KATIBA INSTITUTE E-NEWSLETTER
Welcome to our latest newsletter.
In this edition, we share a summary and impact of our work in the courts in the last 10 years, the latest case summaries and activities including our work on prevention and response to gender-based violence, participation in the World Press Freedom Day 2021 celebrations in Kenya, our involvement in the training of magistrates on environment and land issues and KI’s contributions to discussions on freedom of expression for judicial officers hosted by ICJ and on safeguarding the rights of women human rights defenders and journalists hosted by Article 19 Eastern Africa.
We have also, through our weekly Katiba Corner column in the Star Newspaper, contributed to the current and relevant discussions in our country. In our latest articles, a call to respect constitutional values and rule of law, the history of legislators losing their seats for leaving political parties, an analysis of the landmark judgment where the High Court dismissed a petition challenging the constitutionality of an Act prohibiting FGM, and the likelihood of the polls to be delayed to accommodate BBI timelines. Finally, our director Jill Cottrell Ghai shares her submission to Parliament on its role in the Constitution amendment. She urges MPs to think about the process into which they have been drawn.
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KI part of World Press Freedom Day 2021 celebrations in Kenya
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Katiba Institute was a key partner in the World Press Freedom 2021 celebrations hosted by the Media Council of Kenya on 3rd and 4th May 2021. This year’s theme was "Information as a Public Good" which serves as a call to affirm the importance of cherishing information as a public good, and exploring what can be done in the production, distribution and reception of content to strengthen journalism, and to advance transparency and empowerment.
KI participated in the first panel discussion themed “Media &Information Literacy as a catalyst for right to information and audience led programing.” Katiba Institute’s Program Manager, Ben Nyabira made a presentation that focused on why Access to information an important aspect of press freedom is, the use of Access to Information (ATI) to find the truth on several matters, and how media can effectively utilize the access to information law by publicising incidents of non-disclosure of information to compel the affected parties to disclose information.
On 4th May 2021, outstanding journalists in various categories were feted. Katiba Institute sponsored the good governance category. This is the second time KI has participated in the event.
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Prof. Yash Pal Ghai honoured by the University of Pretoria
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Professor Yash Pal Ghai was awarded an honorary doctorate in law by the Faculty of Law, University of Pretoria on 15 April 2021. The award recognises Professor Ghai’s vast contribution to constitutional dialogue, particularly in the African region. While his scholarship and contributions have previously been honoured on several occasions, too little of this recognition has come from the African continent, despite him being African.
"Honouring Prof Ghai with this award is closely aligned with the University of Pretoria’s vision to be a leading globally relevant university in Africa.” - University of Pretoria
In his address, Professor Yash Pal Ghai thanked the University of Pretoria for the honour. He reflected his connections with Pretoria and how South Africa contributed to the Kenyan constitution making process.
"I am very grateful to the Vice-Chancellor and Principal of the distinguished University of Pretoria, Professor Tawana Kupe, for the invitation to the University’s Annual Meeting and doing me the great honour of the award of its Honorary Doctorate.
"My connections with Pretoria go back many years when I learnt so much about South Africa’s efforts at independence and establishing the basis of a fair state. I was new to politics but met some key South African politicians when I passed briefly through your country on my trips to Nairobi from Hong Kong (where I was a teacher). It was great learning about the complexity of establishing an independent state and I was very fortunate that leading South African politicians helped me understand the complexity of this process."
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Katiba Institute & Social Justice Centres train gender desk officers
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Katiba Institute and the Social Justice Centres Working Group, which coordinates social justice centres countrywide, held two one-week trainings of 76 gender desk officers (the officers will be based at various Social Justice Centres) drawn from Nairobi, Kilifi, Mombasa, Taita Taveta, Baringo, Kajiado, Kisumu, Busia, Kakamega, Siaya, and Vihiga counties.
The first training took place in Kajiado county from 14th to 20th March 2021, and the second training took place from 28th March 2021 to 2nd April 2021. The training lays the ground for the implementation of a project on enhancing prevention and response to gender-based violence aggravated by the COVID-19 Pandemic. The project, implemented by KI and the Social Justice Centres Working Group and supported by the Royal Norwegian Embassy in Nairobi, aims at enhancing freedom from Sexual and Gender Based Violence in various informal settlements in Kenya by improving SGBV response and prevention through greater community engagement and ownership.
Training of the gender desk officers is a key aspect of the project, as the officers are the frontline actors in addressing Gender Based Violence issues reported at the social justice centers. The officers will also help in sustaining a transformative shift in perceptions towards gender based violence from a culture of tolerance and normalization of gender-based violence to a new orientation that affirms accountability and sustainable remedies. |
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KI at the training of magistrates on environment and land issues
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| Katiba Institute Executive Director, Christine Nkonge, made a presentation on case law on environmental impact assessments and strategic environmental assessments at the training of Magistrates in environment and land matters in Mombasa on 10-12 March 2021. The training was organized by the Judiciary Training Institute (JTI) in collaboration with the National Environment Management Authority (NEMA), the Africa Network for Animal Welfare (ANAW), the United Nations Office on Drugs and Crimes (UNODC), Wildlife Direct and Katiba Institute |
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Prof. Yash Pal Ghai celebrated during NGO Week 2021
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Amnesty Kenya recognized the role played by Prof. Yash Pal Ghai in the Constitution making process.
@AmnestyKenya: “#NGOWeek2021 is incomplete without recognizing Amnesty members making a difference in civil society! Yash Pal Ghai has been an Amnesty member since he was in college and has been fundamental in molding the constitution we currently enjoy.”
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KI holds a women leadership clinic in Bungoma County
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Katiba Institute, with support from the National Endowment for Democracy (NED), held a women leadership clinic in Bungoma County on April 7 and 8. This follows a similar event held in Isiolo County in 2020 The clinic targeted women leaders from minority groups including Teso, Bongomek, Sabaot, Batura, Tachoni, Ogiek and Dorobo. KI team did not travel to Bungoma physically but joined the sessions virtually following travel restrictions by the government.
Participants got an opportunity to discuss general challenges women leaders from ethnic minority communities face, the lessons and opportunities to pursue leadership, and movement building for change- at the local level. The leaders also discussed the available platforms to engage and the importance of effective communication skills.
Lillian Bwire, the facilitator of the event noted that women leadership and participation in all structures and processes of governance are essential in building just communities, in pursuit of Gender equality and in safeguarding democratic space not only at the national level, but at the devolved levels in the county governments. |
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Webinar: Challenges, limitations & scope of freedom of expression for judicial officers
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Katiba Institute’s Professor Jill Cottrell Ghai was one of the panelists when the International Commission of Jurists (ICJ) hosted a webinar discussing the topical issue of freedom of expression of judicial officers. Other panelists were Dr. Justice Alfred Mavedzenge, Honourable Judge Professor Oagile Key Dingake, Professor Pierre De Vos, and Justice Radmila Dragicevic-Dicic.
Access the recorded webinar via…https://www.youtube.com/watch?v=B9isuqQtpQc
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Webinar: Safeguarding the rights of women human rights defenders and journalists
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| Katiba Institute Executive Director, Christine Nkonge, was a speaker at a webinar organized by Article 19 Eastern Africa, which focused on protection of the rights of women human rights defenders. In her presentation, Christine took participants through the concept of public interest litigation and the process of lodging petitions.
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Katiba Institute at 10: Defending the Constitution in court
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| KI has filed or participated in over 150 cases before Kenyan courts and tribunals. We have participated as petitioners, interested parties, amici curiae (friends of the court), legal representatives, or as legal consultants. We have litigated before the Supreme Court, the Court of Appeal, the High Court and the Environmental and Land, and Employment and Labour Relations Courts, the National Environment Tribunal - and in the criminal section of the Magistrates’ Court, as advocates for human rights defenders who have been arrested in the course of their work. We believe our interventions on nearly every aspect of the Constitution have significantly helped frame Kenya’s jurisprudence on human rights and democracy and have had – and will continue to have – a lasting impact on the way our Constitution works. |
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On 11 March 2021, the High Court held that local tribunals established to adjudicate disputes are ‘subordinate courts’ under the Kenyan Constitution. As a result, these tribunals must be regulated and controlled by the Judiciary not by any other organ of government.
The case, in which Katiba Institute participated as an interested party, concerned 24 different Tribunals that had been established before the implementation of the Kenyan Constitution to address specialized disputes, such as those related to a specific industry or government regulations. These tribunals had traditionally been managed by the Executive, which exercised the authority to appoint and remove tribunal members. The petitioner and Katiba Institute argued that these tribunals practised an adjudicative function and, as a result, should be regulated and controlled by the Judiciary, not the Executive.
The High Court agreed. It held that the Executive could no longer appoint or remove members of the Tribunal but, instead, those functions must transfer to the Judicial Service Commission. The Court also held that Parliament and the Attorney-General must take proactive steps to draft and pass laws that would facilitate the transition of the tribunals to the Judiciary, finding that the 24 tribunals should be operated under the Judiciary. |
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Last year (2020), the County Assemblies of Kericho and Nandi Counties and the Governor of Makueni County filed applications with the Supreme Court for an advisory opinion concerning the proposed constitutional amendments under the Building Bridges Initiative (BBI). The applicants presented critical questions about the process the counties should follow when considering constitutional amendments.
Although the Supreme Court held that it had the authority (jurisdiction) to answer the questions presented by the applicants, it refused to do so. The Supreme Court noted that similar questions were presented to the High Courts in litigation related to BBI. It held that the High Courts were in a better position to address these questions and that an advisory opinion may lead to conflicting or confusing results. |
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On 17 March 2021, a three-judge bench of the High Court issued a long-anticipated ruling on the extent to which bans on female genital mutilation under the Prohibition of Female Genital Mutilation Act violated the Constitutional rights to cultural expression, religion, and freedom from discrimination. The court held that although FGM was a cultural practice among some communities, the medical evidence proved that such practices had short-term and long-term consequences on women’s health. The Court found that the risks to health and safety outweighed any potential curtailment of religious or cultural expression.
Katiba Institute participated as amicus curiae. |
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On 13 March 2021, the Court of Appeal held that the government cannot evict members of the Sengwer indigenous community from the Embobut forest until an appeal before the Court is decided. The application for a stay of eviction was filed by the Sengwer community after the Environmental Land Court (ELC) held that the Sengwer community did not have a historical or cultural claim to the forest and, thus, could be evicted by the government. The Court of Appeal held that the Sengwer had raised legitimate issues on appeal and had demonstrated that, if they were to be evicted, the main issue raised on the appeal – their right to continue to reside in the forest as a hunter-gatherer community – would no longer be subject to judicial review.
Katiba Institute represents the Sengwer community in the appeal. |
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| On 13 April 2021, Katiba Institute and Natural Justice – on behalf of Menengai West Stakeholders Forum – filed an appeal challenging the National Environmental Management Authority (NEMA) decision to grant Sosian Energy a license to develop a geothermal power plant. The appeal argues that the license granted by NEMA should be withdrawn because: the project proponents did not conduct adequate public participation; the environmental impact assessment (EIA) expert and EIA firm were not qualified to conduct an environmental impact assessment; and that the EIA itself was flawed; and that no Strategic Impact Assessment had been conducted on the government’s Geothermal Development Plan. |
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| On 13 April 2021, Katiba Institute along with The Institute for Social Accountability and the National Taxpayers Association filed a petition regarding Parliament’s recent passage of the Budget Policy Statement, Supplementary Appropriations Bill; and the Division of Revenue Bill. The petition alleges that, among other things, the Statement and Bills violate Articles 10, 118 and 201(1) of the Constitution; violate the requirements for allocating revenue to the Counties under 202(2) and 217 of the Constitution; and violate Articles 201 and 223 because they do not comply the constitutional requirements for supplementary appropriations or the prudent use of public money. |
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On 20 April 2021, the High Court issued a judgment in this case, which challenged the President’s appointments to, and composition of, his cabinet. The Court held that the Office of the Chief Administrative Secretary established by the President was unconstitutional and violated the Public Service Commission Act.
The Court also held that a Cabinet Secretary who served in President Kenyatta’s first term must be subsequently approved by the National Assembly before serving in the President’s second term. The Court also held that any principal secretary must be shortlisted, interviewed, and recommended for nomination before being appointed by the President. To determine whether the President’s cabinet complies with Constitutional diversity requirements, the Court finally held that the President must provide updated information on the current members of the cabinet.
Although the judgment means that several cabinet positions are unconstitutionally held, the Court suspended the judgment because of the additional stress the process of rehiring cabinet members would create during the COVID-19 pandemic.
Katiba Institute participated as an Interested Party |
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| On 26 April 2021, Katiba Institute and Prof Makau Mutua filed a petition against the Judicial Service Commission (JSC) stemming from their requests for information on the recruitment for Supreme Court judicial positions and the evaluations of the applicants. Katiba Institute and Prof Mutua have argued that the JSC’s failure to publish and provide information about their recruitment and evaluation processes violates the right to access to information under Article 35 of the Constitution. |
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| These are links to articles that appear on the Star newspaper every Friday (click on a title for the full text) |
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| These are a collection of articles that are of interest to Katiba Institute. |
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| These are links to publications produced by the Katiba Institute. |
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