KATIBA INSTITUTE E-NEWSLETTER
Issue 1/ 2020
Greetings from Katiba Institute.
Moving office has occupied much of our energy over the last few months and the settling-in process is not yet completed (for the new address see the end of this Newsletter). But the pace of work, in court and out, has not let up, except over the Christmas period. Highlights have been successes – sometimes complete, sometimes partial – in a number of cases, which have been designed to protect human rights (including to privacy and equality), as well as the values and procedures of the Constitution. We have also produced new publications, in print and electronic form, continued to insist on the release of information under Article 35 of the Constitution, and participated in training programmes and discussion on law reform.
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Housing Coalition Holds Planning Meeting for 2020
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The housing coalition, of which Katiba Institute is a member, held a meeting on 29th January, 2020 to review its 2019 activities and plan for the 2020 activities including a strategy on the Eviction and Resettlement Bill. Hon. Shakeel Shabir, the Member of Parliament for Kisumu East, took participants through the history of the Bill which was first presented to Parliament in 2012 and taken out for the reason that it would be included in the land laws of 2012 which never came to pass. [Note: The Land Act as passed that year included very little on evictions. The Act was amended in 2016, and some good provisions introduced, but there is still need for a comprehensive law.] Hon. Shabir also discussed procedures prior to forced eviction, procedure during forced eviction, court procedures during eviction proceedings and miscellaneous provisions. There was a constructive discussion and suggestions were made for improving the Bill and carrying out public participation.
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KI Holds a Validation Meeting on a Guide for Public Participation and Access to Information in the Extractive Sector
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| Katiba Institute held a meeting to get the views of stakeholders on a guide for public participation and access to information in the extractive sector which is under development. The meeting was held on 31st January, 2020 in Nairobi. The guide aims to establish the emerging standards with regards to access to information and public participation in the extractive sector. While making a presentation about the guide, KI’s Executive Director, Christine Nkonge, noted that public participation and access to information are critical in the open contracting initiative that the Kenyan government has committed to. This is also linked to the government’s “big four” Agenda, specifically manufacturing. The participants observed that the guide would be an important resource in enhancing accountability in the extractive sector. |
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KI Participates in a Training Programme for Young Public Interest Lawyers
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| Katiba Institute Executive Director Christine Nkonge and Directors Yash Pal Ghai and Jill Cottrell Ghai participated in teaching on a course for younger active or prospective PIL lawyers held in Arusha Tanzania. It is organized by the Centre for Strategic Litigation, based in Zanzibar. |
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KI Holds a Validation Meeting on a Guide for Public Participation and Access to Information in the Extractive Sector
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| Katiba Institute held a meeting to get the views of stakeholders on a guide for public participation and access to information in the extractive sector which is under development. The meeting was held on 31st January, 2020 in Nairobi. The guide aims to establish the emerging standards with regards to access to information and public participation in the extractive sector. While making a presentation about the guide, KI’s Executive Director, Christine Nkonge, noted that public participation and access to information are critical in the open contracting initiative that the Kenyan government has committed to. This is also linked to the government’s “big four” Agenda, specifically manufacturing. The participants observed that the guide would be an important resource in enhancing accountability in the extractive sector. |
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KI Trains Kasarani Technical staff on Access to Information
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Katiba Institute trained a team, mainly staff, from Kasarani Technical and Vocational College on Access to Information on 21st January, 2020. Ben Nyabira, the Programmes Manager, took participants through the Access to Information Act of 2016 and related laws while Kevin Mabonga, the Communications Officer, discussed the process of requesting for information under the Act. "The training was resourceful to our team and we look forward to more engagements with Katiba Institute." Mr. David Onyimbo, the Principal, Kasarani Technical and Vocational College, noted after the training.
You can download a Handbook on Access to Information Act, 2016 developed by Katiba Institute. |
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Access to Information Requests
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| Katiba Institute continued to seek information from various government agencies. This includes information about the review of the mandatory death sentence (from Office of the Attorney General); terms of appointment of the chairperson and members of the Independent Policing Oversight Authority (IPOA) board (from IPOA and Public Service Commission); the construction of the Jomo Kenyatta International Airport – Westlands expressway (from Ministry of Transport, and National Highways Authority: the status of gazettement of the Kilifi Maternal newborn and Child Health Act, 2016 (from Ministry of Interior and Co-ordination of National Government); and the resources used for the Building Bridges Initiative (BBI) from Office of the President. Katiba Institute regularly makes use of Article 35 on Access to Information (ATI) to give effect to the constitutional principles of transparency, accountability and freedom of expression. |
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Okiya Omtatah Okoiti v Selection Panel for the NLC & 3 others; Gershom Otachi Bw’omanwa & 10 others, Petition 162 of 2019 [2019] eKLR
This case, in which Katiba Institute was an interested party, challenged appointments to the National Land Commission (NLC) on various grounds. The High Court gave judgment on 14 November 2019. These were the ground and the outcomes:
- that the selection panel was improperly constituted because it did not include members of the NGO Council as required under the National Land Commission Act -
- the High Court agreed, but found that the failure did not nullify the recruitment and appointment process
- that the selection panel failed to publish the results of the interview process and failed to publish the names of candidates forwarded to the President -
- the Court held that the First Schedule of the Act does not require the NLC to publish either interview results or the names of successful applicants before forwarding them to the President;
- that the individuals selected for the Commission did not reflect regional balance –
- the Court refused to go into this matter;
- that the appointment of two of the individuals violated the Constitution because they had not applied for the positions to which they were appointed;
- The Court held that it was an abuse of office for the interested parties to submit for an interview for one position (namely Chairperson) and get hired for a different position (Commission Member). Their appointments were voided.
- and that Parliament exceeded its mandate by allowing one of the applicants to submit a tax compliance certificate after the selection panel had referred him to Parliament;
Judgment: http://kenyalaw.org/caselaw/cases/view/184768/
Okiya Omtatah Okoiti & another v Cabinet Secretary for Information, Communications and Technology & 2 others; Mahmoud Mohamed Noor & 9 others, Petitions 138 and 155 of 2019 [15 November 2019]
Katiba Institute was an interested party in this petition before the Employment and Labour Relations Court. The petition focused on the constitutionality of appointments to the Communications Authority of Kenya (CAK). The Court held that until Parliament enacts specific recruitment and appointment procedures, it would apply the criteria for appointments and advertisement of vacancies in the Public Service Commission Act, 2017. The Act requires that appointments to public office be transparent, competitive, merit-based, inclusive, and subject to public participation, which includes announcing and holding open interviews. Because these procedures on advertisement and competitive recruitment were not followed, the Court found that the four appointments were unconstitutional. The Court also held that the appointment of the acting Director-General of the CA was both unconstitutional and unlawful because the appointment process had been conducted by the Board of Communications Authority Chairman rather than the Board as a whole. The Court reasoned that because the Board had statutory authority to appoint the Director-General, it also had statutory authority to appoint an acting Director-General. Any recruitment conducted solely by the Chairman was unconstitutional.
Judgment: http://kenyalaw.org/caselaw/cases/view/185462/
Suyianka Lempaa v Teachers Service Commission & another, Petition 41 of 2019 [29 October 2019]
This case is about a decision of the Teachers Service Commission (TSC) to undertake a recruitment process that limited applications to Kenyans aged 45 and under. The Petitioner, an advocate at the Katiba Institute, argued that the age limit was discriminatory. Because there was no reasonable basis for limiting the age of applicants, the Petitioner submitted that the recruitment process was unconstitutional.The Court agreed, holding that the age limit was discriminatory and violated the Constitution. The Court looked at the principles of public service under Article 232 and the values that govern service of state officers and public officers, including teachers, under Article 10(2). The Court noted that age did not feature in either provision. The Respondents failed to demonstrate that those above 45 could not effectively serve as teachers and did not explain why the age for applicants was capped at 45. Taking judicial notice of the high rates of unemployment in Kenya, the Court held that the Respondents had no justifiable reason to limit the entry of teachers into the profession at 45. It had thus failed to satisfy the requirements of Article 24 of the Constitution for legitimate limitations of rights. The Court required the Respondents to conduct a new teacher recruitment process that did not discriminate on age or any other forbidden ground.
Judgment: http://kenyalaw.org/caselaw/cases/view/184930/
Katiba Institute v Attorney General & 3 others; Kenya National Commission on Human Rights, Petition 7 of 2018 [11 December 2019]
Katiba Institute filed this Petition because the Respondents (The Government represented by the Attorney General, the relevant Cabinet Secretary, the Public Service Commission and the National Intelligence Service) had failed to constitute the Intelligence Service Complaints Board (ISCB) as the National Intelligence Service Act, 2012 required. Article 66 of the Act establishes the ISCB, whose function is to inquire into complaints regarding abuses of authority of either the Director-General or members of the NIS. The Court held that the Respondents’ failure to establish the ISCB violated Article 47 of the Constitution because it denied the public any recourse to file complaints about NIS abuses of authority. Because the ISCB is to function as a quasi-judicial tribunal, the failure to establish it also violated the right to a fair hearing under Article 50(1) of the Constitution. The Court, citing Article 259(8) of the Constitution, held that the Government had no reasonable excuse for the six-year delay in establishing the ISCB, and had violated its duty as a state organ mandated to fulfill and uphold the values and principles of the Constitution (Article 10). The Court required the Government to establish and operationalize the ISCB in adherence with the principles under Article 232 of the Constitution and Section 10 of the Public Service (Values and Principles) Act. It also ordered the Respondents to file an affidavit indicating the status of their compliance within 180 days of the Judgment.
Judgment: http://kenyalaw.org/caselaw/cases/view/186822/
Bloggers Association of Kenya (BAKE) v Attorney General & 5 others, Petition 206 of 2018
This case concerns the constitutionality of 26 sections of the Computer Offences and Cybercrimes Act, 2018. The Petitioners moved the Court to stop the implementation of the legislation, submitting that it infringes on the freedoms of opinion and expression, and freedom of the media. In May 2018 BAKE was granted an injunction, which halted the implementation of the sections. The matter was heard on 23 October 2019. The Court dismissed the petition on 20th February 2020. KI was an interested party. |
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Mitu-Bell Welfare Society v Kenya Airports Authority; Initiative for Strategic Litigation in Africa (ISLA), Petition 3 of 2018 [29 November 2019]
The appeal to the Supreme Court from the Court of Appeal, in which the Katiba Institute represents the Petitioner, centres around the forced and illegal eviction of the Petitioners from Mitumba Village, an informal settlement where some had resided for nearly two decades. This matter addresses the right to housing under Article 43 of the Constitution, the obligations of the State in the realization of socio-economic rights, the role of international law in interpreting rights, and balancing competing constitutional rights. It is a very important case so far as socio-economic rights, and remedies, under the Constitution are concerned. Substantive arguments will be heard in 2020. Ruling - the Supreme Court approved the Initiative for Strategic Litigation in Africa’s application to be joined as amicus curiae: http://kenyalaw.org/caselaw/cases/view/185843/
Wanuri Kahiu & another v CEO, Kenya Film Classification Board - Ezekiel Mutua & 4 others, Petition 313 of 2018 (Rafiki Film)
This case was brought after the Kenya Films and Publication Board banned Rafiki, a film written and directed by Wanuri Kahui, because of its LGBTI-themed content. The court viewed the film on 18 October 2019, submissions were highlighted on 3 December 2019, and the matter is awaiting judgment. The Katiba Institute represents the 2nd Petitioner, Creative Economy Working Group.
Salaries and Remuneration Commission & another v Parliamentary Service Commission & 15 others; Parliament & 4 others; Peter Kubebea & 2 others, Petitions 208, 185, and 339 of 2019
This Petition, in which Katiba Institute is an interested party, challenges the Parliamentary Service Commission’s decision to give Members of Parliament a Ksh. 250,000 housing allowance. The Court must decide whether the Parliamentary Service Commission can set the salaries and benefits of MPs without consulting the Salaries and Remuneration Commission. The matter was heard to completion in December 2019, and judgment is set for 13 March 2020.
Dr Tatu Kamau v AG & 2 others, Petition 244 of 2019
Dr Tatu Kamau petitioned the High Court challenging the constitutionality of the Prohibition of Female Genital Mutilation Act, claiming that it violates the constitutional right to culture. There are ten interested parties and two friends of the court (amici curiae), including the Katiba Institute. On 24 October 2019, the Petitioner and 10th Interested party testified, after which the Petitioner closed her case. The following day, two witnesses of the state testified in camera (the court sat behind closed doors). On 17 December, four more witnesses, including two experts, testified.This case is scheduled for the next hearing on 5 March 2020
Council of Governors and 47 others, Advisory Opinion, Reference 3 of 2019 [8 Oct 2019]
In July 2019, the Council of Governors and all 47 counties filed a request for an advisory opinion at the Supreme Court to address revenue allocation among the national and county governments. The Supreme Court has been asked to determine the roles of Parliament, the Commission of Revenue Allocation, and the Controller of Budget in deciding how to divide money among the counties and the national government. Katiba Institute and The Institute for Social Accountability were joined as Interested Parties. The National Assembly then challenged the Supreme Court’s jurisdiction to issue the advisory opinion. On 8 October, the Court held that it could issue an advisory opinion because this is a case of public importance deserving of the Court’s discretion. The matter was heard to completion on 21 January 2020 and is now awaiting judgment. Ruling on Preliminary Objection: http://kenyalaw.org/caselaw/cases/view/183404/
Okiya Omtatath Okoiti & 4 others v Attorney-General & 4 others; Council of Governors & 4 others, Petition 163 of 2019
Katiba Institute participated as an Interested Party in this challenge to the amendments to the Registration of Persons Act, which established the National Integrated Management System (NIIMS). The amendments to the Act were enacted via the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018. The Petitioners argued that: The Act was passed without adequate public participation; a miscellaneous amendment act could not be used to pass substantive legislation; the Senate should have been involved in the legislative process; NIIMS violated the right to privacy; and NIIMS could be used to perpetuate the marginalization of the Nubian community and other vulnerable groups that face difficulties getting documentation. On 30 January 2020, the Court issued a judgment in this case, combined with another. The Court held that the public was given sufficient opportunity to participate and that Parliament had not improperly used a miscellaneous bill to pass substantive amendments because the public had the opportunity to participate in the process. The Court also held that the participation of the Senate was not necessary because national population registers are not a function of the counties. In its analysis of the right to privacy, the Court found that the data collected by NIIMS is personal data subject to the right to privacy. However, it held that the right to privacy is not absolute, and incursions on the right were appropriate here because using biometric data was necessary. The Court held that the collection of DNA information and GPS co-ordinates for identification is intrusive and unnecessary and violates Article 31 on privacy if not authorized and specifically anchored in empowering legislation. Accordingly, the Court held that sections 5(1)(g) and 5(1)(ha) of the Registration of Persons Act, in so far as they require the collection of this data, are unconstitutional. The Respondents must not continue implementing NIIMS until a regulatory framework is enacted that complies with the constitutional requirements identified in the judgment.The Court did not find a violation of the right to equality and non-discrimination. Petition 163 of 2019 also challenged certain other amendments in the Statute Law (Miscellaneous Amendment) Act No. 18 of 2018. It was determined that section 6 of the Kenya Information and Communication Act 1998 and section 24 (2A) of the Public Finance Management Act, both as amended by the miscellaneous bill, were unconstitutional. http://kenyalaw.org/caselaw/cases/view/188249/
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| We published the following articles in the Star newspaper (click on a title for the full text) |
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| Click on the title to open the full text |
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| KI published the following books(click on the title to open full text). |
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