Coalition for the International Criminal Court (CICC) Questionnaire to ICC Judicial Candidates 2009 Elections

Transcription

1 Coalition for the International Criminal Court (CICC) Questionnaire to ICC Judicial Candidates 2009 Elections Please reply to some or all the following questions as comprehensively or concisely as you wish Name: Joyce ALUOCH Nationality: KENYAN Nominating State: KENYA List: A or B: List A Background: 1. Why do you want to be a judge at the ICC? Serving as a Judge at the ICC will give me an opportunity to make contribution to world peace in a number of ways for example, bringing to justice those who commit offences against humanity including recruitment of child soldiers, rape etc. I have a lot of experience in the preservation and protection of children including war affected children and I am currently implementing a law addressing gender based violence in the country. 2. What do you think will be the biggest challenges facing you as an ICC judge? On the face of it I do not foresee any big challenges. However a possible challenge may be adapting to other legal systems, but this I would overcome easily because of my vast experience. 3. What do you believe are currently some of the major challenges facing the Court and what do you believe will be some of the major challenges in the coming years? A major challenge currently facing the court as I see it is the fact that it does not have the capacity to effect its own warrants of arrest once issued, but relies on state parties to effect them. A case in point is that of Joseph Kony; leader of LRA Uganda and his associates for whom warrants were issued about four years ago but are yet to be executed. You may send your completed questionnaire by to punyasena@iccnow.org; by fax to or by mail to: Coalition for the International Criminal Court 708 Third Avenue, 24 th floor New York, NY 10017, USA

2 A future challenge I foresee the court facing is exercising its jurisdiction over countries which have not ratified the Rome Statute. The ICC has recently indicted President Omar Hassan el Bashir of Sudan a sitting Head of State which is yet to ratify the Rome Statute. This indictment has been opposed by most member states of the African Union. The challenge is in how the court will bring this matter to a conclusion without losing credibility. Other continuing challenges include the Courts ability to interest new members into ratifying the Rome Statute, given that the terms of the two United Nations Tribunals in Yugoslavia and Arusha (Rwanda Tribunal) are soon to conclude. Being proactive in defining what constitutes war crimes so as to look out for them is another challenge. 2 List A or B Criteria: While this question is relevant to either list A or list B candidates, we know that some candidates have competence that would qualify for both lists. Candidates with competence in both criminal and international law should feel free to answer any question in 4 a) or 4 b) to give the reader a more complete view of their background and experience. 4 a) For candidates on list A: - How would you describe your competence in criminal law and procedure? I have over twenty years experience in adjudicating over criminal law cases applying criminal procedure. This experience has been progressive from Magistracy (1974) to the High Court and Court of Appeal (2008). I have contributed widely to case law most of which are reported in the East African and Kenya Law Reports. I have written and presented papers on criminal law and procedure to magistrates and judges both nationally and internationally. - How would you describe your experience as judge, prosecutor, counsel, or in another similar capacity, in criminal proceedings? My experience as a judge is exemplary. I am currently the only woman judge serving in the Court of Appeal, which is the highest Court in Kenya. Prior to that, I was the second woman to be appointed a High Court judge and a magistrate in Kenya. My experience as a judge earned me a judicial certificate of merit 2007, awarded by the Chief Justice. Again, in recognition of my experience, the Chief Justice recently appointed me the Vice Chairperson of the Judicial Curriculum Review Committee to draw up the curriculum for the newly established Judicial Training Institute where judicial officers will be trained in among others, criminal law and procedure. 4 b) For candidates on list B: - How would you describe your competence in relevant areas of international law, such as humanitarian and human rights law? You may send your completed questionnaire by to punyasena@iccnow.org; by fax to or by mail to: Coalition for the International Criminal Court 708 Third Avenue, 24 th floor New York, NY 10017, USA

3 I have both knowledge and expertise in humanitarian and human rights law, serving as a Vice Chair and member of the United Nations Committee on the Rights of the Child and as Chair of the African Union Committee of Experts on the Rights and Welfare of the Child, where I have applied human rights law in considering state party reports at the Committee sessions in Geneva. This I have done for the past six years internationally and for four years at the African Union in Addis Ababa, Ethiopia. In recognition of my service to the country in these human rights committees I was awarded a national honor, the Elder of the Burning Spear, (EBS) by the President of the Republic of Kenya. In applying humanitarian law, I have served as a Judge of the International Tribunal for War Affected Children and collected views of such children from Ireland (but sitting in England) and Bosnia-Herzegovina. Whilst serving as the Chairperson of the African Committee on the Rights of the Child I conducted a mission to the war torn Northern Uganda to assess the effect of the twenty year old war on children and reported back to the African union for their action. The above experiences show my competence in areas of international law such as humanitarian and human rights law. - How would you describe your professional legal experience that is of relevance to the judicial work of the Court? As already stated, I have served as a judge exercising criminal jurisdiction for over twenty years. Nomination Process: 5. What are the qualifications required in your nominating State for appointment to the highest judicial offices? How do you meet these qualifications? Experience and competence determine progression within the judicial system in Kenya. I am currently serving in the Court of Appeal which is the highest court in the country. This means that I meet the qualifications required for appointment to the highest judicial office. 6. Article 36 of the Rome Statute provides for two possible nomination procedures. Please describe in detail the procedure used for your nomination. Originally and in an effort to meet the nomination deadline, the government forwarded one name of a Kenyan national. Subsequently the deadline for nomination was extended and the government took the opportunity and applied the procedure laid down under Article 36 of the Rome Statute in nominating a candidate. A list of about six possible candidates was considered, and after consultations I was nominated. 7. Have you provided the statement required by article 36(4) (a) of the Rome Statute and by the nomination and election procedure adopted by the Assembly of States Parties? If not, why not? Yes I have and the Government forwarded it to the ICC through the Kenya mission in New York. You may send your completed questionnaire by to punyasena@iccnow.org; by fax to or by mail to: Coalition for the International Criminal Court 708 Third Avenue, 24 th floor New York, NY 10017, USA 3

4 4 Legal System and Language Abilities: 8 a) Which legal system does your country belong to? Do you have knowledge or experience working in other legal systems? My country belongs to the Commonwealth law system. Serving in both international and regional committees and as a judge in the international tribunal for war affected children, I have gained knowledge and experience working with other legal systems. 8 b) What difficulties do you envision encountering working with judges from other legal systems? How would you resolve such difficulties? As a judge of the international tribunal for war affected children I served with judges from countries applying legal systems other than the commonwealth legal system. I therefore have experience in that respect. I do not anticipate difficulties serving with judges from other legal systems as I have already undergone that experience and I am therefore open minded and ready to accommodate views and experiences of judges from other jurisdictions. 9 a) What is your knowledge and fluency in English, if it is not your native language? Do you have experience working in this language? English has been my language of instruction my English is therefore very good. English is also the working language of the High Court where I have served for over twenty years and the Court of Appeal in Kenya. 9 b) What is your knowledge and fluency in French, if it is not your native language? Do you have experience working in this language? My French knowledge is basic. However I am currently attending French lessons in an effort to improve my skills. Expertise and Experience: 10. Please explain your qualifications for this position. What aspects of your career, experience or expertise outside your professional competence do you consider especially relevant to the work of an ICC judge? I have a Master of Arts degree in International Affairs (GMAP) from the Fletcher School of law & Diplomacy, Tufts University Medford, MA, USA. I graduated in July I also have a Bachelors of Laws (LL B) degree from the University of Nairobi and a Post Graduate Diploma in Legal Studies from You may send your completed questionnaire by to punyasena@iccnow.org; by fax to or by mail to: Coalition for the International Criminal Court 708 Third Avenue, 24 th floor New York, NY 10017, USA

5 the Kenya School of Law. I have been admitted to the Bar in Kenya as an Advocate of the High Court of Kenya. The position of a judge of the ICC being an international assignment, I have experience in working within international setting. I am a Director of the International Association of Women Judges based in Washington DC, I also served, as the first African Director of Olave Baden Powell Society (international girl guiding ), whose headquarters is in London, Great Britain Do you have any specific legal expertise, including, but not limited to, violence against women or children? Yes. As a High Court judge I established the family division of the High Court of Kenya and simplified the procedure for litigation to enhance access to justice. In conjunction with the International Association of Women Judges, I have trained judges and magistrates in jurisprudence of equality program (JEP); a program designed for the sensitization of judicial officers on issues of human rights of women. Currently as a Court of Appeal judge I am the Chairperson of the national Task Force on the implementation of the new Sexual Offences Act, and have developed Regulations for the implementation of the Act by the courts, police investigators, police prosecutors and the medical and forensic personnel. As a member of the UN Committee on the Rights of the Child and the African Committee on the Rights of the child, I have protected and promoted the rights of children as laid down in the international and regional statutes. My service in these various capacities has enabled me to gain specific legal experience in violence against women and children. 12. Historically, many of the grave abuses suffered by women in situations of armed conflict have been marginalized or overlooked. a) What experiences have you had dealing with crimes of sexual and/or gender based violence? I am currently implementing the new Sexual Offences Act, which addresses gender based violence ranging from rape, gang rape, defilement, child pornography, child sex tourism, child prostitution, trafficking for sexual exploitation, incest and sexual harassment, only mention a few. Apart from this I have over the years adjudicated criminal law cases of sexual and gender based violence. b) Are there situations or cases in the past where you believe you have applied a gender perspective, i.e. inquired into the ways in which men and women were differently impacted? If so, to what effect? Yes, in cases of division of matrimonial property in the High Court where we do not have specific legislation in place, I have applied a gender perspective to ensure fair distribution of property to both parties. You may send your completed questionnaire by to punyasena@iccnow.org; by fax to or by mail to: Coalition for the International Criminal Court 708 Third Avenue, 24 th floor New York, NY 10017, USA

6 6 c) Are there situations where you did not analyze the different impacts of a situation on women and men but on reflection now think such an analysis would have been appropriate? No, I cannot think of any such situation. 13. Victims have a recognized right to participate in ICC proceedings and to apply for reparations under Article 75. What experience relevant to these provisions do you have? The new Kenya Sexual Offences Act makes special provisions for protection of vulnerable witnesses in criminal proceedings without exposing them to further abuse or harassment. This aims at protecting their right of participation. Vulnerable witnesses under the Act have been defined to include victims of sexual offence, children and persons with mental disabilities. The Act also provides further protection for such witnesses by allowing them to give evidence through an intermediary. The purpose of developing the Regulations was to ensure compliance with these provisions by the courts, prosecutors and investigators. Having developed the Regulations I have relevant experience in protecting victims of sexual offences. 14. Did you help advocate for the adoption of human rights or international humanitarian law treaties or other instruments? Please describe your experience. I actually train judges and magistrates to apply humanitarian and human rights laws. I was also a member of the Task Force that was reviewing laws relating to women for the better protection of women in line with international standards. I was involved in the process of the development of the Children Act, 2001 which domesticated the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. In this way I advocated for the adoption of human rights and humanitarian law in Kenya. 15. Have you served on the staff or board of directors of human rights or international humanitarian law organizations? Please describe your experience. I am a serving member of the UN Committee on the rights of the child until January For the period I was the Chairperson the African Committee on the Rights and Welfare of the Child. Serving in these international committees, part of which is to consider state party reports on their implementation of the rights of children, I gained experience which enables me to do my work effectively especially in areas of gender based violence and also to promote domestic application of these statutes. You may send your completed questionnaire by to punyasena@iccnow.org; by fax to or by mail to: Coalition for the International Criminal Court 708 Third Avenue, 24 th floor New York, NY 10017, USA

7 7 16 a) Please provide us with a list of your writings and opinions relevant to evaluating your experience. My writings include:- Protecting the Rights of Child Soldiers - a key note address to the Great Lakes Conference organized by the Coalition to stop the use of child soldiers. Securing the Rights of Children using Human Rights Principles paper delivered at the Family Law Conference in Cape Town South Africa A report on the fact-finding mission of the war- torn northern Uganda A report prepared for the African Union after the Mission to the Northern Uganda The Plight of Girls and Women in Africa A publication prepared and presented at the African Child Policy forum in Addis Ababa Ethiopia. Discrimination against Children in Africa paper delivered at an International Conference in Belfast, Ireland Children, HIV/AIDS and the Law paper delivered at an International Conference of the YWCA Council in Nairobi Kenya Practice Meets Policy & the Law: Implementation of Sexual Offences Act No. 3 of 2006 (Kenya). A paper delivered at the 9 th Biennial Conference of Women Judges in Panama City, March Recruitment and use of child soldiers in Uganda and Mozambique: A comparative analysis (GMAP) Masters Degree Thesis, Fletcher School of Law and Diplomacy, Tufts University. Challenges in the Interpretation of the Constitution of Kenya and the Application of the Constitution (Supervisory Jurisdiction and Enforcement of the Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules 2006, a paper presented at the 2008 Judges Annual Colloquium. 16 b) Please provide us with an electronic copy of any writing or opinion describing your experience as outlined in questions 1a), 1b) and 5. You may send your completed questionnaire by to punyasena@iccnow.org; by fax to or by mail to: Coalition for the International Criminal Court 708 Third Avenue, 24 th floor New York, NY 10017, USA

8 8 My opinions are in my many judgments, some of which I hereby forward to you together with some of my writings. Other matters: 17. Have you ever resigned from a position as a member of the bar of any country or been disciplined or censured by any bar association of which you may have been a member? If yes, please describe the circumstances. My answer is No. 18. Have you ever been found after an administrative or judicial hearing to have discriminated against or harassed an individual on the grounds of actual or perceived age, race, creed, color, gender, sexual orientation, religion, national origin, disability, marital status, socioeconomic status, alienage or citizenship status? If yes, please describe the circumstances. My answer is No. 19. It is expected that a judge shall not, by words or conduct, manifest or appear to condone bias or prejudice, including, but not limited to, bias or prejudice based upon age, race, creed, color, gender, sexual orientation, religion, national origin, disability, marital status, socioeconomic status, alienage or citizenship status and shall require staff, Court officials and others subject to his or her direction and control to refrain from such words or conduct. a) Do you disagree or have difficulty with this expectation? I agree and have no difficulty with this expectation. b) How will you be able to meet this expectation? I will meet this expectation by respecting other people s views and being sensitive to their needs. This is what I do in my every day life. 20. Article 40 of the Rome Statute requires judges to be independent in the performance of their functions. Members of the CICC and governments are concerned about the difficulties judges might experience in interpreting articles of the Rome Statute where their government has already expressed an opinion. a) Do you expect difficulties in your taking an independent position? No. I do not expect any difficulty whatsoever. As a judge I have taken an oath to serve independently without fear, favor, ill will or affection. I am guided by the terms of this oath in my day to day duties as a judge. I will maintain this as a judge of the ICC when elected. b) Would you be able to judge impartially whether an investigation by your government was genuine? Yes. Because I would be guided by the oath of office which I shall have taken. As a serving judge there are times that I have made decisions that were not favorable to the government because I was applying the law. To me this shows an independence of mind which I will continue to exercise. You may send your completed questionnaire by to punyasena@iccnow.org; by fax to or by mail to: Coalition for the International Criminal Court 708 Third Avenue, 24 th floor New York, NY 10017, USA

9 9 21. A judge is expected to be on the bench or otherwise handle legal matters for at least seven hours per day, five days per week, and at times a judge s responsibilities may require him or her to be on the bench or at work into the evenings and on weekends. Do you expect to be able, now and in the foreseeable future, to perform these tasks on your own or with reasonable accommodation? If no, please describe the circumstances. As a serving judge I am already used to working very long hours, and then , five days a week. Over and above that I create time to do my own research, and I am also used to working after hours because I spend most of the day adjudicating over cases in court. I will therefore be able now and in the foreseeable future to perform these tasks on my own with reasonable accommodation. 22. Do you know of any factors that would adversely affect your ability to competently serve as a judge, to comply with a judge s ethical responsibilities, or to complete the day-to-day responsibilities that a judge is required to assume? If yes, please explain. I do not know of any factors that would adversely affect my ability to competently serve as a judge and comply with judges ethical responsibilities. Having served as a judge for over twenty years I am aware of the responsibilities that come with the position and I am confident that when elected judge of the ICC, I will serve to the best of my ability, God being my helper. Thank you. You may send your completed questionnaire by to punyasena@iccnow.org; by fax to or by mail to: Coalition for the International Criminal Court 708 Third Avenue, 24 th floor New York, NY 10017, USA

10 CHALLENGES IN INTERPRETATION OF THE CONSTITUTION AND THE APPLICATION OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND ENFORCEMENT OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2006 PAPER PRESENTED BY HON. LADY JUSTICE JOYCE ALUOCH, JUDGE OF APPEAL, AT THE JUDGES COLLOQUIUM ON 21 st AUGUST, Introduction May I thank his Lordship the Chief Justice for giving me an opportunity to make this presentation. I also thank the Kenya Women Judges Association for their contributions and input into this presentation as I drew a lot of insight from its members. In this way, our Association has proved that we are always keen to make contribution on crucial challenges that face us as Judicial Officers. The Judiciary has the unenviable but legitimate task of interpreting, pronouncing and ensuring that the rule of law and Constitutionalism is upheld. The doctrine of the separation of powers divides the institutions of government into three branches: Legislative, Executive and Judicial. The Legislature makes the laws; the Executive puts the laws into operation; and the Judiciary interprets the law. The doctrine can be extended to enable the three branches to act as checks and balances on each other thus ensuring the rule of law and protection of individual rights. This is very important, as the

11 efficient balance of power is the root of any well-ordered, stable democracy. The 18 th Century French philosopher, Montesquieu, said; When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty and M. V. Pylee in his article Constitutions of the World 1 said, The Constitution is the creation of a sovereign act and the result of extraordinary legislation direct from the people acting in their sovereign capacity enabling a government structure to be set up, laying the methodology and extent of the distribution of its powers; the methods and principles of its operation as well as embracing the spirit of a nation. Historical Background This presentation will deal mainly with the application of the High Court Practice and Procedure Rules, 2006 popularly referred to as the Gicheru rules and hereinafter referred to as such. These rules replaced what was popularly referred to as Chunga rules promulgated in Before these rules were enacted, there were no rules of procedure on the application of the fundamental rights. I will however examine some historical developments of the application and interpretation of the fundamental rights by the courts. Generally it can be said that the Courts have been willing to 1 Universal Law Publishing C Pvt. Ltd at page x. 2

12 uphold the fundamental rights and free and fair trial as guaranteed by the Constitution. Before 1997, the Court of Appeal had no jurisdiction in as far as Constitutional matters were concerned. The highest a Constitutional matter could go was the High Court. The Constitution of Kenya (Amendment) Act, 1997 changed this position. Section 10 thereof provided: Section 84 of the constitution is amended by inserting the following new subsection (7) after subsection (6)- A person aggrieved by the determination of the High Court under this section may appeal to the Court of Appeal as of right The courts have used two schools of Constitutional interpretation, the broad liberal way and the technical, narrow manner commonly referred to as the El Mann doctrine. The court in El Mann v. Republic [1969] EA 357 took the view that whereas in certain contexts a liberal interpretation may be called for, a Constitution is to be construed in the same way as any other legislative enactment, and that is, where the words used are precise and unambiguous, they are to be construed in their ordinary and natural sense. Constitutional Interpretation The trend with Constitutional interpretation was set in the classic case of Stanley Munga Githunguri Vs R (1986) KLR1. In that case, a bench mark was set when the Constitutional court decided that the court may in the exercise of its inherent power; stop a delayed criminal prosecution where the delay is so long as to constitute the prosecution being both vexatious and an abuse of the process of the court. The Constitutional Court said: 3

13 We are of the opinion that to charge the applicant four years after it was decided by the Attorney General of the day not to prosecute, and thereafter also by neither of the two successors in office, it not being claimed that any fresh evidence has become available thereafter, it can in no way be said that the hearing of the case by the court will be within a reasonable time as required by section 77(1). The delay is so inordinate as to make the nonaction for four years inexcusable. The trend set by the Githunguri case has continued and the courts have been progressively liberal in upholding the fundamental rights. However there are a few set backs in a handful of cases. For example in the case of Koigi Wa Wamwere vs. the Attorney General High Court Misc. Appl. No. 574/90, a Constitutional court dealing with a breach of the presumption of innocence as provided for in section 77(2) of the Constitution said that the right is accorded to a person who is charged with a criminal offence and not operative outside the criminal process. Quite clearly therefore the entity that is required to presume the accused innocent must be the court trying him. It cannot be another entity or indeed public officials With the progressive liberalism, the restrictive approach can now be said to be water under the bridge. The courts have now come out strongly in defence of the fundamental rights. In the case of Crispus Karanja Njogu v Attorney General, High Court Misc. Application No. 30 of 2000 (unreported), the court was of the view that the Constitution should not be interpreted as an ordinary Act of Parliament. The court held that the Constitutional provisions ought to be interpreted in a broad, liberal manner to give the values and inspirations of the people and not in a pedantic or restrictive manner. In Njoya 4

14 & 6 Others V Attorney General & 3 others [2004] KLR 261 (the Referendum case) and in Patrick Ouma Onyango & 12 Others V Attorney General & 2 Others [2005] eklr, the court reiterated the same principle of interpretation of the Constitution. CHALLENGES TO CONSTITUTIONAL INTERPRETATION Under the Gicheru Rules jurisdiction for the interpretation and application of the Constitution of Kenya is vested in the High Court, out of the procedure and format of instituting and prosecuting a constitutional matter, as envisaged in the Gicheru Rules may be complex to the ordinary citizen who acts for himself/herself. This may lead to the dismissal of a suit on technicalities thus denying an otherwise legitimate claim from being adjudicated upon on its merits. The Gicheru Rules provide that an application under section 84 of the Constitution shall be by way of an Originating Notice of Motion which is as set out in Form A of the Rules. The Motion shall state the concise grounds for the application and shall be supported by the applicant s affidavit. When the Motion is filed, the Registrar is supposed to place it before a Judge for directions within seven days. The High Court is given powers under section 65(2) of the Constitution to move on its own Motion. It is also given powers to deal with references from the subordinate courts. Where a party in a subordinate court alleges that there is a question regarding the interpretation of the Constitution, the party may request the presiding officer to refer the question to the High Court. (See Form C of the Rules), and the subordinate court shall refer the matter to the High Court within 14 days, stating concisely the issues for determination. The Registrar shall place the matter before the Chief Justice within seven days of receipt, and the Chief Justice shall constitute a bench in accordance with the provisions of section 67(3) of the Constitution unless there is an interlocutory matter in the reference, in which case the Registrar shall place the matter before a Judge for determination. 5

15 Where it is alleged that there is contravention of fundamental rights and freedoms (section 70 83) an application shall be made directly to the High Court by way of a petition as set out in Form D of the rules. The documents to accompany the petition to be filed are to be found in the Rules. 1. Challenges in the Criminal Jurisdiction Currently the courts have been faced with many challenges regarding the interpretation of what constitutes a fair trial as provided under section 72 (3)(b) and section 77(2)(f) of the Constitution. 1. (a) Section 72 (3)(b) of the Constitution In the case of Albanus Mwasia Mutua vs. Republic Criminal Appeal No. 120 of 2004 (unreported) the appellant was brought before the trial Magistrate some 8 months from the date of his arrest and no explanation was offered. The Court of Appeal in discharging the appellant on a second appeal held that the police had the constitutional burden of giving an explanation for the delay. In a recent judgment of the Court of Appeal in the case of Paul Mwangi Murunga vs. Republic, Criminal Appeal No. 35 of 2006 (unreported), the appellant was held in police custody for some 24 days and no explanation was offered either from the record or from the prosecution. The Court in allowing the appeal set some guiding principles to be followed in determining what constitutes reasonable delay, and stated: It may be that upon arrest and on being taken to the police station the accused person fell ill, was taken to hospital and was admitted and kept there in excess of the period allowed. Or it may be that the accused person was arrested on a Friday evening and 6

16 as our courts do not work on weekends and it being not possible to release the accused on bail, he is brought to court on the next working day. Or it may be that the courthouse is far from the police station and the station vehicle broke down or had no fuel So long as the explanation offered is reasonable and acceptable, no problem would arise. Again the court might well countenance a delay of say one or two days as not being inordinate and leave the matter at that. 1. (b) Section 77 (2)(f) of the Constitution Regarding language used during the trial proceedings, the Court of Appeal has held that the record should specifically show the language used and the interpretation made to the accused person and whether the accused understood or appeared to understand the language. The Court held further that it cannot be assumed that merely because an accused person participated in the trial he understood the language used. See Simbauni Simiyu vs Republic eklr Expanding the scope of remedies for breach of human rights The other challenge which has arisen in criminal jurisdiction is the issue of award of damages for breach of human rights as provided for under section 72(6) of the Constitution. That section provides: A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefore from that other person. 7

17 The High Court under section 84 (2) of the Constitution is authorized: to make such orders, issue such writs and give such directions as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions of section 70 to 83 (inclusive) The State has maintained that the persons aggrieved by their prolonged detention should file suits for the remedy of compensation rather than seek for acquittal. Lawyers from the State Law Office have argued that acquitting accused persons on the ground that they have been held for a period longer than the period allowed under the Constitution runs against other provisions of the Constitution and they are therefore of the view that it is more appropriate for accused persons to seek compensation in the form of damages. And indeed in some cases, aggrieved persons have successfully filed civil cases for damages for violation of section 72 of the Constitution aforesaid. The leading judicial exposition on whether the High Court can award damages is in the case of Marete v Attorney General (1987) KLR 690, where the plaintiff who had worked with the Ministry of Agriculture and Livestock for 13 years was accused of disloyal behavior in the aftermath of an attempt by a section of Kenya s Armed Forces to overthrow the government on 1 st August, 1982, and was purportedly dismissed even though he was not allowed to leave his station. The High Court found this to be contravention by the state of the protective provisions of the Constitution and awarded damages. The court observed: The Constitution of this Republic is not a toothless bulldog nor is it a collection of pious platitudes. It has teeth and in particular these are in Section 84. Both section 74 and 84 8

18 are similar to the provisions of other Commonwealth Constitutions. It might be thought that the newly independent states who in their Constitution enacted such provision were eager to uphold the dignity of the human person and to provide remedies against those who wiled power. Subsequently in Dominic Arony Amolo v Attorney General, High Court Misc. Civil Case No.494 OF 2003, (unreported) the applicant was able to establish before a Constitutional court that his rights had been breached by being detained in prison for a longer period. He was awarded damages of Ksh. 2.5 million. In Charles Lekuyen Nabri and 9 Others vs. the Hon. Attorney General and 3 Others Constitutional Petition No. 466 of 2006 (known as Mathenge case, or a Case of toothless Goat ). A Constitutional court by a majority decision, expanded the meaning of right to life under section 70(a) of the Constitution and held: In conclusion I will boldly state that the right to life including the right to live with human dignity would mean that the existence and continuance of such right up to the end of natural life. Taking any lesser interpretation will be an affront to the dignity of human life and any limitation to enjoy the right to live would be derogation of the most fundamental right of any human being and I do hold so. In short the court declined to take a restricted interpretation of right to life under section 70(a) of the Constitution to deprivation of life intentionally save in execution of a sentence 9

19 of a court in respect of a criminal offence as provided in section 71(1) of the Constitution. The leading judicial decision in the Commonwealth on the nature and scope of compensation for the breach of the Bill of Rights is that of Lord Diplock, delivering the majority opinion, in Maharaj v Attorney General of Trinidad and Tobago (No 2) where he remarked: What then was the nature of the redress to which the appellant was entitled? Not being a term of legal art it must be understood as bearing its ordinary meaning which in the Short Oxford Dictionary is given as: Reparation of satisfaction or compensation for, a wrong sustained or the loss resulting from this. At this time of the original notice of motion the appellant was still in prison. His right not to be deprived of his liberty except by due process was still being contravened; but by the time the case reached the Court of Appeal he had long ago served his seven days and had been released. The contravention was in the past; the only practicable form of redress was monetary compensation. Another notable case is Simpson & Anor v Attorney General (Baigent s Case) where the New Zealand Court of Appeal followed the Maharaj decision by holding that the applicant had a cause of action for breach of rights guaranteed by the New Zealand Bill of Rights Act 1990, which was not an action in tort. Cooke P emphasized that the remedy was a constitutional public law remedy and not a common law one: 10

20 The [Maharaj] analysis has procedural consequences of practical importance. As Casey J points out, the question of the appropriate remedy, among the range available, for a particular case clearly does not lend itself to determination by a jury. It is naturally the responsibility of a Judge. Further, it seems to me that monetary compensation for breach of the Bill of Rights is not pecuniary damages within the meaning of the Judicature Act 1908, s 19A. That section is referring to common law damages, not public law compensation. This is more than a fine point as to the meaning of damages... In the United Kingdom, the Human Rights Act 1998 provides citizens of the United Kingdom with important protections of their rights as enumerated under the European Convention on Human Rights ( the Convention rights ) and includes damages as compensation for the violation of the rights. It is prudent to note that the Constitutions of most Commonwealth countries containing similar Bills of Right are linked with provisions for compensation for their breach. This is lacking in our current Constitution. The Bomas draft 2005 under Article 33 provided for compensation against the State or any other person, for the infringement of the Bill of Rights. 3 (a). The concept of anticipatory bail Another challenge that the courts have been faced with is whether under section 84(1) and (2) of the Constitution it can grant anticipatory bail. See Samuel Muciri W Njuguna vs. Republic Misc. Cr. Appeal No. 710 of 2001 in KLR

21 Even though in our legislation anticipatory bail has not been provided for, the courts in the W Njuguna case (supra) envisaged the right of anticipatory bail, by giving a wider interpretation to section 84(2) of the Constitution by stating: when a person is constantly harassed or is in fear of unjustifiably being arrested, he has a right to recourse to the protection of the Constitution - it would be indeed a tragedy if the Constitution did not provide remedy to a citizen whose fundamental rights are infringed. 3 (b). Bail for minors charged with capital offences An interesting issue arose in the case of Republic vs. Susan Akoth Opiyo H.C.Cr.C No. 236 of 2003, as to whether a minor charged with the offence of murder can be granted bail under section 72(5) of the Constitution which stipulates that a person charged with an offence punishable by death cannot be granted bail. The court took into account the provisions of the Children Act 2001, and Section 25(2) of the Penal Code which bar the imposition of death sentence to minors. The court found that although the minor was charged with the offence of murder and under section 72 (5) of the Constitution he could not be granted bail, the Children Act did not allow the court to impose a death sentence against a minor. The court observed that section 72(5) of the Constitution does not come into operation so far as a minor offender is concerned, and therefore the court granted bail to the minor. 3. (c) Possible Challenges under the Sexual Offences Act The following provisions of the Sexual Offences Act may pose Constitutional challenges to a fair trial. 12

22 The issue whether section 31 of the Sexual Offences Act which provides for vulnerable witness to be cross-examined through an intermediary deprives the accused person of his rights under section 77(e) of the Constitution which requires an accused person to be accorded facilities to examine in person or through legal representative the witnesses called by the prosecution and sections 62 and 63 of the Evidence Act, which requires all facts except contents of documents to be proved by oral evidence. The protection accorded to the evidence of a child witness in sexual offences, under the proviso to section 124 of the Evidence Act (whereby the court may accept such evidence for reasons to be recorded, without the need for corroboration), appears to be inconsistent with section 31(10) of the Sexual Offences Act, where it is provided that, a court shall not convict an accused person under this Act, solely on the uncorroborated evidence of an intermediary. The Act is also silent on who has the jurisdiction to enhance sentences under sections 3(3), on conviction for rape where the minimum sentence is not less than ten years but may be enhanced to imprisonment for life, and section 5(2), on sexual assault, with a similar penalty and rape, and section 10 on gang rape, where upon conviction, an accused is liable to imprisonment for a term not less than fifteen years, but which may be enhanced to imprisonment for life. 4. Nolle prosequi The issue of whether the Attorney General has the absolute power to enter nolle prosequi under section 26(3) of the Constitution and 82 of the Criminal Procedure Code is the other challenge which has been faced by the courts in case of Crispus Karanja Njogu vs. Attorney General Misc. Cr. App No. 36 of 2000, the court rejected the notion that the Attorney General has an absolute power to enter nolle prosequi. The court held: 13

23 despite the provisions of section 26(8) of the Constitution, the powers of the Attorney General under section 26(3) of the Constitution is subject to the jurisdiction of the High Court by virtue of section 123(8) of the Constitution. The court further held that the exercise of the discretion to enter a nolle prosequi should meet the test of constitutionality, otherwise the court can intervene under section 123(8) of the Constitution and declare such nolle prosequi unconstitutional, null and void. A similar approach was taken by the High Court in the case of Gregory & Another vs. Republic through Nottingham & two others 2004 I KLR 547. CHALLENGES IN THE INTERPRETATION OF UNDAMENTAL RIGHTS In the recent past the courts have been faced with issues touching on the Rights and Freedoms of individuals. In RM & another v Attorney General [2006] eklr there were several issues that arose for the Court s determination. One issue was whether under section 24 (3) of the Children Act, the vesting of parental responsibility in the first instance on the mother of the child excluding the father amounted to discrimination. The court was also asked to consider whether the classification of children born in and out of wedlock was in contravention of the Constitution. The court held that in its view the Legislature had provided for all possible situations in order to address the aims of parental responsibility and declined to declare the provisions of the Children Act unconstitutional. It is worth noting that had the question of parental responsibility been squarely addressed in the Constitution as 14

24 was attempted by Section 41 (5) of Bomas Draft Constitution (which donated equal parental responsibility to the father and mother of the child whether or not they were married at the time of the child s birth) the court might have come to a different conclusion. In case of Rangal Lemeiguran & Others v Attorney-General & others [2006] eklr the court deliberated on the question of adequate and effective representation of special interest groups such as indigenous groups and persons with disabilities. This case related to an application brought by the IL Chamus Community under the provisions of section 84 (1), 1, 1A and 33 of the Constitution of Kenya against the Attorney-General (on behalf of the Government of Kenya as its principal legal adviser), and the Electoral Commission of Kenya (as the body charged with the creation and distribution of Constituencies under the Constitution). The IL Chamus Community prayed, inter alia, for a declaration that the statistical chance of an IL Chamus candidate being successful as a Member of Parliament in the present Baringo Central Constituency is in practice so minimal as to effectively prevent any such membership of Parliament by such candidate for the foreseeable future, (as it has been prevented in the past forty years). As a consequence thereof, the entitlement of the IL Chamus community to the fundamental rights of freedom of expression, and freedom of conscience protected under Section 70 of the Constitution of Kenya had been contravened. The Court concluded by saying: The principle of representation for special interest is not merely that persons be nominated by parliamentary parties but that, the person nominated do represent special interests. It is noted that parliamentary parties nominate those 15

25 who belong to their parties or philosophy of thought, their nominee must represent special interests whether the blind, trade unions, industry or religious groups. The court further held that parliamentary parties nominating persons to be appointed as nominated members under section 33 of the Constitution should in the future, apply the criteria of special interest as defined by the court. The available evidence shows that courts have been slow in declaring provisions of Acts of Parliament unconstitutional. The trend has been advising the legislature to amend the law. In the case of Mecal Limited vs Attorney General & 9 Others, in H.C. Misc. Application No. 1784/2004 a constitutional bench of the High Court seized the opportunity to declare section 17(2) of the Trade Dispute Act unconstitutional. In this case the court held that courts are undoubtedly guardians of the Constitution and the defenders of the Rule and Law and under section 65(1) of the Constitution, the subordinate courts shall have jurisdiction, subject to this Constitution. Section 17(2) of the Industrial Dispute Act, stipulates, The award, decision proceedings of the Industrial Court shall not be questioned or reviewed, and shall not be restrained or removed by prohibition, injunction, certiorari or otherwise, either at the instance of the Government or otherwise. Considering the above provision and the wider spirit and purport of Section 84 of the Constitution, the court obviously felt that the subsection is contrary to the provisions of the Constitution, and declared it unconstitutional under section 3 of the Constitution. 16

26 My last example on challenges in the Interpretation of Fundamental Rights is the proviso to sections 35(1) and 36(1) of the Law of Succession Act, Cap 160, Laws of Kenya, which stipulate that if the surviving spouse is a widow, her interest to the estate of her late husband shall determine upon her remarriage. A similar provision is not provided in respect of remarriage of a widower. This provision is discriminatory in my considered view because under the Constitution, the law should be applied equally to all persons irrespective of race, colour, creed, religion, sex etc. I would therefore pose the question, are we prepared to declare such provisions unconstitutional when faced with such challenges? APPLICATION OF INTERNATIONAL LAW IN THE DOMESTIC CONTEXT With regard to international law, the position taken by the courts is that international treaties have to be domesticated before they can be applicable within our borders. However the Court of Appeal in Rono v Rono & Another 2 departed from this trend of thought and said: There has of course, for a long time, been raging debates in our jurisprudence about the application of international laws within our domestic context. Of the two theories on when international law should apply, Kenya subscribes to the common law view that international law is only part of domestic law where it has been specifically incorporated. In civil law jurisdictions, the adoption theory is that international law is automatically part of domestic law except where it is in conflict with domestic law. However, the current thinking on the 2 [2005] KLR 538, See also Kenya Airways Corporation Limited v Tobias Oganya Ouma & 5 others [2007] eklr 17

27 common law theory is that both international customary law and treaty law can be applied by State Courts where there is no conflict with existing state law, even in the absence of implementing legislation. At this junction I should be pardoned if I delve into a very sensitive matter in the field of the Married Women s Property (Private Property) Act of 1882, and with due respect, I would like to comment on the Echaria vs Echaria s case (Civil Appeal No.750 of 2001-Peter Mburu Echaria vs Priscilla Njeri Echaria) As far as I understood the ratio decidendi of the case, the Court of Appeal relied on several English cases and found that a wife has to show direct or indirect Financial Contribution. The Court also relied on the fact that in England the matrimonial laws were amended to allow the courts to rely on other indirect contributions to the family by the wife and the court did not rely on resulting trust which largely governs disputes under the 1882 Act. However, no one can deny the fact that the social and cultural values prevailing in England, so far as the relation of a wife and husband and in that matter the whole family structure is concerned, are very different from the ones in our society where a wife is expected to perform all the chores ranging from cooking, cleaning, rearing babies etc. In addition some of the women also perform duties of being in gainful employment or in business. In my humble view, the concept of trust or resulting trust as regards landed property is different in Kenya from the one prevailing under the English Law. I wish to draw an analogy from the Registered Land Act and the Law of Succession Act in this respect in that in this country, we have a long tradition where the elder brother or a family member holds family land in trust for others. In those circumstances, there is no requirement that any of the family members for whom 18

28 the land is held in trust should have made direct or indirect financial contribution. One gets his/her share by just being a family member. Matrimonial property is obviously family property for family use. To tie it strictly to financial contribution may not be in line with our social and cultural structure. A wife, being a wife, always contributes towards the welfare, development, happiness and well being of the entire family without expecting any contributions or payment. By making these sacrifices, a wife has a legitimate expectation that she is entitled to a share of family properties. Before the Echaria s decision, the courts had made tremendous progress in upholding the property rights of a married woman without proof of financial contribution and without support of any Act of Parliament. The challenges to the courts in this respect are tremendous. Why should we regress as women cry out for justice? I would also submit that section 17 of the Married Women Property Act, 1882, is not strictly a procedural section because apart from providing procedure it further gives the court powers to make any order deemed fit. I would further like to draw an analogy to the wider definition of a wife under the Law of Succession Act, which includes a divorced or a separated wife. Another interesting point of law and public policy on land ownership and occupation by family members is a recent decision of Jane Wanjiru Kiarie & Another vs. Isaac Kiarie and another Nakuru H.C.C.C. No. 259 of 2002 where two adult daughters sued their father and step mother claiming a share of their father s land. The step mother threatened them with eviction. The court decided that the plaintiffs had a beneficial interest over their father s land which is also recognized under section 30(g) of the Registered Land Act as an overriding interest. The court further found that the plaintiffs who were daughters of the defendants have a 19

29 legitimate expectation to occupy the family land. Evicting the plaintiffs from their father s original land would be against the spirit of the Constitution that guarantees Fundamental Rights. CONCLUSION The administration of justice is essentially a service delivered by the state to the community in order to preserve social peace and facilitate economic development through the resolution of disputes, the enforcement of criminal and civil justice, and the determination of laws. Embracing the theme of this year s Colloquium which is Improving the Process of the Court, we should aim at improving the efficiency and accessibility of justice by simplifying and rationalizing laws and procedures; strengthening the independence of Judiciary; improving the administration of the courts; balancing the costs of justice; upgrading the physical facilities of the courts; improving legal education, training, and user perception of the legal system; expanding access to justice for the poor and other disadvantaged groups; enhancing the quality of the legal profession; providing alternative dispute resolution mechanisms; and strengthening the impact of court decisions on society at large. All these elements are interrelated, multidimensional and need attention over the medium and long term 3. We hope that we will all achieve these objectives. Thank you for your attention

30 Where Practice Meets Policy and the Law: Implementation of the Sexual Offences Act No.3 of 2006 Over the years, the reform of the law against sexual violence has been one of the most pressing areas for legal reform in Kenya. The need for law reform against sexual violence is informed by multifarious factors. The first is based on the idea of law reform, which dictates that the law be reviewed regularly to keep it in conformity with real life as expressed in changing social, economic, political and cultural trends. With time, the socio-economic order has changed, and so has the political and cultural trends, initiating adjustments in the institutions charged with the protection of the society against sexual violence. Secondly, it relates to the existence of laws, customs, practices and culture which have tended to impair the exercise of rights to equal protection of the law. The reform of the law was prompted by the need to not only to ensure equal protection of the law, but also the need to ameliorate subjective, discriminatory interpretation and implementation framework of laws against sexual violence. Part of this jurisprudence is also to respond to the developments in case law as well as international law, human rights and broader global developments some which demanded incorporation in national legislations. 1

31 It is indeed a matter of common observation that after a gale has raged at sea, when the tempest is spent and the winds are once more safely gathered into the fold, that great and unexpected waves constantly arise and roll with devastating violence against the neighbouring shores. The same phenomenon is true of human affairs. Kenya is reeling from the effects of post-election violence which saw a rise in the incidents of sexual violence, particularly against women and children. These immediate events might appear to have a share in what I have to say, but I will not proceed on that line. The enactment of the Sexual Offences Act, No.3 of 2006 was largely prompted by the rise in sexual violence. This was happening against a backdrop of a system that was slow, deficient or unwilling to redress the monster that sexual violence had become. The laws and administration of justice did not sufficiently address the issue. The unique characteristic of sexual violence makes it an issue that requires specific legal redress. Indeed the victims expect that the laws and institutions should protect them. However that expectation was not in the past met, at least to the standards required of the law, policy and practice. Before the enactment of the Sexual Offences Act, No.3 of 2006, the law on sexual violence in Kenya was spread over four different pieces of legislation, which complicated matters for victims, the police and the Judiciary. The 2

32 principal statute was the Penal Code, Chapter 63 Laws of Kenya. The offences were cobbled up in Chapter Fifteen, not as legal offences, but offences against morality, thus appearing to trivialize the seriousness of sexual violence. The offences in this Chapter included: Rape Abduction of women with intention to rape them Abduction of girls under the age of 16 Defilement of girls under 14 years Attempts to have unlawful carnal knowledge Defilement of imbeciles or idiots Procuration of girls or women under age of 21 years to have carnal knowledge Permitting defilement of a girl under 13 years Detention of women for immoral purposes Conspiracy to defile Incest Indecent assault Sodomy. Furthermore, poor prosecution and shoddy investigations of the cases invariably led to acquittals of sexual offenders. The deficiencies here were twin-pronged: the victims themselves would unknowingly destroy crucial 3

33 evidence, for example, by taking a bath after the ordeal. The police, on their part, were quite often hostile towards victims while reporting the commission of sexual offences at the police stations and did not have the requisite skills and knowledge of the preservation of the relevant evidence. The courtroom too, was not friendly to the victims. Many magistrates failed to clear the courtrooms when the victims were giving evidence, thus subjecting them to embarrassment and ridicule. This had the effect of intimidating the victims, thus stifling the presentation of crucial evidence. The judicial officers too had their share of blame once the case reached the stage of sentencing. There was disparity in sentencing even in cases arising from similar facts. The discretionary power granted to magistrates in sentencing meant that the ends of justice would in many cases, not be met. This caused public outcry! Kenya, like many countries worldwide, is facing new challenges, such as HIV/AIDS, developments in forensic medicine (DNA testing), which needed to be captured in developments in the law as they were not addressed before. We had to deal with this controversial issue of mandatory testing of HIV/AIDS patients in The issue had the potential of raising serious constitutional implications. Today, the Act is clear at section 26. 4

34 A brief Analysis of the Sexual Offences Act, No.3 of 2006 The Sexual Offences Act introduces new offences such as gang rape, child pornography, child prostitution, deliberate transmission of HIV/AIDS or any other life threatening disease, prostitution of persons with mental disabilities, child sex tourism and sexual harassment only to mention a few. It also introduces new concepts such as vulnerable witnesses and intermediaries through whom vulnerable witnesses could give evidence. The Act consolidates sexual offences under one statute. It also introduces minimum sentences, thus taking away a magistrate s discretion in sentencing. In some offences such as defilement, the age of the victim is factored in sentencing, For example, a conviction of a person on a charge of defilement of a child aged eleven years or less calls for a sentence of imprisonment for life. Where the victim is between the age of twelve and fifteen years, a conviction calls for imprisonment for a term of not less than twenty years. A term of imprisonment of not less than fifteen years would be imposed on a person convicted of defilement of a child between the age of sixteen and eighteen. The Act gives special protection to child victims, persons with disabilities and elderly persons. And for the first time the Act provides that upon conviction of an offender of a sexual offence, the court shall order that a sample or samples taken from the accused be tested for HIV or any other life threatening sexually transmitted disease. The further protection of victims is provided by 5

35 Section 40 of the Act which stipulates that it is only the Attorney who can discontinue police investigations and prosecutions into a sexual offence, once commenced. This rules out the possibility of reconciliations or settlements in sexual offences. Implementation To underscore the importance of this Act, the Government of Kenya through the Attorney General set up a taskforce for the implementation of the Act. The taskforce, which I chair, is mandated to prepare and recommend a National Policy Framework and Guidelines for the Implementation and Administration of the Act in order to secure accessible and uniform treatment of sexual offenders. It is also mandated to recommend to the Attorney General relevant regulations for the implementation of the Act, and to undertake the training of judicial officers, police investigators and prosecutors and so far, a police Training Manual has been developed. It is also part of our mandate to conduct public awareness and educate Kenyans on the provisions of the Act. The taskforce has so far developed Draft Regulations which will be subjected to public debate by the stakeholders as soon as they are finalized. One of our strategies for implementation is the setting up of crisis centres and safe houses for victims of sexual abuse. So far, I have officiated in the opening 6

36 of at least two safe houses and the US Government has pledged to assist the the taskforce in the development of such centres which will be operational on a 24hr basis. They have also expressed a commitment in providing training and equipment for the preservation of forensic evidence.by the police Conclusion The ideals and standards upon which we can all agree may not be so many at first; but, given an organization in which reason can assert itself, they will multiply and expand with the ever circling years. It is not important whether we have a law against sexual violence or a code of laws at the beginning. What is important is that we have made a beginning and have set up a framework in which a structure of law can be developed in a natural process of evolution as the sexually related offences which have preyed on our society are dealt with. Owing to time constraints, I will conclude with the words of George Washington: we have raised a standard to which the wise and honest can repair; the event is in the hands of God. Hon. Lady Justice Joyce Aluoch, Judge of Appeal, Kenya 7

37 Recruitment and Use of Child Soldiers in Uganda and Mozambique: A Comparative Analysis GMAP Thesis Defense 2008

38 Question of the thesis Why do we continue to have child soldiers despite the laws and enforcement mechanisms in place and a general understanding that the practice is unacceptable?

39 Uganda & Mozambique History of child soldiers intertwined with history of war in both countries Key participants are Mozambique Resistance Movement (RENAMO) The Lords Resistant Army (LRA) Uganda, Government forces

40 Mode of recruitment similar in both counties forceful abduction and kidnapping using extreme violence on children Once abducted, child soldiers are used to fight in the battlefield or as porters, laborers and girls mostly as cooks and sex slaves Children are recruited because they are easy to manupulate,obedient,fight well when trained, cheap to maintain

41 Law and enforceability League of Nations Charter of the United Nations established the United Nations The Convention on the Rights of the Child, plus its Optional Protocol ILO 182 The African Charter on the Rights and Welfare of the Child.

42 Law and enforceability (cont) Rome Statute Recent developments Created ICC Security Council Resolution 1460(recruitment of children in national armed forces or hostilities, a war crime) Indictment of Joseph Kony of LRA,Uganda Indictment of President Omar Hassan el Bashir, Sudan

43 Question of the Thesis once more With these set of laws in place, and the processes of enforceability, why has the problem of child soldiers persisted and where does the responsibility lie?

44 Recommendations and Way Forward Enactment of specific national legislations prohibiting the recruitment and use of child soldiers. Developing clear accountability mechanisms under the international statutes Awareness raising campaigns and capacity building exercise to sensitize citizens against the use of child soldiers Economic empowerment Establishing demobilization and reintegration programmes The need for political will to complement the laws and international standards.

45 Conclusion Caution to would be child soldier recruiters citing the example of Charles Taylor, former President of Liberia currently standing trial before the Special Court for Sierra-Leone (sitting at the Hague) for recruiting and using child soldiers

46 PROTECTION OF VICTIMS AND WITNESSES IN SEXUAL OFFENCES PRESENTATION BY HON. LADY JUSTICE JOYCE ALUOCH,JUDGE OF APPEAL AND CHAIRPERSON OF THE TASKFORCE ON THE IMPLEMENTATION OF THE SEXUAL OFFENCES ACT, 2006

47 Willingness of witnesses to give evidence is often central to justice and successful law enforcement. Indeed the provision of victim and witness protection is fundamental to the credibility of any justice system and to the battle against impunity

48 Experience shows that individuals will not be willing or available unless they have confidence that they will be protected, this is doubly true for sexual offence witnesses and victims

49 INTERNATIONAL STANDARDS WITH REGARD TO PROTECTION OF WITNESSES AND VICTIMS OF SEXUAL OFFENCES The right to physical and mental integrity and protection guaranteed to witnesses have been reaffirmed in the following international documents: Universal Declaration of Human Rights (arts. 3, 6, 7 & 12), International Covenant on Civil and Political Rights (arts. 6(1), 9, 16 & 19(2)), International Covenant on Economic, Social and Cultural Rights (arts. 9 & 12(1)), Convention on the Elimination of All Forms of Discrimination against Women (arts. 15(1), (2), (3) and (4)).

50 THE INTERNATIONAL CRIMINAL COURT The jurisprudence of this court has reinforced the status of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, when committed as part of a widespread or systematic attack directed against any y civilian population, with knowledge of the attack as crimes against humanity (Article 7 (1) (g) of the Rome Statute of the International Criminal inal Court). Protection of victims/ witnesses and their participation in proceedings is provided for in Article 68 of the Statute and states that, the Court C shall take appropriate measures to protect the safety, physical and psychological ogical well- being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors,, including age, gender as defined in article 7, paragraph 3, and health, and d the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children (Article 68 (1)).

51 INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY) AND THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR) Acts of sexual violence are within the jurisdiction of the ICTR and the ICTY. Rape is proscribed as a crime against humanity under Article 5(g) ) of the ICTY Statute and Article 3 (g) of the ICTR Statute. Several of the public indictments in the ICTY have brought charges alleging some form of sexual violence. A notable example is the Tadic Case which as the first trial held by the ICTY made several pronouncements on crimes of sexual violence. A ground-breaking decision in the ICTR is the Akayesu Case, where rape and other acts of sexual violence were recognised as crimes against humanity.

52 PROTECTION OF VICTIMS OF SEXUAL OFFENCES IN KENYA THE CONSTITUTION OF KENYA Section 77 of the Kenyan Constitution provides for the right to the secure protection of law. Subsection 10 stipulates that except with the agreement of all the t parties in the proceedings, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other adjudicating authority, including the announcement of the decision of the court or other authority, shall be held in public. Subsection 11 however provides that nothing in subsection (10) shall s prevent the court or other adjudicating authority from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court or other authority rity - (a) may by law be empowered to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests i of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned d in the proceedings; or (b) may by law be empowered or required to do in the interests of o defense, public safety or public order.

53 CRIMINAL PROCEDURE CODE Section 77 (1) of the Criminal Procedure Code specifies that the court shall be deemed an open court to which the public generally may have access, so far as it can conveniently contain them. The presiding judge or magistrate may order at any stage of the trial of any particular case that the public generally or any particular person shall not have access to or be or remain in the room or building used by the court. (Section 77 (2) of the Criminal Procedure Code)

54 PROVISIONS OF THE CRIMINAL PROCEDURE CODE BEFORE THE SEXUAL OFFENCES ACT CAME INTO FORCE Required the proceedings in the trial of cases involving offences of rape, attempted rape, defilement of girls under 16 years, incest by males and incest by females to be held in private and it was an offence for any person to publish or cause to be published by any means- (a) any particulars calculated to lead to the identification of the victim; or (b) any picture of the victim. A person who contravened the provisions of subsection (2) was liable on conviction- (a) in the case of an individual, to a fine not exceeding one hundred thousand shillings; and (b) in the case of a body corporate, to a fine not exceeding five hundred thousand shillings.

55 SEXUAL OFFENCES ACT Expanded the scope of persons to be protected to include the alleged victims in the proceedings pending before the court, children and persons with mental disabilities. Section 31 (1) of the Sexual Offences Act allows the Court handling the alleged commission of a sexual offence to declare a witness who is to give evidence in those proceedings a vulnerable witness, if such person is a victim of the alleged crime a child or a person with mental disability. The Court may declare one a vulnerable witness on its own initiative or at request of the prosecution or any witness other than a witness referred to in subsection (1) if the person is likely to be vulnerable on account of age; intellectual, psychological or physical impairment; trauma; cultural differences; the possibility of intimidation; race; religion; language; the relationship of the witness to any party to the proceedings; the nature of the subject matter of the evidence; or any other factor the court considers relevant. (Section 31 (2) of the Sexual Offences Act)

56 The court may, if it is in doubt as to whether a witness should be declared a vulnerable witness in terms of subsection (2), summon an intermediary to appear before the court and advise the court on the vulnerability of such witness. (Section 31 (3) of the Sexual Offences Act) Measures undertaken to ensure the protection of a witness declared as vulnerable are: directing that the proceedings may not take place in open court prohibiting the publication of the identity of the complainant or of the complainant s s family, including the publication of information that may lead to the identification of the complainant or the complainant s family.

57 It is an offence under section 31 (11) of the Sexual Offences Act for any person, including a juristic person, to publish any information regarding persons who have been declared vulnerable witnesses or to in any manner reveal the identity of such a witness. The offence is punishable by a term of imprisonment of not less than three years or to a fine of not less than fifty thousand shillings or to both, if the person in respect of whom the publication or revelation of identity was done is under the age of eighteen years and in any other case to imprisonment for a term of not less three years or to a fine of not less than two hundred thousand shillings or to both. Any juristic person convicted of the above offence shall be liable to a fine of one million shillings. (Section 31(12) of the Sexual Offences Act)

58 CHILDREN ACT No. 8 of 2001 Section 73 of the Act creates Children s s Courts whose jurisdiction is, inter alia, to hear civil proceedings on matters of Parental Responsibility, Children s Institutions, Custody, Maintenance of a child, Guardianship and Foster Placement. (Parts III, V, VII, VIII, IX, X, XI and XIII of the Children Act) The Children's Courts is not open to members of the public. The only persons allowed to be present are; Members and officers of the Court such as the Magistrate and the Court Clerk. Persons involved directly with the case before the Court, their Lawyers and Witnesses. Parents or Guardians of the Child before the Court. Bona fide representatives of newspapers or registered agencies

59 The Court may direct that all or any persons, not being members or officers of the court, or parties to the case or their advocates, to be excluded from the court, where the proceedings are in relation to an offence against or by a child, or any conduct contrary to decency or morality, or involving a child witness. Section 76 (5) of the Act provides that in any proceedings concerning a child, whether instituted under the Act or under any written law, a child's name, identity, home or last place of residence, school shall not, nor shall the particulars of the child's parents or relatives, any photograph or any depiction or caricature of the child, be published or revealed, whether in any publication or report (including any law report) or otherwise. Any person who contravenes the provisions of subsection (5) commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding three months, or to both.

60 WITNESS PROTECTION ACT Attorney General is required to establish and maintain a witness protection program and to take such action as he thinks necessary and reasonable to protect the safety and welfare of a witness. (Section 5 of the Witness Protection Act) If in any proceedings under the Act, the identity of a participant is in issue or may be disclosed, the court, tribunal or commission shall, unless it considers that the interests of justice require otherwise hold that part of the proceedings which relates to the identity of the participant in private; and make such orders relating to the suppression of publication of evidence given before the court, tribunal or commission as, in its opinion, will ensure that the identity of the participant is not disclosed. (Section 24 (1) of the Witness Protection Act) In any proceedings in a court, tribunal or commission of inquiry, where a participant or former participant who has been provided with a new identity under the programme is giving evidence, the court, tribunal, or commission may hold that part of the proceedings in camera. (Section 24 (2) of the Witness Protection Act)

61 It is an offence under the Act for a person to either directly or indirectly make a record of, or disclose to another person, any information relating to the making of an entry under the Act in a register of births, deaths or marriages, unless it is necessary to do so. The offence is punishable to a fine not exceeding five thousand shillings or imprisonment for a term not exceeding three years, or both.

62 CHALLENGES Current laws emphasize only the protection of witnesses/victims inside the courtroom but not outside the courtroom. Protection should be before, during and after trial. Establishing a victim support system victims and witnesses should be provided with a protective and security arrangements and counselling. Increasing pubic awareness of measures granting protection to witnesses and victims