Africa has potential but...

Yesterday i took time to watch my first worldcup full-match at 9:30pm, Nigeria v Korea Republic, hoping that this time i would not doze off. I am a fan of 'classic' footbal no matter the team playing. However footbal analysists had informed me that Nigeria had a very good chance of progressing to the next stage. The oga brothers started well, Korea looked week. Infact Nigeria scored but i enjoyed the resilience of the Koreans, they were very consistent.

During the second half, the teams were level at 2-2, Nigeria had to win. The Koreans would proceed with a draw but were still attacking. My oga brothers were doing well, creating the so called 'chances'. Then Yakubu missed a goal that he was surely ashamed off, that was not all Obafemi Martins missed another. It was very frustrating.

I am not a footbal comentator but the game revealed the true nature of the African continent. Wasted opportunities, misplaced priorities, untapped potential unitilized resources the list is endless. I have no doubt that Africa is no different from western countries, but we have to get our act together.

The evils of corruption, tribalism, nepotism, ignorance, poor governance, violation of human rights, civil wars and illeteracy are our undoing. As a continent we need to take responsibility and deal with them.

We can do just about anything the developed world has achieved, and better. However to progress to the next stage unlike in the Nigeria v Korea match, we must seize the opportunities and make a difference. In doing so the principles of Human dignity, rule of law, democracy and upholding human rights must be the foundation

Go Africa!

Fundamental Rights and Freedoms: Article 26 – 57 of the Proposed Constitution
The current debate on the proposed constitution has put the Bill of Rights in sharp focus by well-intentioned and ill-intentioned individuals. Let us take time to analyse its provision with a clarion call for proper reading of the draft.

Right to life; Right to human dignity; Right to privacy; Right to access information; Right to assemble, demonstrate, picket and petition; Political rights; Right to property; Labour rights; Right to a clean and healthy environment; Right to use the language and cultural life of one’s choice; Family and marriage rights; Consumer rights; Right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action; Right to access Justice; Rights of arrested persons; Right to a fair hearing; Rights of persons detained, held in custody or imprisoned.

Social and Economic Rights
Right to highest attainable standard of health; Right to accessible and adequate housing and reasonable standard of sanitation; Right to be free from hunger and adequate food; Right to clean and safe water; Right to social security; Right to education

Equality and freedom from discrimination; Freedom and security of the person; Freedom from slavery, servitude and forced labour; Freedom of conscience, religion, belief and opinion; Freedom of expression; Freedom of the media; Freedom of movement and residence;

Rights of special groups
Rights of Children; Rights of persons with disabilities; Rights of the Youth; Rights of Minority and Marginalized groups and Rights of older members of society. Read together with Interpretation clause - Article 260

Source: The Proposed Constitution of Kenya (Published by the A.G on 6th May 2010 in accordance with section 34 of the Constitution of Kenya Review Act [No. 9 of 2008])

This analysis should provoke you as a responsible Kenyan to read the draft constitution to know the exact content of the rights and freedoms.

Enforcement of Fundamental Rights and Freedoms in the Proposed Constitution
One area of reform that legal practitioners have proposed is in regard to Judicial Enforcement of Fundamental rights and Freedoms. They have generated reforms after interacting with the current constitution premised on Section 84 of the Constitution. The major handicaps revolve around four thematic areas

• Question of standing – who can bring a case in court to enforce fundamental rights and freedoms

• Question of jurisdiction of the High Court to enforce Fundamental Rights and Freedoms and the administrative Constitutional Division of the High Court.

• Question of enforcement when then the Chief Justice has not published Rules on enforcement.

• Enforcement of remedies after successful cases.

The Proposed Constitution has adequately addressed these historical concerns. The foundation (in my reading of the draft) nothing should stand in the way of Kenyans who seek to enforce their constitutional rights. Recall that rights are inherent and are not granted by the state, we are born equal, and wonderfully in the image of God I dare add. Rights are to be enjoyed at all times without restriction or discrimination. The enforcement mechanism is straight forward and will lead to greater enjoyment of rights.

Let us now examine how the draft proposes to address the above concerns.

Who can enforce rights and freedoms?
In other words who can go to court and complain, thus seek assistance (remedies), that a right or freedom has been or is under threat of violation? Every person whose right has been denied, violated or infringed, or is threatened can go to court, Article 22(1). In addition, Article 22 (2) sets out other persons or association that can institute proceedings.

In which court do you enforce the rights and freedoms?
The High Court – Articles 23(1) and 165(3) (c). Article 23(2) provides that parliament shall enact law to give subordinate (lower) courts original power to hear such cases. This will reduce the back log of cases at the High Court and ensure cases are heard within a short period.

Absence of rules to enforce fundamental rights and freedoms
The Chief Justice shall make rules under Article 22(3) of the proposed Constitution. The criteria for the rules is set out which includes the requirement that no fees is charged for taking such a case to court. Article 22(4) states that the lack of rules does not limit anyone from going to court. This is because in the past the Chief Justice had refused to make the rules with the intention of denying Kenyans the right to go to court.

Remedies
Article 23 (3) sets out the remedies that the court may give.

Be informed.

Tolerance: what we mean.

The debate on tolerance and consensus has animated the current civic debate on the proposed constitution. As i dug into my academic archives, i came across an article by Prof Lutz Simon entitled Faith and the dilema between tolerance and arbitrariness in society and politics. Prof Simon presented the paper as in Germany as Njeri Kabeberi was awarded the inaugural "Prize for outstanding commitment to law and justice", in Germany.

There are several lessons we can share from the article on tolerance. He begins on the basis that faith in God is absolute but the excercise of one's faith should not promote an intolerant attitude towards those of a different faith or opinion. This foundation is true for the believer and non-believer.

Tolerance means getting to know the other person's religious persuation, accepting it but that without examining one's own faith in a way as to call into question such faith or some of its essential elements.

Tolerance nevertheless must not advocate arbitrariness on part of the individual. It must not make one's faith a puppet of political, ethical, social or cultural interests estranged from faith. Prof Simon concludes by emphasizing that it is indeed possible to live as a multi-religious society.

Tolerance calls for acceptance not assimilation. Critical point to note is that in demanding tolerance one must excercise it. This is critical to the point made before, that rights and responsibilities go hand in hand. Rights cannot be claimed in ignorance of the duties required by law, of the state and individuals to give full effect to those rights.

Tolerance is required for peace, love and unity in a democratic and free Kenya.

African Female Lawyers required by the ICC

International Criminal Court is undertaking a campaign to recriut more female lawyers from Africa. The lawyers will have the rare opportunity to respresent victims and defendants at the court. It is a worthwhile opportunity to practice International Criminal Law and contribute to the pursuit of international justice.

For details visit:
http://www.femalecounsel.icc-cpi.info

Thanks.

Address by the UN High Commissioner for Human Rights.

The United Nations High Commissioner for Human Rights, Navanethem Pillay, delivered an address on Developing Trust through Respect for Human Rights yesterday. The Commissioner discussed the following issues.

1. Constitutional reform as a stepping stone for attainment of freedom, justice and social well being.
2. Comprehensive police reforms.
3. The ICC investigations based on the 'most responsible' policy, with emphasis for an independent, credible and efficient national judicial mechanism to try 'minor offenders' / 'foot soldiers'.
4. Support for the Truth Justice and Reconciliation Commission (TJRC) to foster communal reconciliation and restore dignity of victims.
5. Crucial role of the Kenya National Commission on Human Rights to investigate, report, document and recommend prosecution for human rights violations.
6. Protecting witnesses of crimes, activists and human rights defenders.
7. Support for the African Commission's ruling on the Endorois.

Read full text on:
www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10122&LangID=e

However my concern is that the government is not taking the above concerns seriously, the reform pace is too slow. Visitors come and go and the situation does not change. Notwithstanding the constitution other crucial amendments are on 'slow mode'. We can do better, i believe we can. That is why Maneno H.R exists.

Respect for Human Rights, the way to a united nation

Advent of 'Haki Yetu' Era in Kenya: Rights with responsibility

Since the 2007 elections in Kenya, and the violence that followed, the phrase 'haki yetu' has gained wide acceptance and application. Nevertheless it is coupled with misuse when rights are claimed yet they do not exist. I find it weird that even children will shout 'haki yao' when they have no idea about the rights purportedly claimed.

In Human rights, discourse there exists rights holders and duty bearers. The state takes primary responsibility in promoting and protecting fundamental rights and freedoms, citizens have their part - claim rights with manners. Section 70 of the Kenyan Constitution and Articles 27 to 29 of the African Charter on Human and Peoples' Rights, are clear on the duties of citizens. In principle citizens must respect the rights of other human being and promote tolerance.

I don't buy the framework of 'haki yetu' in its present form. That is why Kenyans will burn vehicles, kill neighbours, steal, and mutilate infrastructure all in the name of rights. It is not a surprise that the University of Nairobi is still closed for undergraduate students. That is why we will 'demonise' the government on corruption yet we are TKK people all the way without a coma, from our door steps.

While i verily believe in fundamental rights and freedoms, lets not blow things out of proportion. In the non-violence movement of Mahatma Gandhi, the principle was to respect all just laws and only disrespect unjust, draconian and discriminatory laws. If we uphold the rights of others, the government will respect our collective rights. Citizens lets all be warned, we have a duty.

Spread the word, Cheers.

ICC Review Conference in Kampala: Is Kenya Serious

Last week's events at the ICC review conference in Kampala puts in serious doubt the government's commitment in ensuring that perpetrators of Post-election violence are put to account. But i believe that the presence of two opposing parties in government-PNU and ODM is serving as a check on any attempts to delail the process. We hope that justice will suffice for victims.

The efforts to boost the ICC Trust Fund are progressive, for victims compensation.

Marginalised communities in the Draft Constitution 2010

Marginalised communities have faced gross violation of their individual and group rights coupled with marginalisation in governance and representation. The much publicised and adjudicated plight of the Endorois and Ilchamus/Njemps communities is a critical indicator. The Endorois who after exhausting local remedies in our national courts proceeded to the African Commission on Human and People's Rights, atleast secured a favourable and landmark judgement.

The proposed constitution published by the Attorney General on 6.05.2010 recognioses the unique circumstances of marginalised communities and guarantees their rights. To begin with, the term 'Marginalised Community' is well defined in Article 260. The preamble recognises the fact of our ethnic, cultural and ethnic diversity. In vesting all sovereign power on the people of Kenya in Article 1, it should be read to include Marginalised communities.

Article 10 recognises the protection of marginalised communities as one of the national values that Kenyans hold dear as the guiding light to our coexistence. Article 11 recognises culture as Kenya's foundation and imposes a duty on the state to promote all forms of national and cultural expressions. The article should be read together with Article 44 on on the right to lunguage and culture. Article 11(3) also provides that parliament shall enact legislation to ensure communities receive royalties for the use of their culture. According to Article 261(1) and the Fifth Schedule, parliament must do so within five years.

Article 19(2) provides that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of communities and promotion of social justice. Article 21(3) imposes a duty on state organs and public officials to address the needs of, among others, members of minority or marginalised communities and members of ethnic, religious and cultural communities.

On substantive rights, members of marginalised communities are entitle to all rights under the bill of rights, Articles 26 to 57, in the same manner and style as other kenyan citizens. However Article 56 addresses the rights of minorities and marginalised groups. The state shall put in place measures to ensure that such groups participate in governance, enjoy educational and economic life and access employment opportunities. In addittion Article 56 provides for the development of cultural practices, and ensure the provision of water, health services and infrastructure for these communities.

Chapter five on Land and Environment expressly recognises community land in Articles 61 and 63. Chapter eleven on devolved government will ensure that county governments allow communities to enjoy and manage their affairs and chart their development agenda without reliance on the central/national government. The shared functions for County governments under the Fourth Schedule will ensure that the pressing concerns for marginalised communities.

The proposed constitution is a major stride for marginalised communities in Kenya and a model for the African region.

Stephen Wandeto
Human Rights Lawyer and Student at the Kenya School of Law

Proposed Constitution of Kenya 2010

The Attorney General of Kenya Published the Proposed Constitution of Kenya on May 6 2010. The people will vote on the draft in a referendum on August 4 2010. Since publication, the draft has beed surrounded by numerous facts, myths, roumours and controversies. Maneno Human Rights urges kenyans to read the draft and seek basic explanations fron legal experts.

Stephen Wandeto

Rights of Indigenous communities in Kenya: the strugle continues.

The African Commission on Human and Peoples Rights (ACHPR)delivered a judgement in favour of the Endorois community against Kenya. This came after a decade of advocacy both at the national and international level. Indigenous communities are at a vulnerable position compared to other sections of society. In Kenya such communities include the Borana, Endorois, Elmolo, Gabra, Ilchamus, Maasai,Pokot, Rendille, Samburu, Sengwer, Turkana and Watta. Indigenous Communities are exhibit the following characteristics in varying degrees:
1. Close attachment to ancestral land for economic, cultural and religious practices.
2. Customary and social institutions.
3. Indigenous lunguage.
4. Self-identification as a distinct cultural group.
5. Traditional knowledge and resources.

It is critical that the state,human rights organisations, members of other indigenous communities in Kenya and Africa and friends of marginalised communities work together to implement the ACHPRs recommendations.


Stephen Wandeto