We must include and empower people with disabilities
Posted: 8 December, 2015 Filed under: William Aseka | Tags: 3 December 2015, Basic Education Act of 2014, constitution, Constitution of Kenya, Convention on the Rights of Persons with Disabilities, CRPD, disability, disability rights, discrimination, education, emplyment, gender, inlcusion, International Day of Persons with Disabilities, Kenya, Kenya National Survey for Persons with Disabilities, political participation, social participation, social particpation, transportation, United Nations 2 Comments
Author: William Aseka
Disability Rights Program Advisor, Kenya Human Rights Commission
Today one billion people around the world are living with disabilities. According to Kenya National Survey for Persons with Disabilities more than three million people in Kenya are living with disabilities. Many persons with disabilities have good jobs and proper education. However, far too many persons with disabilities in Kenya face barriers to inclusion in many key aspects of society. As a result, people with disabilities do not enjoy access to society on an equal basis with others, which includes areas of transportation, employment, and education as well as social and political participation. The right to participate in public life is essential to create stable democracies, active citizenship and reduce inequalities in society.
Respecting the rights of urban refugees in East Africa through a human rights approach to urbanisation
Posted: 7 September, 2015 Filed under: Gertrude Mafoa Quan, Michael Addaney | Tags: 1951 Convention, assault, Burundi, Democratic Republic of Congo (DRC), discrimination, East Africa, Eritrea, Ethiopia, hostility, human rights, Kenya, nited Nations High Commissioner for Refugees, poverty, Refugee Consortium of Kenya, refugees, Rwanda, Somalia, South Sudan, Sudan, sustainable development, Tanzania, Uganda, UN Habit, UNHCR, United Nations Convention relating to the Status of Refugees, urban development, urban refugees, urbanisation 3 Comments
Author: Michael Addaney
Student (MPhil Human Rights and Democratisation in Africa), Centre for Human Rights, Faculty of Law, University of Pretoria
Author: Gertrude Mafoa Quan
Candidate Attorney; LLM (Multidisciplinary Human Rights) student at the Centre for Human Rights, University of Pretoria
The city is the new refugee camp…
~ International Rescue Committee
Article 1 of the 1951 United Nations (UN) Convention relating to the Status of Refugees (1951 Convention) defines refugee as ‘a person who is outside his or her country of nationality or habitual residence due to a well-founded fear of persecution base on race, religion, nationality, membership of a particular social group or political opinion and is unable or unwilling to avail him or herself of the protection of that country or to return there for fear of persecution’. Due to contextual issues, article 1 of the 1969 Organisation for African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 OAU Convention) added a second paragraph to the 1951 Convention to incorporate people that have been displaced due to liberation wars and internal upheavals.
Meanwhile, there is no internationally recognised definition for urban refugees. However, the Refugee Consortium of Kenya (RCK) defines an urban refugee as a refugee who satisfies the international requirements for obtaining a refugee status and has self-settled in a city or town. Recent decades have experienced rapid population growth with most cities witnessing urban sprawl. The United Nations High Commissioner for Refugees (UNHCR) reported in 2009 that an estimated 58 percent of the world’s 10.5 million refugees now reside in cities.
Despite it being mostly rural region, UN Habit has projected that Sub-Saharan Africa and for that matter countries in Eastern Africa will have more than half of its population residing in urban areas by 2026. Characteristically, there has been increasing flow of refugees to urban areas in this region too. According to official UNHCR 2015 statistics, four Eastern African countries (Kenya, Uganda, Tanzania and Ethiopia) host more than 1.5 million refugees. These refugees are mostly from 9 countries (Somalia, South Sudan, Sudan, Uganda, Ethiopia, Eritrea, Rwanda, Burundi and DR Congo).
To achieve transformation, Kenyan law needs to shun a hierarchy of sources
Posted: 17 August, 2015 Filed under: Humphrey Sipalla | Tags: constitutional law, dualism, echanistic jurisprudence, hierarchy of sources, ICCPR, ICJ, international law, ius cogens, Kenya, law enforcement, law reform, monism, transformation, transformative constitutionalism, Uhuru Park, use of force, Wangari Maathai 3 Comments
Author: Humphrey Sipalla
Freelance editor
It is opined by some in Kenya that the regime of former President Moi hardly broke constitutional law. For the most part, it rather, applying provisos and rigid compartmentalised thinking, bended and stretched it absurdly. There may be some truth to this. Previously on this platform, I opined that Kenyan society is prone to absolutes, in that instance, equating legitimate use of force with its disproportionate immoral use in “law enforcement”. It would seem that the legal fraternity too suffers its own peculiar version of this Kenyan tendency to be rigid.
At a conference on transformative constitutionalism, Prof. Ambreena Manji noted that for Kenya to realise the aims of its visionary transformative constitution, we needed a certain conversion of the soul, not just the mind, of the Kenyan jurist. At this same conference, the Chief Justice of Kenya, Dr Willy Mutunga lamented the old judiciary’s reliance of “mechanistic jurisprudence”. Such judicial policy led to the dismissal of the late Wangari Maathai’s (later Nobel Peace Prize Laureate) 1989 case against government plans to build a 60 storey building on Nairobi’s Uhuru Park as she did not show what injury would befall her were the environment to be spoilt. In 1989 too, the High Court held that the Bill of Rights could not be enforced as the Chief Justice had not issued enforcement rules as obligated by the Constitution. In 1993, again, presidential candidate, Kenneth Matiba’s election petition ground to a halt as he was unable to serve the sitting president with suit papers personally.
Dealing with statelessness in sub-Saharan Africa: The way forward
Posted: 13 May, 2015 Filed under: Michael Addaney | Tags: ACRWC, African Union, armed conflicts, Burundi, citizenship, civil society, conflicts, Cote d'Ivoire, CRC, Democratic Republic of Congo (DRC), economic migration, education, Eritrea, Ethiopia, Global Trends Report, health services, Kenya, Madagascar, statelessness, strategic advocacy, sub-Saharan Africa, Tanzania, UNHCR, United Nations, United Nations High Commissioner for Refugees, Zimbabwe 1 CommentAuthor: Michael Addaney
Student (MPhil Human Rights and Democratisation in Africa), Centre for Human Rights, Faculty of Law, University of Pretoria
‘Statelessness is a profound violation of an individual’s human rights. It would be deeply unethical to perpetuate the pain it causes when solutions are so clearly within reach.’
– Antonio Guterres, United Nations High Commissioner for Refugees (UNHCR)
Statelessness as a legal problem has far reaching political and economic challenges which have attracted rising attention from scholars, human rights activists and international organisations in recent years. Officially, statelessness means a person who is not considered as a national by any State under the operation of its law. The UNHCR started collecting data on stateless persons in the world in 2006 and confirmed in 2011 that the number of stateless persons around the world is in excess of 10 million despite conceding that obtaining the actual statistics is difficult.
The most affected are regions that have suffered or are experiencing armed conflicts or economic migration. Large numbers of stateless population are largely due to policies and laws which discriminate against foreigners despite their deeper roots in the states concerned. For instance, more than 120 000 persons in Madagascar are stateless on the basis of discriminatory citizenship laws and administrative procedures. Moreover, about 170 000 Burundian refugees who fled their country in 1972 are recognised as stateless in Tanzania despite cogent attempts by international and local organisations to have the situation rectified.
Mitigating the extractive industries resource curse in East Africa: Adopting the UN Guiding Principles on Business and Human Rights
Posted: 4 May, 2015 Filed under: Samuel Matsiko | Tags: business and human rights, Eats Africa, extractive industries, gas, IHRB, Institute for Human Rights and Business, John Ruggie, Kenya, Kenya National Commission on Human Rights, National Action Plan, natural gas, oil, Tanzania, Uganda, UN Guiding Principles on Business and Human Rights 4 Comments
Author: Matsiko Samuel
Human rights lawyer; Africa Excellence DAAD Scholar, South African-German Centre for Transitional Justice
On 19 – 21 January 2015, the Centre for Human Rights, University of Pretoria in partnership with the Institute for Human Rights and Business office in Kenya on behalf of the Africa Commission Working Group on Extractive Industries organized a three day consultative meeting for civil society and national human rights institutions . The consultations focused on challenges and best practices in the extractive industries in the East Africa Sub region.
The extractive industries sector in East Africa is growing exponentially with the discovery of oil and gas in Uganda and Kenya. In 2006, Uganda discovered commercially viable oil deposits in the Albertine Grabben in western Uganda with an estimate of 2.5 billion barrels of oil. In neighboring Kenya the government has issued more than 47 exploration licenses and has four prospective basins in Anza, Lamu, Mandera and the tertiary rift. Tanzania unlike its neighbor’s has no commercial discoveries of oil but it has built a niche in the natural gas sector with 2 producing gas fields in Songo Songo and Manzi Bay.
It is time to take maternal mortality in Kenya seriously
Posted: 19 March, 2015 Filed under: Clara Burbano-Herrera | Tags: accountability, African Charter on Human and Peoples' Rights, African Union, Beijing Declaration, Brazil, Cairo International Conference on Population and Development, Campaign beyond Zero, Convention on the Elimination of all forms of Discrimination against Women, Kenya, Kenya National Commission on Human Rights, KNCHR, maternal mortality, preventable death, women's human rights, women's rights 3 Comments
Author: Clara Burbano-Herrera
Fulbright Postdoctoral Research Fellow at the FXB Center for Health and Human Rights, Harvard University (USA)
Maternal mortality rates reflect disparities between wealthy and poor women, and between developed and developing countries. [i] Frequently, whether women survive pregnancy and childbirth is related to their social, economic and cultural status. The poorer and more marginalized a woman is, the greater her risk of death. [ii] Ninety–nine per cent (99%) of maternal deaths occur in developing countries, and most of these deaths are preventable. [iii]
While worldwide maternal mortality has declined – in 2013, the global maternal mortality ratio (MMR) was 210 maternal deaths per 100,000 live births, down from 380 maternal deaths in 1990 (a 45 per cent reduction) [iv] – unfortunately in Kenya maternal mortality has decreased very little, i.e., from 490 to 400[v] in the period between 1990 and 2013, compared to the Millennium Development Goal No. 5 (MDG) target [vi] of 147 per 100,000 births. [vii]
Sentencing ‘at the president’s pleasure’ and what it means to persons with mental disabilities in Kenya
Posted: 17 September, 2014 Filed under: Felicia Mburu | Tags: constitution, Convention on the Rights of Persons with Disabilities, CPC, Criminal Procedure Code, CRPD, Kenya, Kenya National Human Rights Commission, mental disabilities 5 Comments
Author: Felicia Mburu
Advocate of the High Court of Kenya
On 8 May 2013, the High Court of Kenya in Case Number 14 of 2010 passes a sentence on the accused who had pleaded guilty on a murder charge. Nawya Mawjoya, a person with mental disability, was sentenced to detention ‘at the president’s pleasure’ under section 167(1) of the Criminal Procedure Code (CPC) instead of being given a probationary sentence. The Court relied on the probation officer’s recommendation that he be institutionalised as the family believes he was bewitched and will be subjected to rituals. Such cases are common in Kenya for two reasons: lack of awareness by the criminal justice system on mental disability and cultural perception associated with mental disabilities. Thus the criminal justice system operates as a conduit to institutionalise persons with mental disabilities.
Kenya is a signatory of the Convention on the Rights of Persons with Disabilities (CRPD). Article 14 (1) (b) of the CRPD provides for the rights of persons with disabilities not to be deprived of their liberty on the basis of their disability. Article 19 further provides that persons with disability have a right to live in the community on an equal basis with others. Article 50 of the Constitution of Kenya provides for the right to a fair trial for all persons. Article 29 further supports the rights of person not to be arbitrarily denied their freedom without just cause. Article 54 of the Constitution states the rights of persons with disabilities to be treated with dignity and respect.
People with mental disabilities ALSO have the right to marry in Kenya
Posted: 28 May, 2014 Filed under: William Aseka | Tags: African Union Commission on International Law, Constitution of Kenya, Convention on the Rights of Persons with Disabilities, CRPD, equality, ICCPR, ICESCR, international law, Kenya, Marriage Act, Marriage Bill, mental disabilities, non-discrimination, polygamous marriages, right to marry 3 CommentsAuthor: William Aseka
Human Rights Fellow at Burton Blatt Institute, Syracuse University
The Marriage Bill (now Act) 2014 has elicited different reactions from Kenyans. Some mostly women, have argued that the law will allow men to engage in polygamous marriages. Some have hailed the law as consolidating the different types of marriages into one piece of legislation. However, the people with intellectual and psychosocial disabilities have completely been left out of this debate. The law clearly discriminates and expressly denies people with mental disorders from exercising their right to marry. Section 11(2)(b) of the Marriage Act 2014 provides:-
Consent is not freely given where the party who purports to give it is suffering from any mental disorder or mental disability whether permanent or temporary…
The Act further provides in section 73 that if one suffers from ‘recurrent bouts of insanity’ then the partner is allowed to have the marriage annulled. This essay seeks to argue that the Marriage Act 2014 not only violates Kenya’s obligation under international law but also violates the Constitution of Kenya 2010 Article 27(4), which proscribes discrimination based on disability.
The need for proper leadership to guide the Kenya National Commission on Human Rights in Promoting and Protecting Human Rights in Kenya
Posted: 11 November, 2013 Filed under: Francis Khayundi | Tags: human rights, human rights culture, independence, Kenya, Kenya National Commission on Human Rights, Kenyan Constitution, National Human Rights Institution, Paris Principles, representation, socio-economic rights 1 Comment
Author: Francis Khayundi
PhD candidate, Rhodes University, South Africa
The advent of the new 2010 Kenyan Constitution brought with it a promise of inclusive human rights enjoyment by making provision for socio-economic rights in Article 43. The entrenchment of the Kenya National Human Rights Commission (KNCHR) as an independent constitutional body, specifically tasked with the promotion and protection of human rights in Kenya, in terms of Article 59(1), further strengthened this development and promise. The KNCHR’s legal mandate, powers and the selection of commissioners is governed by the KNCHR Act of 2011.
Realising the importance of having an institution that could independently work towards the promotion and protection of human rights in Kenya, the drafters of the Constitution opted to include the KNCHR in the final draft, with a mandate that was whittled down from what was initially proposed. Through the Act, the KNCHR was established as a successor institution to the one initially anticipated in Article 59(1) of the Constitution. The KNCHR is a National Human Rights Institution (NHRI), an institution formed by either a constitutional provision or legislative text to specifically promote and protect human rights. There are quite a number of similar NHRIs formed across the globe. NHRIs are non-judicial mechanisms that complement other arms of government in the fulfilment of human rights within a state. They are also an indication of a state’s commitment to use all appropriate means to realise human rights. The establishment of NHRIs is guided by the Principles Relating to the Status of National Institutions (Paris Principles) which, at a minimum, require that such an institution be independent (financially, operationally and legally autonomous); have a broad mandate; have a diverse membership; and given enough room to carry out their functions.
Why Kenya needs to ratify the ICESCR Optional Protocol
Posted: 4 November, 2013 Filed under: William Aseka | Tags: African Union, Chief Justice Willy Mutunga, economic rights, International Covenant on Economic Social and Cultural Rights, International Criminal Court, international human rights, Kenya, poverty, President Uhuru Kenyatta, socio-economic rights, South African Development Community Tribunal Leave a commentAuthor: William Aseka
LLM candidate, Syracuse University College of Law, New York (United States of America)
As Beth Simmons points out, three billion people survive on less than $2.50 per day. She states that if these facts are anything to go by, it is even harder to comprehend that economic rights have been codified as part of the international human rights system for the past 60 years. According to Simmons, what is even more disturbing is the fact that over 85% of states have ratified one or two treaties that recognise economic rights. In Kenya, more than 58% of Kenyans live below the poverty line. Further, more than half of the Kenyan population is poor and over 7 million Kenyans live in extreme poverty, despite Kenya having ratified the International Covenant on Economic Social and Cultural Rights (ICESCR) 41 years ago.
On 5 May 2013, the Optional Protocol to the ICESCR entered into force after receiving its tenth instrument of ratification. The purpose of the Optional Protocol is to address violations of socio-economic rights which have been loosely applied when compared to the civil and political rights. The Protocol achieves this by giving an individual locus standi before the Committee and hence asking directly whether a state violated the ICESCR. As much as there is scepticism about this Protocol, this paper wishes to submit that states, especially Kenya, should look beyond this scepticism and ratify the Protocol. This article will provide both arguments for and against ratification of the Optional Protocol.
AfricLaw 