The Kenyan Section of the International Commission of Jurists

Transcription

1 The Kenyan Sectin f the Internatinal Cmmissin f Jurists Outline f Presentatin and Recmmendatins t the TJRC Issue 1: Capital punishment in Kenya is a critical access t justice issue. Kenya is increasingly islated as a retentinist natin: In all, 13 African cuntries have ablished the death penalty. These include, in West Africa, Guinea Bissau, Ivry Cast, Senegal and Tg. In suthern Africa Angla, Namibia and Suth Africa have ablished the penalty. The east and central African cuntries that have ablished the penalty are Rwanda, Burundi, Djibuti, Seychelles, and Mauritius. Nrth Africa has the largest number f retentinist states as nne f the cuntries in this regin has ablished the death penalty. If Rwanda, which faced gencide n a massive scale, can ablish the death penalty, n cuntry shuld cnsider that it has faced crimes fr which the death penalty is a necessary and inescapable respnse. Use f the death penalty is incnsistent with Kenya s ratificatin f internatinal human rights instruments such as the UDHR, ICCPR, Cnventin against Trture and adptin and incrpratin f the Rme Statute t mentin but a few Fr example, currently, Kenya faces a ridiculus paradx while thse facing trial at the ICC fr the mst serius internatinal crimes are nt eligible fr the death penalty, a pr Kenyan wh steals sme bread and des s while carrying a weapn culd be sentenced t death; this is a manifestly unfair regime. Capital defendants are nt prvided with sufficient access t legal cunsel, making their sentences a systematic vilatin f human rights The recent Macharia case cnfirmed that capital defendants have a right t effective cunsel under the new Cnstitutin; hwever this fundamental principle is nt being implemented. In the absence f a legal aid scheme in the cuntry, capital defendants right t cunsel is regularly being breached. Judicial rulings n capital cases have been arbitrary and incnsistent, making applicatin f the death penalty in Kenya a grss vilatin f human rights Fr example, at a recent cnference in Rwanda, a Kenyan judge, representing the Kenyan delegatin, infrmed the cnference that a Curt f Appeal case had remved the mandatry requirement f the Death Penalty as a sentence fr certain crimes. 1

2 Hwever, just the previus day, a High Curt Judge had gne against this Curt f Appeal decisin and had impsed a mandatry death sentence, bserving that Curts were under a legal bligatin t impse it, ging s far as t challenge the President s decisin t cmmute previus death sentences t life imprisnment, saying, the President shuld sign death warrants passed by the Curt, as failure t d s is t fail in his cnstitutinal duty. Under internatinal law, the death penalty is t be impsed nly fr the mst serius crimes and can never be applied in an arbitrary manner. Unfrtunately, that is exactly what is happening in Kenya given the cnfused state f Kenyan judicial decisin-making. Recmmendatin: The TJRC shuld recmmend that the death penalty be ablished in Kenya. Ablitin f the death is the nly way t ensure that the penalty is nt used fr purpses f plitical repressin. Fr instance, Suth Africa s judiciary utlawed the death penalty in the famus Makwanyane case, bserving that this sentence had been a majr tl f repressin during apartheid, and that there was n justificatin fr such a sentence in a free Suth Africa. Namibia, which had had a similarly abusive use f the death sentence, decided at independence nt t retain the penalty in its law bks. The danger f deplying the death penalty t achieve plitical repressin is still present in independent African cuntries, except that because f the changed racial cntext, it appears less as a plitical tl. T make this pint, the example f Kenya was prvided: the lngstanding mratrium against the death penalty was temprarily lifted in 1987, t allw the gvernment t execute thse cnvicted fr invlvement in the abrtive attempt t verthrw the gvernment in The mratrium then resumed and has held until nw. The danger is that despite the current mratrium, until the practiced is abandned in law, the penalty can be arbitrarily applied fr plitical reasns. The pressure generated by plitical trials can easily lead t a lifting f the mratrium, even if temprarily. Fr all the reasns, discussed abve, ICJ Kenya firmly believes that the death penalty shuld be ablished. Issue 2: The relatinship between the judiciary and the brader fight against crruptin in Kenya has been a majr prblem. The judiciary has traditinally been ne f the weakest links in that its jurisprudence n crruptin has been significantly flawed, resulting in impunity. In the wrst incidents, the Judiciary has been cmplicit and an active participant in crruptin, fr instance in 2005, when judges rganized tw lawyers t file a suit t ppse the cnstitutinal review prcess, which at the time had threatened the vested interests f the judges. In essence, the judges judged in their wn cause, in a suit that had been prcured thrugh deceit. Gatekeeping is a term that the legal cmmunity in Kenya uses t describe arrangements in which the Judiciary ensures that special interests are prtected when the Judiciary is called upn 2

3 t adjudicate disputes. Gatekeeping is an ld prblem in the Kenyan judiciary. During the neparty era, which was characterized by attempts t challenge the establishment using the curts f law, the Judiciary rganized itself t walk the tight rpe f supprting the gvernment f the day as best as it culd, n the ne hand, and maintaining a façade f impartiality, n the ther. One f the ways in which gatekeeping was delivered at that time was thrugh the cntrl f case allcatin in the curts. As part f this scheme, certain safe judges were assigned t any cases that sught t challenge the gvernment f the day. As a result f this many cases were wrngfully decided, including ne where the Bill f Rights under the Cnstitutin was fund t be unenfrceable! I will highlight three majr examples where the gatekeeping functin has been exercised: Saitti Case Gerge Saitti, then the Vice President and Minister f Finance, was highly implicated by the cmmissin f inquiry int the Gldenberg scandal. He decided t sue the Cmmissin fr implicating him. Despite the fact that the Cmmissin was n lnger in existence at the time, as it had expired, the judge hearing the case allwed the matter t be filed n the nn-existent secretariat f the Cmmissin. Then, in its judgment, the curt held that nt nly were there factual errrs in the Gldenberg Reprt, but it als suggested hw the reprt shuld be rewrded, and, in effect, abslved Saitti f any liability. This in turn led t several prceedings by ther implicated fficials, seeking t be similarly abslved. In this case, the Curt acted as a gatekeeper, by hearing an appeal n the findings f the Gldenberg inquiry, a pwer it des nt have Allwing the matter t prceed withut giving reasnable pprtunity fr participatin by the authrs f the reprt, which had been disslved The prsecutin functin f the gvernment was nt clistered by the findings f the inquiry whether r nt these were factually crrect as the gvernment was nt bliged t rely n the cntents f the reprt in munting a prsecutin. Curts have a cnstitutinal duty t review fr legality, the decisins f the ther arms f gvernment. Illegality in relatin t the Gldenberg affair culd nt have been cured by a mere reslutin f Parliament Eric Ktut Case Als stemming frm the Gldenberg Scandal, Eric Ktut, and the Gvernr f the Central Bank was facing a criminal case, but the case has nt prceeded n tw grunds, that the Gldenberg reprt cntained factual errrs, and that there had been inrdinate delay in bringing charges against him. There were several irregularities with this case: Ktut sught and successfully managed t impugn the cntents f a reprt whse authrs were nt in any serius way heard in Curt. The High Curt allwed Ktut s case t be brught against the Attrney General. The Attrney 3

4 General was tasked with defending a reprt he did nt write, n behalf f an entity that n lnger existed. Secndly, even if the reprt f the Cmmissin cntained factual errrs, as the curt fund it did, it is difficult t accept its decisin n the effect f thse errrs. Accrding t the curt, the errrs invalidated a trial f Ktut by a curt f law. Why wuld this be the case, if it is accepted that a curt f law is under duty t evaluate all the evidence brught befre it afresh and is nt bund by the cntents f the reprt? Why wuld the fact that the reprt had errrs nt be Ktut s defence t a charge against him in a criminal curt? If a trial is brught that is based n errneus infrmatin, an accused will have pprtunity t pint this ut during the trial and will, if the curt accepts his reasning, be entitled t an acquittal. But, it is nt clear hw errrs can invalidate a trial, and there was n legal basis fr the curt t alter the findings f the Cmmissin f Inquiry n Ktut, even if they were in errr. Thirdly, the curt fund that there had been delay in the cmmencement f prceedings against Ktut, in breach f the cnstitutinal prvisins which grant a right t a fair trial within reasnable time. But this is surely incrrect. The cnstitutinal prvisins fr the right t a fair trial d nt prhibit delay in bringing criminal charges against a persn. What the prvisins prhibit is delay in the hearing f a criminal case nce the charges have been brught against a persn. As it is pssible fr a crime t be detected fr the first time lng after it was cmmitted, it wuld nt be reasnable fr the law t prvide a time limit, by reference t when the alleged ffence was cmmitted, within which a persn can be charged in curt. The Curt misapplied the Cnstitutin, and misrepresented previus cases talking abut this subject, t rule in Ktut s favur Finally, the Curt, withut an applicatin n the matter r any cited evidence, fund that the amunt f publicity that the case against Ktut had received, bth in Kenya and internatinally, made it difficult t cnduct a fair trial f the case. It will remain a mystery why the curt decided that the wide publicity n the case was prejudicial t a fair trial. If these decisins cntinue t stand, they will frm the basis fr further, similar cases t fail. Nedmar Case this case is part f the Angl Leasing scandal, where the gvernment awarded cntracts wrth $ 400 millin and a further Eurs 309 millin t 18 shadwy cmpanies. Nedmar was ne f the cmpanies invlved in these cntracts, which were bund by strict secrecy rules. The Kenya Anti-Crruptin Cmmissin attempted t investigate these transactins, but was blcked by the Curt, which granted rders the Nedmar, ex parte, r withut KACC being represented in curt, n the basis that an investigatin wuld prejudice the secrecy prvisins f the cntract. The Curt made this determinatin despite the fact that a gvernment fficial had filed a swrn 4

5 dcument waiving the secrecy prvisins, and in the face f the claim that the cntract may have been fraudulent. Kadhi Curts Case In this case, a judge sught t ban Kadhi curts. This judgment seems t attempt t utlaw ne f the riginal articles f the Cnstitutin, which the Curts cannt d. And, by including the Cnstitutin f Kenya Review Cmmissin as a party, the Curt vilated the rule that curts shuld nt act in vain by entertaining litigatin with an unenfrceable utcme. The cncern with cases like these, is that certain members f the Judiciary have in the past taken deliberate steps impede access t justice and as a result frmed the cnstitutinal basis fr judicial vetting prcess. Recmmendatin: The TJRC shuld declare its supprt fr the nging judicial refrm prjects, and especially the vetting f judges and magistrates. The TJRC shuld include in its recmmendatins additinal mechanisms t prmte an independent, impartial, and crruptin-free Judiciary. Issue 3: Related t issue 2, there have been miscarriages f justice thrughut the TJRC s mandated time perid as a result f the failure f the judicial system t fairly and effectively carry ut its fundamental functin. This has impacted a wide array f cases including: Wrngfully decided Criminal cases, including death penalty cases Wrngfully decided civil suits that have resulted in manifest injustice Wrngfully decided anti-crruptin cases Wrngfully decided land claims cases These wrngfully decided cases have tw majr repercussins: First, the parties in a wrngfully decided case suffer direct injustice, whether thrugh wrngful cnvictins, imprper sentencing, damage awards in civil cases that are disprprtinate t the harms suffered, and, especially with regards t land claims, nging and perpetual cnflict ver individual and grup rights. Secnd, in a cmmn law system Judicial Decisins create new law, by virtue f the fact that they are precedent setting. Wrngfully decided, ften cntradictry decisins mean that a large prtin f Kenyan Law is cnfusing, unclear, unpredictable and unenfrceable. 5

6 Recmmendatin: The TJRC shuld recmmend that the judiciary establish a credible mechanism f case review t ensure that past injustices are remedied. Criminal cases that resulted in deprivatin f liberty shuld be priritized, especially where the death penalty r life imprisnment has been invlved. In additin, an independent bdy shuld be frmed t specifically review cases and decisins related t past instances f injustice where individuals were prsecuted and punished fr plitical and/r nnlegal reasns. Resurces and rganizatin shuld be recmmended fr n-ging judicial training and sensitizatin n Cmmn Law principles, rules and standards f Judicial Cnduct. Issue 4: Kenya s judicial system suffers frm fundamental structural, prcess, and capacity issues that hamper access t justice and undermine cnfidence in the Judiciary. These prblems include: prcess issues delays backlg csts persnnel issues case management judicial training curt infrastructure and technlgy crruptin within the judiciary and judicial administratin crruptin within the prcurement prcess that supprts judicial functins Recmmendatins: The TJRC shuld publicly declare its supprt fr nging judicial refrm effrts and specifically recmmend that the Judiciary Transfrmative Framewrk shuld be fast structured and pririty areas such as thse prpsed t deal with case backlgs and an increase in judicial persnnel shuld be urgently priritized. In rder t curb the rampant crruptin in the Judiciary, the TJRC shuld recmmend that the Vetting prcess shuld be extended t include judicial supprts staff as they are the main drivers f crruptin within the judicial system. Issue 5: Prvisin f legal assistance t the pr is a majr access t justice issue. There currently is n natinal legal aid prgram in Kenya. As such, lw-incme individuals are dependent n a netwrk f ver-stretched NGO and cmmunity-based prgrams that cannt service the demand. As a result, many wh need justice are turned away and are unable t access the curts. ICJ K has wrked cnsistently ver the years t imprve access t legal services thrugh training and establishing paralegal netwrks and thrugh wrking with the Ministry f Justice t develp legal aid legislatin. Hwever, the majr challenges t any legal aid scheme are adequate funding and equitable allcatin f resurces. 6

7 Recmmendatin: The TJRC shuld reiterate the gvernment s respnsibility t pass legislatin establishing and fully funding a legal assistance regime fr thse wh cannt affrd legal services it shuld highlight that the legal aid scheme must equitably prvide services t particularly vulnerable grups and in traditinally marginalized areas. Issue 6: The structure f the DPP s ffice is prblematic in that it des nt allw fr transparent and accuntable prsecutrial decisin-making. In the first instance, the appintment prcess f the Directr f Public Prsecutin was heavily criticized fr a lack f transparency and resulted in plitical plarizatin. The perceived failure in the interview prcess was attributed t a lack f an pen and transparent selectin and appintment prcess such that there is still t date a pending curt case n this. Currently, the ffice f the Directr f Public Prsecutins faces challenges in its internal structures and has huge peratinal weaknesses. The present staff was inherited frm the State Law Office and the numbers f recmmended and authrized psts are yet t be filled r the institutin adequately funded. There are new areas f emerging crime that require sund technical cmpetence and likely t be a challenge t the prsecutin service. Appeals frm the prsecutin service take t lng t finalize and there is limited undertaking f pre trials with witnesses There is a weak crdinatin between the Plice Prsecutrs and State Cunsels Recmmendatin: The TJRC shuld recmmend that all public ffice appintment prcesses that require a selectin prcess shuld be cnducted in an pen, transparent and credible set criterin. Any appintment that fails t adhere t the established minimum standards shuld be nullified. It shuld recmmend that the Office f the Directr f Public Prsecutins shuld be adequately funded t enable it functin ptimally. Furthermre, the TJRC shuld recmmend an increase in f persnnel as well as strengthening f the Capacities f the staff at the Office f the Directr f Public Prsecutins t enable it deal adequately deal with emerging crimes and recmmended prsecutins that are likely t arise frm the TJRC Prcess 7