defence, the petititoner wrote to

provisions with regard to the right of access to information by citizens.

KenGen demanding information on the ensuing matters. The petitioner moved court, based on
Articles 2, 10, 33, 34 and 35, compeling KenGen to diclose information relating to the matters

KenGen is bound by Article 232 of the Constitution which provides the

principles and values of public service, one of these being transparency

Attorney General. As a publisher of the Nairobi Law Monthly magazine, the petitioner had
the then KENGEN Managing Director Mr Edward Njoroge for irregularly and illegaly awarding

KenGen is bound by provisions of Article 260 of the Constitution defines

the public service as the collectivity of the individuals, other than State

against a Kenyan state parastatal, Kenya Electricity Generating Company (KenGen) and the
investigated and published a series of corrupt dealings in the parastatal which implicated

KENGEN is bound by Article 10 of the Constitution, which contains the

national values and principles of governance and binds: all State organs,

Facts of the Case

The case was brought by way of petition filed by the Nairobi Law Monthly Company Limited

KenGen is subject to the provisions of the Public Procurement and

Although, KenGen had not violated the petitioners rights under Article 35

after KenGen refusal to comply. Notably, the International Commission of Jurists - Kenya and

(1) (b) of the Constitution which provides that: Every citizen has the right of

Kenya Revenue Authority (KRA) joined the suit as an interested parties whilst Transparency

access to- ... (b) information held by another person and required for the

International and Article 19 joined as Amicus Curiae.

exercise or protection of any fundamental right or freedom:

Issues for Determination

claimed, but also that the information sought is required for the exercise
or protection of another right.

Nairobi Law Monthlys position that KenGen had violated its rights under
Articles 33 and 34 of the Constitution by failing or refusing to provide it

Articles 33, 34, and 35 underpinning the freedom and independence of electronic, print

with the information that it sought so as to publish more articles in its

and all other types of media and as well as the right of access to information,

A citizen claiming a right to access information under this sub-article must

not only show that the information is held by the person from whom it is

1. Whether KENGEN violated Nairobi Law Monthlys Constitutional rights as

envisaged under:

magazine about alleged corrupt dealings within KenGen implied not only

Article 2 which holds the Constitution as the supreme law of the land, therefore binding

the negative obligation by a party not to interfere with the medias exercise

every person and state organs at all levels of government,

of freedoms in terms of Articles 33 and 34 of the Constitution but also,

incorrectly, a positive obligation by everyone to give the media whatever

Article 10 of the Constitution which sets out the national values and principles of governance,

information it sought to enable it to publish stories and information.

and provides that these national values and principles bind all State organs, State officers,
public officers and all persons.

Silas Ngalaa Kamanza is a law pupil

information designer at ICJ Kenya.

The intention in Article 35 (1) of the Constitution was clearly to create two
distinct situations with regard to the right of access to information: one in
which the citizen was entitled as of right to information held by the State;

Determination

the other in which a citizen could access information from another, a

private person, for the exercise or promotion of another right or freedom.

That KenGen, the then KenGen Managing Director Mr Edward Njoroge and KRA had
an obligation to provide information to citizens as required under Article 35 (1) (a) of
the Constitution:

KenGen and KRA are state parastatals and therefore part of the State as stated under
Article 260 of the Constitution; KenGens 70 per cent of its shareholding is state owned. It
is therefore State corporation within the meaning of Section 2 of the State Corporations
Act (Cap 466);

27

While the importance of media entities in promoting transparency,

accountability and good governance in a free and democratic State could
not be over-emphasised, a balance ought to be met with the rights of
others. This could not be done where the media asserted, as of right, an
entitlement to information from another person other than the State
or State entities as a prerequisite for exercise of freedom of expression
and freedom of the media under Articles 33 and 34 of the Constitution.

28

THE JURIST MAGAZINE

THE JURIST MAGAZINE

The petitioner could therefore not allege that it required information from the
respondents under Article 35 (1) (b )for the protection of its rights under Articles 33
and 34 of the Constitution.

The Definition of Citizen under the Article 35 (1) of the Constitution limited to
natural born citizen:

Whilst agreeing witht the decision in the case of Famy Care Limited vs- Public
Procurement Administrative Review Board & Another High Court Petition No. 43 of
2012, Justice Mumbi Ngugi stated that a body corporate or company is not a citizen
for purposes of Article 35 (1) and is therefore not entitled to seek enforcement of the
right to information as provided in that sub-article.

References

Nairobi Law Monthly Company Limited Vs Kenya Electricity Generating Company and
2 Others (2013) Eklr.

29

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