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Keeping Warm During the “Cold” Rainy Season

By Yulia Yugay

Contrary to popular belief, I did not roast under the Kenyan sun for three months. In fact, we caught the second half of the rainy season and stayed in Kenya during the coldest months of the year. In July, the temperature can go as low as 15 degrees; it is at this time that people take their warm leather or down jackets out, wear long thick scarves and hats. In other words, when Nicole and I went outside wearing a blazer or a light sweater, Kenyans thought we were the most warm-blooded people that have lived on this earth. Unsurprisingly, when they found out about average winter temperatures in Canada, they could not believe their ears.

In Meru Law courts with a public prosecutor and Nicole

These differences in perspectives were obviously not limited to climatic issues, which is why my experience in Kenya makes up a full spectrum of emotions. One of the most shocking, yet unsurprising, things we’ve witnessed is the treatment we received, as wazungu (white people) during official events, from government officials and people on the streets. When visiting police stations while trying to find out the status of a case, going to the office of the Director of Public Prosecutions to follow up on the progress of an appeal, or when asking for help from court staff, we were offered a seat in the waiting room, directed to the right person or given an answer. While this sounds totally ordinary, our Kenyan colleague said that he felt like he was in a different country. Later we were told that this was due to the fact that everyone thought we were “important” people who are coming to check on their work.

Another instance where we got preferential treatment because, once again, people thought we were “important” was at the celebration of the Day of the African Child. We were officially greeted, given water bottles, and seated right next to a highly ranked government official whose arrival (30 minutes late) required the interruption of the entire parade. This time, we received special treatment because it was very likely that we were some of the donors who sponsored the event. While this treatment can be understood, it also showcases a frustrating reality: an experienced university graduate working in a Kenyan NGO with issues as important as defilement cannot always do their work as efficiently or to the same extent as two foreign students who do not even speak decent Swahili.

Justice Clubs launch event at Ncuui Primary School

With that said, there was an overwhelming amount of wonderful people, customs and precious moments that kept us warm in fifteen degree weather and in spite of the different surprises on the way.

One of the highlights of my internship were the school visits we paid within the framework of the Justice Clubs initiative. The objective of the Justice Clubs is to educate a group of primary school students about human and children’s rights, the 160 Girls decision, and the issue of defilement more broadly. Selected students learn the curriculum through specifically designed workshops and activities and then pass the message on to the rest of the school and members of community during launch events and closing community shows. Having visited and selected the schools and trained the teachers (Justice Club patrons), it was extremely comforting to see the effort, dedication and enthusiasm that both the school administration and students had invested into organizing, preparing for and performing at the launch events. The level of student engagement and parent participation instills hope that the Justice Clubs initiative contributes to women’s and girls’ empowerment and brings us one step closer to the longterm, systemic change.

At the tea plantation with a group of strong and beautiful women

However, every moment spent with the girls at the Tumaini shelter was, without a doubt, the most memorable and heartwarming. Working with their individual cases, knowing their stories made my work very emotionally challenging. Nevertheless, all the time spent cooking, playing, reading, colouring books, and painting nails with the kids added the invaluable human component to the human rights work I did all summer. I cannot stress enough how loving, sincere and generous are these souls who, thankfully, haven’t forgotten how and what it means to be children

To conclude, I’d like to express my deepest gratitude for all the people I met over the course of my three months in Kenya who made up for the many cold and rainy days. I am grateful for the people who introduced me to and taught me to cook some of the best Kenyan dishes. I am grateful for the famous Kenyan tea with milk and sugar, religiously served every morning and afternoon, that I shared with my colleagues (this definitely helped me cope with the unbearably slow wifi or the lack thereof). I am grateful for the lady at the market who always greeted me with a warm smile and threw a couple more sweet potatoes or bananas in my bag. I am grateful for the women working at the tea plantation who welcomed me into their group and showed me how to pluck some of the best tea in Kenya. I am grateful for the friendships created not only with the people in the office, but also with their families. And finally, I am grateful for having been able to experience the sense of community that is so deeply rooted in Kenyan people.

Sunrise at the Maasai Mara National Reserve

Asante sana, my dear Kenya, and until next time.

Learning About Kenyan Challenges, Beauty, and the Very Relative Concept of Time

By Yulia Yugay

At the Maasai market in Nairobi

“Karibu Kenya!”, says our smiling taxi driver, as he welcomes Nicole, my co-intern from University of Toronto, and myself. We spend the night in the hot (for us, Canadians, who just got out of 6 long months of winter, but definitely not so hot for the locals) and humid Nairobi. The next morning, our driver Charles, who is an hour and forty minutes late (our first encounter with the notion of “African time”), picks us up, and drives us to Meru. On our way, we get a brief insight into Kenyan history, politics, economy and climate. We discover that we arrived right in time for the avocado season and learn about the infamous Kenyan nyama choma (roasted meat) for the first time. Within 5 hours, we drive past countless hills, maize fields, and banana trees. We cross through very dry and then rainy regions, follow along the Tana river (that, as I tell my mom to reassure her, did not flood the Meru region) and, of course, catch a glimpse of Mount Kenya.

Ripples International as an organization

As an intern at the equality effect, a Canadian NGO fighting for the rights of women and girls in Ghana, Kenya and Malawi, I have an opportunity to spend my summer working with one of its international partners in Meru, Kenya called Ripples International. The latter works with children through a number of platforms that include a primary school, a medical centre, an access to justice program, the New Start baby rescue centre and Tumaini rescue shelter that most of my work revolves around. 

Tumaini stands for “hope” in Swahili, which perfectly reflects what this shelter is to Kenyan children. Girls and boys aged between 3 and 18 who were and/or are at high risk of being victims of defilement (child rape), child labour, early marriage, and FGM are rescued and sheltered there. Most of the girls at the shelter were victims of defilement; many of them are (very) young mothers, who stay there with their babies. Spending time with these children is my favourite part of the internship so far. During every visit, I am amazed by their good heartedness, love for learning, sincerity, and joie de vivre. On the other hand, every time I discover their individual files that explain why these innocent children are rescued in the first place, my heart breaks anew.

On one of the visits to introduce the idea of Justice Clubs to primary schools

Court watch, police monitoring, home visits

In addition to sheltering and counselling, Ripples International takes on the monitoring of the girls’ treatment by the police and of their court cases. An important part of my work consists of preparing for, attending and accompanying girls to their court hearings. Moreover, we contact and visit police stations and the office of the Director of Public Prosecutions to follow up on cases, when things slow down and fall through the cracks.

Unfortunately, simply getting a defilement case to proceed in court is a challenge on its own. Firstly, the incident(s) has to be reported to the police, where it is recorded in the Occurrence Book and a P3 form (medical examination report) that has to be completed both by a police officer and a doctor/medical specialist is issued. The police has to take the witness statement of the victim, visit the crime scene (which is almost never the case due to either reluctance or logistical issues/inaccessibility of the place), collect evidence and/or admit the evidence provided by the victim, interview and take the statements of other witnesses, where applicable, and finally take the required steps to arrest the suspect and lay charges. This process is not extremely time consuming and complicated but each of the multiple steps is an opportunity for the police to ask for bribes and frustrate the victim’s access to justice.

Saturday morning with the girls at Tumaini Centre

Our internship takes place five years after the ground-breaking 160 Girls decision that previous interns had described at length had been rendered. In short, Ripples International, together with the 11 petitioners, won the constitutional challenge, as a result of which the High Court of Kenya found that police treatment of victims of defilement violated their constitutionally protected rights and “created a climate of impunity for defilement as perpetrators were let free”. Thus, the National Police Service was ordered in May 2013 to conduct “prompt, effective, proper and professional investigations”. Five years down the road, although significant improvements can be seen, the work that Ripples International and the equality effect do on police monitoring is far from being completed.

Secondly, even if the victim is past the first hurdle and the case does proceed in court, they face issues ranging from delays to absconded perpetrators and even corrupt magistrates. Because Ripples International admits girls from all over the country, I had the opportunity to attend several defilement cases before different regional courts. In my six first weeks in Kenya, about half of the hearings I attended were pushed to a further date because “the court is out on official duty”, the testifying Investigating Officer is caught in preparations for a national holiday, or the accused’s lawyer isn’t ready to proceed, to name a few. Even if witnesses fail to appear in court for no good reason, the most severe consequence they face is a 500 shilling fine (roughly equivalent to $5 USD).  Furthermore, in a significant number of cases, the matter is either withdrawn or abandoned because the perpetrator escaped and cannot be found (or the police are not looking for him).

At the launch of the Day of the African Child celebrations in Isiolo

Home visits are another insightful part of my internship; they are both eye opening and humbling. Being welcomed into homes of ordinary people, have them open up and tell us about one of the most desolating events in their family history makes riding 3 matatus (community cars) with at least 7 other people in it and a boda boda (motorbike) each way worthwhile.

All in all, while writing this blog post I’ve come to the conclusion that with all its issues and challenges on both individual and institutional levels, Ripples International offers a strong shoulder and great support to loving children and their families while they undergo the roughest and most challenging times. This support is particularly important in a system where things being done the way they should be is a tremendous achievement, and where the government and its organizations do not make access to justice for victims of defilement easy.

Meeting the Survivors Behind the Cases

2016 Dionne Desbiens Esther-1By Esther Dionne Desbiens

My internship with Equality Effect & Ripples International in Meru, Kenya was amazing. I cannot believe how fast it went by. Kenya gave me a very warm karibu (welcome in Swahili), and for that I am very thankful.

On a gloomy day this July (one of the coolest months in Kenya), a coworker told the staff at Ripples International to “carry [our] own weather”. I thought this expression was such a nice reminder to be positive. While people at Ripples International did encourage each other to be positive, I did encounter a cultural difference here. In Canada, people would say I’m outgoing and friendly. However, at Ripples International, some of my colleagues said that my personality was like that of a cartoon character. I didn’t know if this was an insult or a compliment, but my Kenyan friend and colleague reassured me that it was a compliment! My personality was not the only thing that made me stand out in rural Kenya. Being a muzungu (person of European descent) did not go unnoticed. I would often be greeted with the word muzungu when running errands or just walking around. After learning some Swahili, I was able to respond to those greetings with sasa (how are you) to which people answered poa (good). This response sparked conversations as the people I interacted with realized that I was willing to learn more about their language and culture. Knowing some Swahili meant that I was no longer a stranger to Kenya, it showed that I was there to learn.

Now on to my work experience. This has been the most hands-on, field work focused and interactive legal experience. So much of my work as a legal intern for Equality Effect at Ripples International revolved around meeting police officers, magistrates, survivors and their guardians in many different settings. This internship had so much fieldwork, I really felt as though I was able to fully immerse myself not only in Kenyan culture, but also in the Kenyan criminal justice system. For example, on July 21st, Ashley and I spent less than one hour at the office. We started off the day at 7:00 talking about our internship in Kenya on the radio in Isiolo, we then conducted a guardian interview at the office, we then participated in a women’s support group meeting, and finally we ended our day at 18:00 in town to conduct another guardian interview. Continuously meeting passionate people wanting to contribute to the 160 Girls Project aiming to protect children from sexual abuse was truly inspiring.

On the radio for the second time in Isiolo with Gerald (Access to Justice Program Manager), Denson (Radio Host) and Ashley (Equality Effect Intern).

On the radio for the second time in Isiolo with Gerald (Access to Justice Program Manager), Denson (Radio Host) and Ashley (Equality Effect Intern).

My colleague Ann, social worker at Ripples International, introducing Ripples International to a women’s support group.

My colleague Ann, social worker at Ripples International, introducing Ripples International to a women’s support group.

I often found that while studying law, there is a disconnect between the judgments we read and the people’s stories behind these judgments. Studying for my extra-contractual law exam in first year, I found myself trying to memorize the case Bazley v Curry as if it was simply a case that I had to understand in order to do well on my exam. I stopped myself after a moment to think about this case which involved a Children’s Foundation employee sexually abusing children. What was I doing? I was simplifying this horrible story into a set of legal rules that I could use to answer the fact pattern on my exam. This moment of reflection made me aware of my lack of knowledge on the stories behind the decisions that I read for my law courses.

This internship has been a great way to fill the gap that I experienced in my law courses. As part of our police monitoring work, my colleagues and I closely followed around 40 cases by visiting police stations, contacting guardians and attending numerous court hearings. Not only did I know the case files of the survivors very well, but often, I interacted with the girls who lived at Tumaini Rescue Centre. I could piece the difficult stories we read in case files with the girls I spent time with at the shelter. While knowing the girls’ stories made my work difficult emotionally, interacting with the girls, and seeing how wonderful they are, really gave me hope that the support they receive from Equality Effect and Ripples International is bettering their lives.

Almost every Saturday, Ashley and I went to Tumaini Rescue Centre to play sports, draw and dance with the girls. Above is a picture taken when we were drawing with chalk in the yard.

Almost every Saturday, Ashley and I went to Tumaini Rescue Centre to play sports, draw and dance with the girls. Above is a picture taken when we were drawing with chalk in the yard.

A beautiful work of art found in Tumaini Rescue Centre to highlight the importance of expressive art therapy.

A beautiful work of art found in Tumaini Rescue Centre to highlight the importance of expressive art therapy.

Ashley and I met with one of the girls after she was discharged from the shelter. We had gone to her step-father’s judgment hearing in Githongo Law Courts where he was convicted to life imprisonment for sexually abusing her. Talking with her was truly inspiring. She first said the following: “I’d like to thank Ripples. Going through the case wasn’t easy at first, but I overcame.” She told us that Ripples International’s counselling gave her the courage to testify. Ashley and I even bonded with her after she told us, “I dream to be a lawyer. I especially would like to help the girl child.” We talked about law school and encouraged her to keep working hard in school. It’s wonderful to see such a strong girl wanting to give back to other survivors of sexual abuse. I hope her dream of becoming a lawyer comes true because we need compassionate and caring lawyers to advocate for children’s rights.

  This picture was taken during our meeting with this brave survivor who wants to become a lawyer!


This picture was taken during our meeting with this brave survivor who wants to become a lawyer!

Our internship was challenging at times, but overall, the experience was incredibly rewarding on emotional, social and legal levels. However, in court, I did encounter some access to justice issues that organizations such as Ripples International and Equality Effect are trying to mitigate by providing legal support to survivors.

Delays

One big problem was delays in court. We would often go to court and matters were delayed for many reasons: the magistrate was not in, the accused was not in custody, the accused was in custody but was not brought to court, the hearing was rescheduled. These delays were incredibly frustrating, particularly because at Tumaini Centre rescuing the girls is usually temporary. Thus, girls are often discharged after they testify. When court hearings are delayed, this means that the survivor cannot testify, thus cannot be discharged, and therefore cannot go back to school. A magistrate was worried about the delays for one of the girl’s case as not going to school would go against the best interest of the child. In Kenya, the best interest of the child is a primary consideration “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”. [1] This is an interesting difference with Canada, where the best interest of the child is a main concept in family law, but not a general overarching concept in all actions involving children.

Cross-Examinations

Another occurrence which shocked me in court is that the accused in Kenya will often cross-examine the witnesses (including the victim), as most accused are not represented by a lawyer. While Legal Aid and Pro-Bono programs are in place in Kenya, most are not yet operational. Our coworker in the Access to Justice Department noted that in theory, Kenya has great laws, but that in practice, it’s often a different story. I attended two victim testimony hearings during my three months in Kenya, and both times the accused cross-examined the victim. One time, I was the only person sitting between the victim and the accused. I felt like a buffer, but not a sufficient buffer to prevent further harm to the victim. This is an access to justice issue on two different levels. First, the accused person is disadvantaged because he/she does not know the procedural and evidentiary rules. Second, this impedes on the survivor’s emotional access to justice as being cross-examined by your perpetrator is a form of re-victimization. In Canada, it is very rare for an unrepresented accused to cross-examine the victim in a criminal case because of applications made by prosecutors under section 486.3 of the Criminal Code to appoint counsel for cross-examinations. This reality in Kenyan criminal law courts demonstrates a need for the implementation of testimonial aids.

Finally, awareness campaigns are really important to make sure the laws to protect children—the Sexual Offences Act, the Children Act, the Kenyan Constitution—are fully implemented. I ended my enriching internship on a very positive note. I helped the 160 Girls social worker, Cornelius, facilitate a “Girls for Justice” Public Legal Education session in a primary school. The children asked very thoughtful questions and were eager to participate when we taught them the 160 Girls anthem “Say No”.

Cornelius at the “Girls for Justice” Public Legal Education seminar.

Cornelius at the “Girls for Justice” Public Legal Education seminar.

I will never forget this internship, and I hope to come back to Kenya one day. Until then, asante sana (thank you very much) for this beautiful experience and tutaonana (goodbye and see you again) Kenya.

Beautiful Kenya.

Beautiful Kenya.

[1] Children Act, The Republic of Kenya, Revised Edition 2012 [2010], Chapter 141, s 4(2).

Working Together à la Harambee to Protect and Promote Girls’ Rights in Kenya

By Esther Dionne Desbiens

I am doing my human rights internship with Equality Effect, a Canadian organisation that has developed a strong partnership with Ripples International, a local grass-root organisation in Meru, Kenya.

My stay in Meru has been great so far. I have been picking up some Swahili – Habari ya ko? [1] – as well as enjoying the fresh fruit and vegetables, wild life sightings, lush trees, blooming flowers and the mountains that surround the city.

1. Meru Town Market

Meru Town Market

Meru

Meru

I am assigned to the 160 Girls Project, bringing Ripples International and Equality Effect together to tackle defilement (consensual or non-consensual sex with a child under 18 or child rape) of girls and ensure proper police treatment of defilement cases. To do so, Equality Effect not only keeps track of police treatment, they also provide training to police officers, organize community awareness campaigns and facilitate public legal education seminars. As a legal intern, I help monitor police treatment of defilement cases by contacting police stations, attending court to track the progress of defilement cases and updating the survivors’ files. I also help facilitate public legal education seminars, raise awareness at events and conduct complainant’s evaluation of police treatment of defilement cases.

I have attended hearings in multiple courts so far. I have been to Meru Law Courts, Tigania Law Courts, Githongo Law Courts and Maua Law Courts. In every court room, you can find the Kenyan coat of arms above the Magistrate’s chair (pictured below). I noticed that the word Harambee is part of the Kenyan coat of arms. Ashley Boggild, my colleague from the University of Toronto, and I asked our colleague, who is an incredible social worker at Ripples International, what it meant. He answered that Harambee symbolizes togetherness. After doing some research, I found that it is a philosophy developed by the first President of the independent Republic of Kenya, Jomo Kenyatta. Some describe the word as meaning “pulling together” and “invok[ing] the spirit of self-help amongst Kenyans”. [2] What a great word to discover on our first few days of work with Ripples International and Equality Effect here in Kenya! The idea of togetherness really resonated with me as working collaboratively is necessary to tackle such an important human rights issue and protect the rights of the most vulnerable human beings in our society.

Kenyan Coat of Arms

Kenyan Coat of Arms

4. Maua Law Courts

At Maua Law Courts. From left to right: Muthomi Thiankolu (Equality Effect Human Rights Lawyer), myself, Benson Mzizi, Ashley Boggild, and Gilbert Cheptinde (Ripples International Social Worker).

The word Harambee perfectly reflects the work being cooperatively accomplished by Ripples International and Equality Effect in the Meru region. Ripples International’s motto is “Saving Lives, Serving Children”. They run a school, an orphanage (Newstart Babies Rescue Home), an access to justice program, a community outreach program and a shelter (Brenda Boone Tumaini Home) for young girls’ survivors of physical, sexual and/or psychological violence. While at the shelter and in the community, Ripples International social workers and counselors offer the survivors assistance (medical, legal, social) and counselling. Many survivors stay at the shelter while their cases are proceeding in court. I am so happy to see such a strong local organisation offering these survivors a safe haven in Meru.

A National Survey conducted in 2010 by UNICEF found that one in three Kenyan girls under the age of eighteen experience sexual violence. [3] At the request of Ripples International, Equality Effect joined forces with Ripples International in order to tackle impunity in cases of defilement through the 160 Girls Project in Kenya and address this prevalent issue. Together they instigated a constitutional claim in 2012 at the High Court of Meru against the Kenyan government and the Kenyan Police Service regarding police treatment in cases of defilement and they won. The High Court of Meru found that

police unlawfully, inexcusably and unjustifiably neglected, omitted and/or otherwise failed to conduct prompt, effective, proper and professional investigations to the said complaints. That failure caused grave harm to the petitioners and also created a climate of impunity for defilement as perpetrators were let free. [4]

The decision is known as the 160 Girls Decision since Ripples International had sheltered 160 girls, survivors of defilement, at their rescue center when the project began. The project we were tasked to work on, the 160 Girls Project, is the implementation of this very important decision.

While the 160 Girls Decision is a step in the right direction, it does not mean that the road to real change is going to be easy. Addressing defilement and child abuse is something that every society struggles with, from Canada to Kenya. So many forces –social, economic, cultural, religious, legal, etc. –   are at play when it comes to sexual violence against girls. Therefore, to make waves of change, Ripples International along with Equality Effect staff work together and adopt a multifaceted approach to tackle this epidemic of violence against girls in Kenya.

On June 7th 2016, Ashley and I attended the judgment hearing for a step-father accused of defiling his two step-daughters, both under the age of ten at the time of the offense. The two girls were staying at the shelter during the proceedings. The accused was found guilty on two counts of defilement and he was convicted to life imprisonment. This conviction was somewhat of a “happy ending” to a difficult story of abuse. Now we know that these two young girls will be a little bit safer when they leave the shelter as their perpetrator will be behind bars. However, defilement cases, even when they reach a conviction, are never really won by anyone because a successful criminal case does not undo the mental, physical and emotional trauma of defilement and prison time does not guarantee that the perpetrator will be rehabilitated.

The goal is to eradicate violence against girls, but in the meantime, strong legal support is necessary to make sure existing laws protecting girls’ rights are enforced. Hence, convictions are just one part of the puzzle. By piecing together all the different ways to address violence against girls – e.g. legal assistance, social work, education, awareness raising, community outreach and access to justice – we can truly bring about change in society.

Photo taken at a Public Legal Education Seminar for Community Leaders on the 160 Girls Project in Maua, where the members of the group pledged to raise awareness on girls’ rights in their respective communities.

Photo taken at a Public Legal Education Seminar for Community Leaders on the 160 Girls Project in Maua, where the members of the group pledged to raise awareness on girls’ rights in their respective communities.

Ashley and I talking about the 160 Girls Project on the Day of the African Child, June 16th 2016, on the radio in Isiolo.

Ashley and I talking about the 160 Girls Project on the Day of the African Child, June 16th 2016, on the radio in Isiolo.

Finally, we should never give up on fighting -peacefully- for human rights. Seeing the girls at the shelter smile, dance and play together gives me hope for the future. It also puts a face on the epidemic of violence against girls that we must work together, à la Harambee, to eradicate. We must keep the momentum going as the legal and societal consequences of the 160 Girls Decision just keep growing. I believe that by joining forces to tackle serious issues such as defilement, real change can happen. However, patience is key, as waves of change are formed one ripple at a time.

To find out more about the 160 Girls Project: http://theequalityeffect.org/160-girls/

Great video on the 160 Girls Project by The Equality Effect on YouTube: https://www.youtube.com/watch?v=zBR5lBmR5lI

[1] How are you in Swahili.

[2] A.V. Noreh, “Harambee in Kenya: A Bibliography” (1988) University of Nairobi Library at p.1.

[3] Violence against Children in Kenya: Findings from a 2010 National Survey. Nairobi, Kenya: UNICEF Kenya Country Office, Division of Violence Prevention, National Center for Injury Prevention and Control, U.S. Centers for Disease Control and Prevention, and the Kenya National Bureau of Statistics, 2012.

[4] K. (A Child) through Ripples International as her guardian and Next Friend) & 11 others v. Commissioner of Police/Inspector General of the National Police Service & 3 others [2013] eKLR High Court at Meru, May 27th, 2013; Available online: http://theequalityeffect.org/160girlshighcourt2013.html at p.6.

Creating Good Lasting Connections

2015 Rodriguez MariaBy Maria Rodriguez

I have crossed the half point of my internship in Kenya, and although this blog post was originally going to be about my experience as a white (mzungu [1]) girl in Kenya, I realized that there was something more important that I could share.

I am a law student, and while at law school I have learnt about substantive law and procedure, here in Kenya I have learnt that being a lawyer is not only about what you know but it is also about the relationships you are able to build with the people around you. In other words, relationship building has proven to be a key element of my work here in Kenya and I want to explain why.

As I had said in my earlier post I am working with the social workers of an organization that seeks to protect and bring justice to girls’ victims of sexual and physical abuse. The job involves going through their files, filling in forms, attending court to monitor their cases and going to police stations to inquire about the investigations. While going through the files and filing in forms are standard activities in most law-jobs (or any desk job for that matter), I have come to realize that the biggest and most important part of my work has been the fieldwork because of the human component. Indeed it is through my fieldwork that I have had the opportunity to meet and establish a relationship with police officers, magistrates, prosecutors, and other relevant stakeholders. These relationships have allowed me to learn much more than most of the paperwork because I have been able to engage in meaningful discussions about the law in Kenya, the value and place that children should have in society, and the different challenges that these stakeholders are facing when trying to seek justice for these girls.

Part of the benefits of making contacts and establishing good relations with the different stakeholders, besides their willingness to help when you are trying to inquire about a case, is the network of key people that you can build. For instance, every time my co-intern and I go to a police station for the first time we make a point of meeting the officer in charge (OCS) and explaining the purpose of our visit. More often than note, the OCS are very happy to greet us and have many questions for us (probably because we are white girls in very rural Kenya). However, regardless of whether my whiteness has a part to play in the way some people welcome us here, the relationships that we have been able to establish with our visits have proven to be very important.

imageIn one particular occasion, after we explained who we were and why we were there, the police officer in charge invited us to his office and began to tell us why he (unfortunately it is usually a he), appreciated our work and why he thought more organization like Ripples were needed for Kenya’s victims of abuse. Essentially, while waiting for a the police file of the girls we were inquiring about, the OCS told us about the biggest challenges he was facing and confided in us what he thought would be a good course of action for these girls. That conversation was much more informative and fulfilling than any paper work I had done.

There was another occasion when we went to a Law Court to get a copy of a judgement for a girl’s file that had been left un-updated for a long time, and the Magistrate invited us into his office. He was interested in knowing what we thought of the legal system here in Kenya compared to the Canadian one. Talking to him made me realize that on paper Kenya and Canada’s legal systems are not so different. Both countries were colonies of England and thus both countries use the common law, (with the exception that in Canada Quebec uses the civil law for some matters). In fact, the laws in Kenya exist and are good. The new constitution[2] enshrined the basic rights of children. But the problem is the implementation of these good laws. One thing is to change things on paper, and another thing is to change people’s attitudes and behaviour.

image-1

As a matter of fact, corruption runs deep within the police forces in Kenya[3]. At least six times when I have been doing fieldwork I have been in a vehicle that has been stopped by the police and driver has given out money. It happens everyday. It happens everywhere. And it’s a vicious cycle. Indeed, some of the families of girls that have been abused are so poor and so used to the corruption that they will make an arrangement with the family of the perpetrator to brush off the abuse and get in exchange some little money and some livestock. It is as if the words justice and legal system meant nothing to some people because all they have been used to is “under the table deals”. But, these are the kinds of issues that matter when you are doing human rights work, and these are the kind of issues you can only acknowledge by going out into the field, talking to people and experiencing it first hand.

Now, after 6 weeks and a half here in Kenya, it is clear to me that these issues are the reason why human rights work is about people, why the human component in any job is fundamental, why I find so fulfill and gratifying to spend my Saturdays playing with the girls of the rescue center, why meeting with police officers, Magistrates and prosecutors and listening to their queries and concerns has made me a better lawyer-in-the-making, and why these experience so far has been one of the greatest learning experience.

image-3 image-2

Lastly, and going back to why creating good relationships is important, I would like to share that in the last three weeks two girls have found justice as their perpetrator (their own respective fathers) were sentence to life in prison. Those convictions represent an incredible win in the fight against child sexual assault in Kenya. Coincidentally, both case were heard at the court I had mentioned in my previous post, where the magistrate keeps things tight and seeks expedient justice for the victims. Having the chance to get to know this Magistrate is one of those human relationships that I have found so valuable of my work here because it made me realized that what ultimately really matters in human rights work is making allies with the people that also want to make a difference. The human rights battle is not a battle you can fight alone. It is a battle society needs to fight collectively. So go out in the field and meet people and make valuable connections.


[2] https://www.kenyaembassy.com/pdfs/The%20Constitution%20of%20Kenya.pdf

[3] http://www.transparency.org/country#KEN

The Court System in Kenya: New Environment and First Impressions

2015 Rodriguez MariaBy Maria Rodriguez

Two weeks and a half have past since I arrived in Kenya but the experience has been so intense that it feels as if I have been here for a longer time. I have learned so much about Kenya and its people, (and I have so many stories to tell!!!), but this post is about the way their court system works.

I am in Kenya because I am working for an organization called the Equality Effect that strives to protect the rights of girls and women by promoting environments safe from sexual violence, education, and fulfillment of their economic potential[1]. The Equality Effect’s work in Kenya is done in collaboration with another organization called Ripples International[2] which seeks to safe lives and serve children.

Evidence of the Equality Effect and Ripples International’s work to protect girls’ rights is the “the 160 girls” project[3], which was a successful constitutional challenge to the Kenyan government for the failure to protect girls who had been defiled through a proper investigation and prosecution. “The 160 girls” project has now become a landmark decision in Kenya and both Ripples and the Equality Effect have embarked in the incredible task of ensuring that this promising project is put into action and thus brings real change to Kenyans. My work here is closely related to this project. I am here to support the Ripples’ staff in their daily work while attentively monitoring the impact that “the 160 girls” decision has had on the functioning of justice system. As such, part of the job includes going to police stations to inquire about the status of the investigation of a file, or going to court to monitor the developments of a particular case, among other things.

Given that most of the work here is confidential, I cannot give too many details of the cases and their development. Nonetheless, I will try to convey a snapshot of how the justice system works here in Kenya.

I have already attended four court hearings in these past weeks. From those four, three cases were adjourned to a later date because the given Magistrate in charge was either being transferred to a different court or not present that day. Apparently transfers are very common in the Kenyan justice system. Indeed, Magistrates and police officers are constantly moved around stations and courts across the country. I have been told that the transfers are simply the way the system is set up and that therefore it is unpredictable when or why a Magistrate will have to leave a case unfinished. What is certain, however, is that without a proper transition system between officers or between Magistrates, most cases end up forgotten or have to be re-started. Working with the Ripples social worker, I have encounter that this transferring around is a great challenge for bringing redress to these girls victims of abuse. When officers are transferred sometimes investigations have to be re-started, as we were told it happen for one of the girls. For one other case, the defense lawyer argued that the trial should restart because the new Magistrate would not be familiar with the file. Fortunately, on this occasion we were accompanied by a lawyer who put up a lot of resistance to such proposition. However, the Ripples social workers that go to monitor court hearings are almost never accompanied by a lawyer. This puts some cases at the mercy of the prosecutor who is not always as committed to the cases, as you would want.

Another element that I found interesting of how the courts work in Kenya regards the layout and organization of the court. Although I am not too familiar with how it functions in Canada, it really stroke me that here in Kenya the accused persons of the many cases the court will hear on that day, (because the court hears a mix of cases in one same sitting ranging from property and money disputes, to defilement and abuse), are all mingled within the public. You only realize you’ve been sitting next to someone that is an accused in a case when their names are called up and they have to stand up. In fact, during my first time in court the perpetrator of a case we were following was sitting right across on the other benches. I was stunned to realize that the man that had a raped and impregnated a little girl was just sitting there, across from us. Quickly I realized that that is the way it works and that no one really seems to notice it or be bothered by it. Indeed, even those accused persons that are in custody are brought in by an officer and, sometimes, are sited on a section of the same benches that public uses for lack of better place!

However, although the space is limited and the Magistrates are transferred constantly leaving unfinished cases behind, I attended a hearing at a court that stood out to me; it stood out not because of its facilities or location (it is actually in a very rural area), but because of its Magistrate. In fact, unlike the first three court hearings I went to, the court was called into session on time, there was an order to the way cases were being called out, and the Magistrate was not interested in adjourning cases just to move one. He took his time with each case listening and ensuring that the best course of action was taken. He spoke loudly (because Kenyans are the most soft-spoken people I have met!), and he was interested in making time as productive as possible. Granted this Magistrate was not being transferred, the feeling I had after leaving was not that of frustration, as I had experienced before with the other hearings, but of satisfaction that something had been achieved on that day, even if not a concluding sentence.

This last court hearing showed me that even though things are not as efficient as you would want, there are people who fight against the clustered system pressing for efficient sessions and who are committed to bring justice and doing the right thing no matter how difficult the environment and circumstance. It’s inspiring and sheds some hope for these beautiful and strong girls who have gone through so much already in their short lives. It makes my work worth it and it shows me that one case at a time will slowly create a ripple effect of change as to how rape is investigated and prosecuted here in Kenya. We will see if I can witness that ripple effect in the next 8 weeks that I will be here!


[1] For more information about the Equality Effect visit: http://theequalityeffect.org/

[2] For more information about Ripples International visit: http://ripplesintl.or.ke/

[3] For more information follow: http://theequalityeffect.org/160-girls/

 

Terrorism, Ethnic Divisions and a National Day of Protests

2014-ODell-AnnieAnnie O’Dell

It’s now week 6 in Meru, Kenya. Since we have arrived, Kenya has made the international news on several occasions.

  • May 3, 2014: two bombings in Mombasa.
  • May 4, 2014: two buses bombed in Nairobi, four killed.
  • May 10, 2014: I arrived in Nairobi.
  • May 15, 2014: travel advisories for most Western countries increased to include a high threat of terrorism. British nationals are evacuated from Mombasa and the coast.
  • May 16, 2014: a bombing in a market in Nairobi killing 12, wounding 70.
  • June 10, 2014: a Muslim cleric was shot in Mombasa, followed by more clerics killed and some rioting.
  • June 15, 2014: 48 people killed in a small town on the coast and near the border of Somalia, only non-Muslim men were targeted, though apparently 12 women were abducted.
  • June 16, 2014: near the town attacked the day before, ten more killed while watching the World Cup.

This follows a history that includes the Westgate mall shooting (killing 74) only last September. It also includes an attack on the international airport in Nairobi in January. As well as many other smaller-scale attacks that I did not bother listing above because they happened more than a week before my arrival.

In 2011, Kenyan troops entered Somalia. This move has increased terror attacks by the terrorist group linked to Al-Qaeda, Al-Shabaab.

However, the situation is more complex than Somali terrorism. Last year, President Kenyatta (racially a Kikuyu) won a much-disputed election against Prime Minister Odinga (who is Luo). Odinga claimed the elections were rigged, but the Supreme Court disagreed. The election results caused riots but pales in comparison to the violence that erupted after the elections in 2007. President Kenyatta has been charged by the ICC for inciting and financing parts of that 2007 violence.

Odinga, is currently calling for a day of protests on July 7th, the Saba Saba day. Saba Saba (meaning “seven seven”) is the anniversary of a revolution overthrowing an apparent dictatorship in 1990. This day is expected to be filled with riots and roadblocks.

Al-Shabaab has apparently taken responsibility for the two most recent attacks. But the President is claiming they are part of a political ploy to divide the country among the ethnic lines of Kikuyu and Luo. This conflict is increasing tension and distrust among the population, particularly those near the Somali border who are now arming themselves.

Where we are stationed has never been affected by any violence, terrorist or political. The violence and upsets are not affecting our work in the region but it is affecting our ability to travel on weekends and our parents’ sense of security. We booked a trip to Nairobi this weekend. We haven’t had running water for four weeks now, and this is practically our only opportunity to bathe. We are also looking forward to some Western comforts, such as burgers and movie theatres. But now, though Nairobi hasn’t been attacked in a few weeks, we have had to seriously evaluate whether we should cancel our trip. It’s kind of an odd feeling to weigh options like showering and burgers against the relatively remote, but not unlikely, threat of terrorism.

Kenyan Courthouses: Handwriting, Missing Witnesses and Wrong Numbers

2014-ODell-AnnieAnnie O’Dell

This is my fourth week in Kenya for my internship with the Equality Effect. I am working in Meru, with a student from the University of Toronto. We have been placed with a partner organization, who does almost everything. It has an orphanage, a health clinic, it provides micro-loans, there’s a school, and most importantly, a rescue centre. The rescue centre currently houses about 25 children, most of whom have been defiled (sexual assault of a minor). They offer them counselling, legal support, medical support, and aid during the transition into motherhood for the girls who become pregnant. Only those girls who either have nowhere to go or are in danger within the community are admitted, others are treated at home.

 Our job is to comb through the files since the 160 Girls decision was made last year to document how police treatment has changed, if at all. The decision clearly stated that the police must diligently fulfil their obligations to all children who bring a complaint of defilement to them. The belief is that, as Meru was ground zero for 160 Girls, the police here are the most likely to be compliant (the decision was binding across the country).

The most interesting part of our job is going to court. We’ve so far seen been to two trials… sort of. The Kenyan legal system is slow and delays happen regularly, mostly for reasons that would not fly in Canada.

Our first court date was at the courthouse in the city. Most of the Courthouse is outdoors, while the courtrooms are indoors. We checked a typed list posted on a notice board to see in what order our case would come. It was supposed to be a mention for an elderly man who had allegedly defiled a girl of 14. (I’m still not entirely certain what a mention is, but in this case, it meant the accused had a chance to accept or deny the evidence placed against him). We waited outdoors, on three long benches under a corrugated roof, for the accused’s name to be called. We sat at one end of the bench with the social worker and the mother of the victim. At the other end of the bench, probably no more than 20 metres away, awaited the accused who was out on bail. While I am not so familiar with Canadian courthouses, I was upset by the casual nearness the accused and the victim were expected to endure. Particularly in such a sensitive case.

Eventually, the accused’s name was called and we followed him into a magistrate’s chambers. The Courts are undergoing a transition, and the magistrates are currently hearing cases in their chambers. The room was barely big enough for the magistrate’s large desk, a desk for a bailiff/secretary, a bench crowded with the accused and his lawyer, and us four standing partially out in the hallway. Kenyans are very soft-spoken people, so I unfortunately did not hear anything. But we were in out and out of that room within a few minutes.

Apparently, a new magistrate was assigned to the case. When this happens, the accused is asked if he wished to re-start the trial or continue. I am unsure what the accused chose, but I believe he did choose to continue. The mention never came though, because the case notes were not typed. The magistrate then adjourned for another month or so, even though the case has been on-going for over a year already. This sort of delay is a frequent occurrence.

Another, even more frequent type of delay, is the absence of witnesses at trial. The second day we spent at a different courthouse. Once again, we checked for our accused’s name on a bulletin board and saw that it would take place in Courtroom 1. We waited for the courtroom to open (about an hour later than it was supposed to) and entered. We, and many others, squeezed into a tiny courtroom on three very uncomfortable wooden benches. A female magistrate eventually walked in. They called one accused at a time to begin their mention or hearing. While it took place in Kiswahili, it was easy to understand that many witnesses and some accused were missing. It was finally our accused’s turn. He was accused of defiling his tutee, his defence was that he thought she was over 18. He stood up. Some questions were asked in Kiswahili. One name was called. Silence. Another name called. More silence. Neither the doctor nor the police appeared to testify. Case adjourned for another month.

We then headed to the police station to enquire why the officer never showed up. We waited on the compound for over an hour to get an answer. The officer was back in the city (about 90 minutes away). But the officer who was helping us went above and beyond. He dug through handwritten files to discover we had with us the wrong court file number. He found us the right one (one digit off). That case has been closed for several months. The accused had been sentenced to 15 years imprisonment! Great news! Though we still have no idea whose trial we witnessed…

Court Filing Fees in Kenya

2013 Tina Hlimi 100x150A hypothetical scenario:

In order to be married in Kianyaga, Kenya, a couple must obtain a marriage license from the Office of Registrar of Marriages by paying a Kshs 200 licence fee. The marriage license fees will not the waived even if the couple applying for the licence cannot afford to pay it. Assume then there is a couple in Kianyaga who desire to marry but simply cannot afford the license fee, what happens?

The couple will not be able to get married legally. This is because licence fees, even part of court proceedings, (e.g. land title deeds; 520 Ksh) must be paid out-of-pocket by all individuals regardless of socio-economic status.

Thus, the delineation between proceeding fees and licence fees is important. In the case of indigents or individuals with access to legal aid, the cost of the former may be alleviated (in civil and criminal matters), whereas licence fees are generally mandatory and consistent across the board.

The inability to pay filing and advocate fees within the matrimonial, family and property law realm is a serious problem for marginalized litigants in Kenya. According to the Pittsburgh Jurist legal website and the US Department of Justice:

Court fees for filing and hearing cases are high for ordinary citizens. The daily rate of at least $25 (2,000 shillings) for arguing a case before a judge is beyond the reach of most citizens.[1]

Further, Kituo Cha Sheria, a Nairobi-based legal organization, which we have been in close partnership with, has reiterated:

Filing and legal fees are too high for a good number of Kenyans. Time, cost and transport keep many away. Women, children and poor men are the ones most affected by this. There is no dependable or practical state provided legal aid scheme. NGOs and Faith Based Organisations have stepped in to provide legal aid and advice the poor and women but they are only able to reach a very small percentage […].[2]

Each week we hear complaints from clients stating that they are still unable to access the judiciary. With our legal aid program we have alleviated the first impediment: namely the costs of hiring an advocate; this is paid for by the organization in aid of the client. The second barrier, consisting of court proceeding and licence fees, is still more difficult to overcome. Given our limited resources, it is fiscally impossible for the organization to cover all of the litigant’s costs.

The complaint is nevertheless valid. The GDP per capita in Kenya is roughly $ 1800 per year (2012 figure; $ 900 per month)[3] or Kshs 156,240 (Kshs13,020 per month). In consideration of amassing legal costs (see table 1), it is clear that legal fees can form a significant portion of an individual’s salary. In these circumstances the principle of proportionality is imperative. If the costs of filing and litigation are more than the amount owed to the client by the defendant (e.g. for a property dispute or land gracing case) then perhaps the case is not worth litigating.  It is of course difficult to explain the idea of proportionality to the client as some simply want retribution.

.Table 1: An example of legal costs in the Kenyan judiciary; much of these costs accumulate to form a significant amount which many individuals will not be able to pay thus delaying proceedings and acting as a deterrent to the judiciary.

Description Cost in Ksh $ CDN
Depositing a will of a living person 500 6
Withdrawing from deposit or inspecting a will of a living person 300 3.59
Depositing a will or certified copy of  a will of a deceased 300 3.59
Particulars of a plaint 100 1.20
Hearing fee in the High court 2000 per day! 23.93
Judicial review 6000 71.80
Order of mandamus 6000 71.80
Prohibition certiorari 6000 71.80
Decree or order 150 1.80
Origination summons Minimum of 1500 17.95
Issue of witness summons 50 0.60
Issue of execution (e.g. warrant of attachment or a sale of property) 50 0.60
Bill of costs for taxation 250 2.99
Affidavit/declaration 50 0.60
For each exhibit or affidavit declaration 10 0.12
communication with a court or tribunal outside of Kenya 250 2.99
Execution of civil warrants 100-200 1.20-2.39

Despite the inability of countless individuals to pay court filing fees, access to justice is an enshrined legal right guaranteed to Kenyans through the International Covenant on Civil and Political rights (ICCPR), which the government ratified in 1972.[4] The Covenant states that an accused offender (in criminal cases) is allowed “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it” (art. 14(3)). [5] In addition to this criminal clause, the Committee on Economic, Social and Cultural Rights has established that under the International Covenant on Economic, Social and Cultural Rights (ICESCR), State-governments should likewise grant legal aid to individuals who are facing evictions (civil cases). The Human Rights Committee has also encouraged states to provide indigents with free legal aid in civil cases and if interpreted purposely States may even have to provide civil legal aid as per s. 14 of the ICCPR.[6] As a result, some State parties to the ICCPR have consistently reported on their efforts to provide counsel in civil matters.[7] It is nevertheless important to stress that the civil legal aid is not obligatory and that there is no legal right to civil legal aid despite the attention afforded to the issue by some States. This has been reiterated by countries like the United States (e.g. Lassiter v. Department of Social Services).[8]  The same rings true in Kenya, where state-funded legal aid is only available for murder suspects thereby excluding marginalized members of society.[9]

At first blush, it seems that civil legal aid is excluded from federal legal assistance in Kenya. This is partially true; Order 33 of the 2010 Kenyan Civil Procedure Rules includes a section on paupers or indigents. The section guarantees legal assistance (upon proof) to indigent individuals seeking to access the judiciary. In essence, the pauper’s advocate/ filing costs will be covered. However, if the pauper or plaintiff wins his/her case the court will then deduct the costs that the pauper would have paid devoid his/her pauperism (clause 10). If a pauper loses his/her case s/he will have to pay the outstanding court fees as though the suit has not been filed under the pauper designation (clause 11). The latter is an evident disincentive for indigent individuals to pursue their case.

Order 33 clause 10 states:

10. Where the plaintiff succeeds in the suit, the court shall calculate the amount of the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the court from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.

11. Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed because the plaintiff does not appear when the suit is called on for hearing, the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.

12. The Government shall have the right at any time to apply to the court to make an order for the payment of court fees under rule 10 or rule 11.

It is also difficult to prove to the judiciary that one is deserving of indigent status. Kituo Cha Sheria states the courts often requires proof of indigent status, necessitating a chief’s letter and his/her presence which is expensive (e.g. transport costs) and complicated; chiefs often refuse to attend court to provide evidence. Further, proof of income is not easy, particularly due to lack of documentation among rural laborers or those working in the non-formal sector.[10] It is ultimately the court’s discretion as to whether they are willing to accept a suit by a pauper. The 2013 Kenyan Supreme Court decision, John Mbugua and another v. the Attorney General, elucidated the requirements for pauperism:

“The threshold of proving that an applicant deserves the leave of the Court to be pronounced as one capable of filing in forma paupers is extremely high […]The onus in pauper briefs lay squarely on the applicant to candidly and in extreme openness reveal all about his status to the Court. Failure to provide disclosure in its strict sense would knock out the matter and would render a matter as uncreditworthy […]The court must be satisfied on the application of an applicant that he lacks the means to pay the required fees or to deposit the security for costs and that the matter is not without reasonable possibility of success […]A court [is] entitled to reject such an application where the court [is] satisfied that the applicant [may] not recover more than nominal damages [idea of proportionality], the court might well be justified in refusing permission because it would be unjust to the other party who [may] have to incur substantial costs which might not be recoverable.”[11]

Akin to legal aid in Canada the question then arises: what about lower income individuals (non-paupers) who are classified as making too much money (or own assets) in order to qualify for legal assistance (income is too high to access legal aid and too low to afford standard legal fees)? This is the case for many individuals living in Kianyaga. Many of our clients own land and assets but still find court filing fees pricey. This is why they protest. Without our aid (seeing an advocate) they would literally have no access to the judiciary.[12]We try to alleviate some of the filing fiscal issues by first asking the client to exhaust all of their potential economic resources (e.g. friends, family, church etc.). If the client has thoroughly searched and exhausted their network and is still unable to siphon together the required money, our research organization is willing to step in and grant the necessary funding. This is, however, only a temporary solution. I believe that the larger issue is systemic and needs to be corrected at both an international and domestic level in order to ensure access to justice (lawyers, court fees and licence fees) for lower-income individuals.


[1] Victor Mosoti, “Constitution, Government & Legislation” online: The Jurist <http://jurist.law.pitt.edu/world/kenya.htm>.

[2] Kituo Cha Sheria, “Kituo Newsletter April 2010”, online: <http://www.kituochasheria.or.ke/index2.php?option=com_docman&task=doc_view&gid=71&Itemid=44>.

[3]The Central Intelligence Agency, “The World Factbook: Kenya,” online: CIA   <https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html>.

[4] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 15 July 2013]

[5] Ibid.

[6] Zachary Zarnow,  “Obligation Ignored: Why International Law Requires the United States to Provide Adequate Civil Legal Aid, What the United States is Doing Instead,  and How Legal Empowerment Can Help” Journal of Gender Journal of Gender, Social Policy & the Law, Vol. 20, (1) [2011] at p. 4.

[7]  Ibid at page 5.

[8] Ibid.

[9] Supra note 2.

[10] Andrew Novak, “The globalization of the student lawyer: a

Law student practice rule for indigent Criminal defense in Sub-Saharan Africa” 3 Hum. Rts. & Globalization L. Rev 33 2009-2010

[11] John Mbugua and another v. the Attorney General online: <http://www.kenyalaw.org/newsletter1/supreme/Issue072013.php>.

[12] Supra note 10.

The Provision of Legal Assistance in Kenya

2013 Tina Hlimi 100x150I arrived in Kianyaga, Kenya almost a month ago. The experience to date has been incredible. I am working with a great team of McGill interns and Kenyan paralegals in the rural town of Kianyaga located on the foothills of Mt. Kenya.

The encompassing region of Kirinyaga (in Kikuyu “the bright big hill” referring to Mt. Kenya) is especially mountainous with long, winding, red dirt roads. The striking red clay soils are indicative of iron oxide and porous soils often found in temperate and tropical regions. Another geological feature of the region is the mounds of dispersed volcanic rock, a reminder of the once-active stratovolcano, Mt. Kenya. The flora of this elevated region is lush and tropical, as one would expect of an equatorial environment. Banana trees are omnipresent, along with papaya, avocado, sugarcane and passion fruit.

In addition to the native vegetation, there is also an abundance of non-native species including Australian eucalyptus trees, which are chiefly used for building material as they repel parasitic termites and grow at exceptional rates. The surrounding landscape is littered with tea and coffee plantations. Many of the farms (“shamba” in Swahili), which I have visited for land disputes claims, cultivate large plots of coffee. Despite the abundance of coffee beans, Kirinyaga is a tea-drinking district (recipe: ½ milk, ½ water and black tea leaves) as much of the coffee is exported.

Local farmers constitute 80% of Kianyaga’s local economy coinciding with an elevated number of land conflicts. The city centre is relatively small and consists of numerous small shops selling everyday items, such as: soap, egg, bread, baked goods, newspapers, brooms and so forth. The city centre can be traversed on foot within a half hour.

On the periphery there is a bustling market, where one can find a wide assortment of beans (80 varieties of which 6 are mainly consumed: rosecoco, mwezimwoja, mwitemania, surambaya, githeri etc.), rice (there are numerous rice paddies in the vicinity), pineapples, mangoes, avocados, onions and tomatoes, passion fruits, carrots, zucchinis, pumpkins, squash, white maize, and so forth. My daily meals often consist of cooked “githeri” beans (mixture of maize and beans) and fruit salads.

Nearly all of the land conflict respondents are farmers residing in agrarian areas, kilometers away. In order to reach them, I frequently take a motorbike, or a “piki-piki”, as they are called in Swahili.  Piki-pikis are nerve wracking, as the dirt roads are unlevelled and occasionally slippery following heavy downpours. These bikes often fit 2-3 people, in addition to the driver. When travelling longer distances (e.g. for land registration in nearby towns or Nairobi) I use a “mutatu”, a large van with 16 seats. The mutatu environment is unparalleled. The van is always packed with commuters and the drivers are incessantly playing Jamaican reggae, while peddlers loop the vehicle selling all sorts of knick-knacks.

Kianyaga’s inhabitants are chiefly Kikuyu, the predominant ethnicity of 42 ethnic groups in the country. The Kikuyu of Mt. Kenya speak Kikuyu, Swahili and English. When conducting land conflict interviews and gathering narratives (e.g. land grabbing, theft, border disputes, land title claims, etc.) close to 80% of the meetings transpire in Kikuyu and are subsequently translated into English for me. This is regrettably one of the barriers to conducting legal research and providing legal aid in a foreign country; I often only hear a brief synopsis of the dialogue between the respondent and the paralegal.

Another challenge is the corruption of the judiciary at the local level. Many of the respondents’ files, although filed correctly, are simply irresolvable as judges, block leaders and local chiefs are bribed by the opposing party. In addition to corruption, the administrative workers at the local court are sometimes reluctant to assist us with respondents’ files. We have had respondents seeking documents and assistance at the court, only to be turned away for trivial reasons. When they return with a paralegal or when I am present, the employees are more willing to assist with file preparation and to provide guidance.

Corruption combined with financial restraints prevents respondents from seeking advocates. This fact alone makes it simple for perpetrators to grab land, coax respondents into entering shady, ambiguous or fraudulent contracts or simply bribe the local chief or block leaders, who are responsible for mediation.

Hence, providing marginalized individuals who are often unaware of their legal rights with an alternative economical route (e.g. legal aid) to the judiciary makes a difference or at least offers individuals hope when all hope may have otherwise dissipated.

To facilitate the project, I work with a Nairobi advocate who visits the office each week and provides legal aid to 6-10 respondents. Each subsequent week, the respondents’ cases are incrementally resolved through: court filings, land cautions, appeals and so forth. I recognize that many of the cases which I am currently working on will not be resolved, or be close to resolution by the time I leave. I nevertheless hope to make a difference with my current files and in the lives of the respondents that I am presently working with.

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