Human rights and democratic governance in Kenya: A post-2007 appraisal

Morris Kiwinda Mbondenyi, Evelyne Owiye Asaala, Tom Kabau, Attiya Waris

Description

This publication is a collection of essays on human rights and democratic governance in Kenya in the period after the 2007 post-elections violence.After surviving the trauma of electoral violence, the country soon embarked on a journey towards reconstruction by engaging in, among other things, intense re-evaluation of the then existing system of laws and institutions. In the process, the daunting task has been to reverse the flawed systems that have been in existence for many decades and in their place entrench systems that would promote and respect democratic governance and human rights. This publication, therefore, documents the extent of the country’s reconstruction since 2007, and makes recommendations for the way forward for the recovery of the state.The editors of this publication are distinguished Kenyan academics. Morris Kiwinda Mbondenyi is an Associate Professor of Law at the Africa Nazarene University. Evelyne Owiye Asaala is a Lecturer of Law at the University of Nairobi. Tom Kabau is a Senior Lecturer of Law at the Africa Nazarene University. Attiya Waris is a Senior Lecturer of Law at the University of Nairobi.About the editors:Morris Kiwinda Mbondenyi is Associate Professor of Law, Africa Nazarene University.Evelyne Owiye Asaala is a Lecturer in Law, University of Nairobi.Tom Kabau is Senior Lecturer in Law, Africa Nazarene University.Attiya Waris is Senior Lecturer in Law, University of Nairobi.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2015
• Nombre de lectures: 0
• EAN13: 9781920538385
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Human rights and democratic governance in Kenya: A post-2007 appraisal

Morris Kiwinda Mbondenyi LLD, LLM (UNISA), LLB (Moi), Dip. Law (KSL) Associate Professor of Law, Africa Nazarene University

Evelyne Owiye Asaala LLM (Pretoria), LLB (Nairobi) Lecturer in Law, University of Nairobi

Tom Kabau PhD (Hong Kong), LLM, LLB (Nairobi), Dip. Law (KSL) Senior Lecturer in Law, Africa Nazarene University

Attiya Waris PhD (Lancaster), LLM (Pretoria), LLM (London), LLB (Nairobi) Senior Lecturer in Law, University of Nairobi

2015

Human rights and democratic governance in Kenya: A post-2007 appraisal

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-38-5

© 2015

1

TABLE OF CONTENTS

Foreword

Contributors

v

vii

Human rights and democratic governance in 1 post-2007 Kenya: An introductory appraisal Morris Kiwinda Mbondenyi

Part 1: Towards the realisation of a human rights culture A new era in human rights promotion and 2 protection in Kenya? An analysis of the salient 17 features of the 2010 Constitution’s Bill of Rights John Osogo Ambani Morris Kiwinda Mbondenyi Socio-economic rights and the potential for 3 structural reforms: A comparative perspective on the interpretation of the socio-economic rights in the Constitution of Kenya, 2010 39 Nicholas Wasonga Orago Towards a coherent legal regime for the protection 4 of indigenous peoples’ land rights in Kenya 83 Tom Kabau

Part 2: Entrenchment of democracy through electoral reforms The quest for a more perfect democracy: Is mixed 5 member proportional representation the answer? 21 1 Ochieng Walter Khobe Political parties and ‘free and fair’ nominations 6 in Kenya 149 Paul Ogendi

Part 3: Implementation of good governance principles Women’s representation in elective and appointive 7 offices in Kenya: Towards realisation of the two-thirds gender principle 179 Winifred Kamau The constitutional and legal framework of 8 devolved government and its relevance to development in Kenya 211 Conrad Bosire

iii

Part 4: The accountability and integrity conundrum Towards a corruption free Kenya: Demystifying 9 the concept of corruption for the post-2010 anti-corruption agenda 239

Ken Obura The leadership and integrity chapter of the 2010 10 Constitution of Kenya: The elusive threshold 275 Juliet Okoth Kenya’s fiscal accountability revisited: A review 11 of the historical erosion of the country’s fiscal Constitution from 1962 to 2010 301 Attiya Waris

Part 5: Unravelling judicial reforms and the state of justice Unclogging the wheels of justice: A review of 12 judicial transformation in the post-2007 period 327 Morris Kiwinda Mbondenyi Prosecuting the 2007 post election violence-related 13 international crimes in Kenyan courts: Exposing the real challenges 345 Evelyne Owiye Asaala Judicial responses to women’s rights violations in 14 Kenya in the post-2007 context 363 Ruth Aura-Odhiambo

Selected bibliography

iv

393

FOREWORD

Human rights and democracy can aptly be described at once as the mother’s milk, the life blood and the touch stone of human civilisation. Kenya, like most colonies inherited a raft of Laws whoseraison d’etrewas the subjugation of the colonised people. Indeed, the clamour for decolonisation in Kenya, as elsewhere, was informed by the peoples’ desire to regain their independence and dignity, this legitimised the Africa- wide clarion call for political freedom which was aptly captured in Kwame Nkrumah’s famous words: ‘Seek you first the political Kingdom and the rest will come later’.

Kenya’s Independence Constitution was not a product of popular participation. It was a compromise document woven quickly to transit Kenya from her colonial past to her new status of freedom as an independent nation. Even the leading politicians of the day did not embrace it wholly. They saw it as a transient stop-gap document which would be amended later to answer to the ‘needs’ of the new Nation. However, on assuming office, the founding fathers engaged in amendments aimed at emasculating the key organs of state, namely, the executive, the legislature and the judiciary and to concentrate power in the hands of the Presidency which metamorphosed into an ‘Imperial Presidency’. Prof HWO Okoth-Ogendo’s captured this trend in his now famous article: ‘Constitutions without constitutionalism:Reflections on an African political paradox’, the essence of which is that constitutions can exist without underwriting constitutional governance.

The constitutional amendments that took place in the 1960s through to the 1990s had the effect of reducing democratic space, undermining the rule of law and human rights. During this era, key institutions became mere instruments in the hands of the executive to be directed and used to address short term political interests in a neo-Machiavellian way to the detriment of the society.

The clamour for constitutional change in the late 1990s was therefore a product of peoples’ renewed desire to regain their independence and to place premium on democratic governance as aconditio sine qua nonfor better life.

The uniqueness of this treatise, which may be described as a medley of scholarly ‘thoughts’, is that it puts together a range of ideas on the subject of democratic governance and human rights in Kenya since the year 2007.

The authors touch on key areas germane to the discourse on democratic governance, such as the place of institutions in the scheme of governance, the impact of ethnicity and related socio-economic factors, the rights of indigenous communities, women’s rights, electoral reforms, leadership and integrity, fiscal accountability, judicial reforms, and the creation of a human rights culture amongst others.

The book recognises that the promulgation of the Constitution of Kenya 2010 was Kenya’s ‘Big Bang’ moment but warns appropriately that the

v

mere promulgation of a robust Constitution is not in itself sufficient to usher the country into ‘democratic utopia’.

Thepièce de résistanceof this collection of essays is that it has woven together a wide range of thoughts in the areas of human rights and democratic governance in a manner that will inform intellectual and political discourse for a long time. Scholars, judges, politicians and students will find this book useful.

Prof PLO Lumumba LLD, CPS (K), MKIM Director/Chief Executive & Secretary, Kenya School of Law Board Nairobi, Kenya July 2014

vi

CONTRIBUTORS

Attiya Waris is a Senior Lecturer, Department of Commercial Law, University of Nairobi in Kenya and a Visiting Lecturer, National University of Rwanda. She is a Member of the Organisation for Economic Co-operation and Development (OECD) Informal Task- Force on Tax and Development. She holds a Doctor of Philosophy (PhD) degree in Tax Law and Development from Lancaster University, United Kingdom (UK), and holds two Master of Laws (LLM) degrees; one in Human Rights and Democratisation in Africa from the University of Pretoria in South Africa, and the other in Business and Commercial Law from the University of London, as well as an Undergraduate Honours Law degree from the University of Nairobi. She is also currently the Patron of theUniversity of Nairobi Law Journal, Co-Editor of theof Australian Taxation Journal a Member of the and Advisory Board of theJuba Law Journal. She comes from a strong mixed practitioner and academic background, having worked in the UK as well as several countries in Africa in various and diverse institutions including academic institutions, law firms, Non-Governmental Organisations as well as the United Nations. She has published numerous articles and recently authored a book titledTax and development: Solving the fiscal crisis through human rightsand co- (2013) edited a book titledTax justice and the political economy of global capitalism, 1945 to the present(2013).

Conrad M Bosireholds a PhD in Law from the University of the Western Cape, an LLM from the University of Pretoria, a Diploma from the University of Fribourg and a Bachelor of Laws (LLB) degree from Moi University.

Evelyne Owiye Asaalais a Lecturer of Law at the University of Nairobi and is currently pursuing her PhD (out of seat) at the University of the Witwatersrand (South Africa). She holds a Master of Laws degree from the University of Pretoria (South Africa) and a Bachelor of Laws degree from the University of Nairobi (Kenya). She has previously worked with the Truth Justice and Reconciliation Commission of Kenya (TJRC) as a consultant; the Kenya National Commission for Human Rights and the Kenyan Task Force on Bail and Bond Policy and Guidelinesin similar capacities; and also as a Lecturer of Law at Africa Nazarene University (Kenya). Her areas of specialisation are International Human Rights Law, International Criminal Law and Transitional Justice.

John Osogo Ambaniis a Lecturer of Law at Strathmore University Law School and is currently pursuing his Doctor of Laws (LLD) at the University of Pretoria. He holds a Master of Laws degree from the University of Pretoria and a Bachelor of Laws degree from the University of Nairobi. He has extensive work experience, having worked for, amongst other institutions, the Catholic University of Eastern Africa and Moi University. Mr Ambani is also a Consultant in Human Rights, Constitutional Law and Democracy related issues and has published extensively in these areas.

vii

Juliet Amenge Okoth is a Lecturer at the University of Nairobi Law Faculty. She holds an LLD and LLM from the University of the Western Cape in South Africa. She is an Advocate of the High Court of Kenya and her research interests are in the fields of International Criminal Law and Transitional Justice.

Ken Oburais an Advocate of theHigh Court of Kenya holding a Bachelor of Laws degree from University of Nairobi, a Master of Laws degreefrom University of Pretoria, and a Doctor ofLawsdegree from Rhodes University. His areas of interest includeLegal Jurisprudence,Property Law,International Law, Humanitarian and Human Rights Law, Governance,Criminal Law, and Economic Law.

Morris Kiwinda Mbondenyian Associate Professor of Law and the is Founding Dean of the Africa Nazarene University Law School. He completed his Doctor of Laws and Master of Laws studies at the University of South Africa (UNISA), and his Bachelor of Laws degree at Moi University, Kenya. He has a Postgraduate Diploma in Law from the Kenya School of Law and is an Advocate of the High Court of Kenya. Prof Mbondenyi has several years of experience in legal research, lecturing, advising and consulting. He has consulted with, researched and worked for, and advised a number of organisations in Africa, including the Kenya Truth, Justice and Reconciliation Commission, International Commission of Jurists, the University of the Witwatersrand Law School (Johannesburg, South Africa), the United Nations International Criminal Tribunal for Rwanda (UN-ICTR, Arusha Tanzania), Johannesburg United Institute of Education, Foundation for Human Rights, South African Human Rights Commission and Arise Africa Consultants. He has numerous academic publications (books, book chapters and refereed journal articles) and has presented papers in both local and international conferences and seminars. He has also acted as a peer-reviewer for numerous law journals and is one of the Founding Editors-in-Chief of theAfrica Nazarene University Law Journal(ANULJ). He is also a Council of Legal Education (Kenya) Peer Reviewer. Prof Mbondenyi is a member of several professional organisations. In addition, he is involved in community development, particularly, in charity work andpro bono legal and human rights consultancy and advisory services. In 2011, he was recognised by the KenyanBusiness DailyNewspaper as one of the ‘Top 40 under 40 Men’ for his outstanding achievements at a youthful age; in 2012 his biography was listed inMarquis who is who in the world; and in 2013 he received the Distinguished Research and Innovation Award of the Africa Nazarene University.

Nicholas Oragoholds a PhD in Law from the University of the Western Cape, an LLM from the University of Pretoria, a Diploma from Abo Akademi University and an LLB from the University of Nairobi. He is an Adjunct Lecturer at the Faculty of Law, Riara University, Nairobi. He is also a Consultant on Social Economic Rights, Governance, Law, Development and Human Rights.

Ochieng Walter Khobean LLM in Human Rights and holds Democratisation in Africa from the University of Pretoria and an LLB from Moi University. He is an Assistant Lecturer at Moi University,

viii

School of Law and an Advocate of the High Court of Kenya. His research interests are in the areas of Transformative Constitutionalism, International and Comparative Human Rights Law, African Legal Thought and Third World Approaches to International Law (TWAIL).

Paul Ogendiis an Advocate of the High Court of Kenya. He is also a Right to Life Researcher at the African Commission on Human and Peoples' Rights, Institute for International and Constitutional Law and the Centre for Human Rights, Unlawful Killings Unit. He holds an LLM (Human Rights and Democratisation in Africa) and LLM (Public International Law) from the University of Pretoria and the University of Nairobi respectively. He is currently an LLD candidate at the Centre for Human Rights, University of Pretoria.

Ruth Aura Odhiamboa Doctorate degree in Law from the holds University of Pretoria, South Africa, a Masters degree in Policy Studies from the University of Forte Hare and a Masters degree in Law from the University of Zimbabwe. She is a Lawyer with more than 20 years of experience in International Law and Development, 15 of which have focused on Gender, Law and Human Rights. She is a Senior Lecturer at Egerton University, Institute of Women, Gender and Development Studies and School of Law. She has previously taught at the School of Law, University of Nairobi. She is a Gender Specialist and a Consultant on Women’s Human Rights. She has consulted and undertaken research for a number of organisations, such as the African Union Commission in Addis Ababa, and served as Member of the Technical Committee for the Beijing +15 Review under the auspices of United Nations Economic Commission for Africa and African Union Women, Gender and Development Directorate. She has consulted for ARD Inc Washington DC both in Kenya and Sudan, Landesa, Association for Co-operative Operations Research and Development and FHI. She has also consulted and undertaken research for National Gender and Equality Commission, United Nations Children's Fund/United Nations Population Fund and the Government of Kenya on various Gender, Policy Development, HIV/AIDS, Law and Human Rights issues. She has been a key facilitator of various legislative and policy reforms in Kenya, Zimbabwe and South Sudan. She has served as a board member in various organisations, including Federation of Women Lawyers – Kenya (FIDA-Kenya), National Council for Science and Technology and UNESCO EU Regional Bioethics Management Committee amongst others. She is the current Chairperson of FIDA-Kenya.

Tom Kabauholds a PhD in Public International Law from the University of Hong Kong, an LLM from the University of Nairobi, and has previously been a Research Fellow at Utrecht University. In 2015, he was a Transnational Law Summer Institute Fellow at King’s College London. He is a Senior Lecturer at the Africa Nazarene University School of Law and an Advocate of the High Court of Kenya. He has published in reputable peer-reviewed journals and has also served as a peer-reviewer. His research interests are in Public International Law, Human Rights Law, Law and Development, and Intellectual Property Law.

ix

Winifred Kamauan Associate Professor in the School of Law, is University of Nairobi.She holds LLB and LLM degrees from the University of Nairobi and a PhD from Osgoode Hall Law School, York University, Canada.She has extensive experience as a Law Lecturer, Trainer and Researcher and Consultant with teaching experience in Kenya and Canada. Between 2011-2013, she was Assistant Director at the Kenya School of Law in charge of Continuing Professional Development, Projects and Research. Prof Kamau has published widely in the areas of Gender and Law, Dispute Resolution and Non- State Justice Systems, with a current focus on the gender dimensions of judging.

1

H UMANRIGHTSANDDEMOCRATIC GOVERNANCEINPOST -2007 K ENYA : 1 A NINTRODUCTORYAPPRAISAL HAPTER C

Introduction

Morris Kiwinda Mbondenyi

Kenya opened a new chapter in her history when two wrangling political parties‒the Party of National Unity (PNU) and the Orange Democratic 1 Movement (ODM)‒signed a power sharing agreement in February 2008. The agreement brought to an end months of civil unrest and political bickering, following the declaration of Mr Mwai Kibaki (PNU’s 2 presidential candidate) as the winner of the 2007 Presidential Elections. The wave of atrocities that resulted from the declaration of Kibaki’s disputed victory caught the eye of the international community, which stepped in to restore order and peace in the country. The African Union (AU) appointed a team of international experts to mediate over the crisis. At the on-set, the mediators constituted the Kenya National Dialogue and Reconciliation (KNDR) team, comprising of representatives of both the 3 ODM and PNU.

It came to the attention of the team that the post-elections crisis was a culmination of both long-term and immediate causes. Accordingly, behind the façade of alleged election fraud were decades-old tensions that instigated the national pandemonium. The long-term causes of the crisis therefore encompassed many unresolved issues, some dating back to the time the country attained her independence. Endemic failures in

1

2

3

The deal was contained in two documents, namely, theAgreement on the principles of partnership of the Coalition Governmentand theNational Accord and Reconciliation Act 2008. See The Standard Team ‘New Dawn as MPs convene’ www.eastandard.net (accessed 22 May 2014). According to estimates, at least 1 000 people were killed and 350 000 internally displaced. See The Standard Team ‘New Dawn as MPs convene’ (n 1 above). See B Namunane ‘Annan pleads for grand coalition government’Daily Nation13 February 2008 www.nationmedia.com, (accessed 22 May 2014).

1