Kenyan Legal Issue No. 18

KL Issue 18 – June, 2015

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Kenyan Legal Issue No. 18: June 2015

INTELLECTUAL PROPERTY

OTHER FASCINATING ARTICLES:

THE CONTRITE STATE OF OUR CRIMINAL JUSTICE SYSTEM

WHY HON. ANN WAIGURU MUST STEP DOWN

POLITICALLY CORRECT: AN OPEN LETTER TO MR. PRESIDENT

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TABLE OF CONTENTS

i. EDITOR’S NOTE 1

ii. EU: ENAR CALLS ON EUROPEAN PARLIAMENT TO ADDRESS ANTI-

SEMITISM AND ISLAM PHOBIA IN EUROPE 2

iii. WHY HON. ANN WAIGURU MUST STEP DOWN 5

iv. FORGOTTEN? 7

v. INTELLECTUAL PROPERTY 9

vi. POLITICALLY CORRECT: AN OPEN LETTER TO MR. PRESIDENT 11

vii. THE CONTRITE STATE OF OUR CRIMINAL JUSTICE SYSTEM 13


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EDITOR’S NOTE

Politics in nations all over involve confrontation; which is normal and okay within one’s

constitutional right to hold an opinion. This right however, has been misused. Political life

especially in Kenya has been, and continues to be a notorious playhouse of the insensitive and the

insincere group and one which is characterized by criminally induced actions. Accepting and

respecting basic rights and civil liberties of people or groups whose outlooks differ from one’s own

is not typical in the political setting.

In the light of the recent incident in Kibera, Have politics in Kenya come to such a low that to hit

the government, people must be incited to destroy their own? Why do we let ourselves accede to

wishes of politicians who offer measly sums in the name of handouts? When are we going to break

free from the leash around our necks and being let out like vicious dogs to attack people who are

doing nothing but to help us?

Commonalities have time and again been used to propagate vendetta missions which see them loose

the most, while their masters revel in their castles and luxurious vacations abroad. My heart breaks

for those patients who looked forward to having clinics near their homes, those who were delighted

to finally walk freely at night.

Let us develop or minds, and look beyond variations in political views; to handle conflicting issues in

a pragmatic way. At the end of the day, the poor are the only ones who feel the blunt and pain of

each blow in any political upsurge.

It was not long ago that the country was on fire with unthinkable loss of property and lives, yet we

keep making the same mistakes. Talk of cutting off your nose to spite someone else’s face! Will

Kenyans ever learn?

Regards,

Stacy Jayo

Senior Editor Kenyan Legal e-magazine.



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EU: ENAR CALLS ON EUROPEAN PARLIAMENT TO

ADDRESS ANTI-SEMITISM AND ISLAM PHOBIA IN EUROPE

Editor-in-Chief Willy Fautre


Website: www.hrwf.eu

European Network Against Racism (ENAR) Chair Sarah Isal made the following statement at a hearing

organized by the European Parliament's Civil Liberties Committee on Anti-Semitism, Islam phobia and Hate

Speech. The hearing took place at the European Parliament on 29th June.

Anti-Semitism is deeply rooted in Europe, as its resurgence after the Holocaust proved. It is with

great concern that we have seen a general increase over the last years. The Community Security

Trust (CST) in the UK reported an increase of 60% of violence committed against Jews in the EU

between 2008 and 2014. According to the FRA survey, Jews in Europe are increasingly afraid of

being verbally harassed (46%) or physically attacked (33%). In Belgium, the equality body reports

that complaints received for anti-Semitic incidents have increased from 83 in 2013 to 130 in 2014

(+56%).

In France, a 2013 report from the French National Human Rights Institution reveals that anti-

Semitism is not always understood properly, is often seen either as a phenomenon of the past or as

isolated acts from either violent extremists or neo-Nazi groups, but is rarely seen as a structural

phenomenon.

The extent of anti-Semitism in Hungary came to the forefront when, in November 2012 a Jobbik

MP called in the Hungarian Parliament for a list of Jewish civil servants, after which there was no

immediate outcry from other government officials. Similarly in Greece, extremely anti-Semitic

rhetoric and literature have been associated with elected members of the Golden Dawn party.

Understanding the complexity in which anti-Semitism manifests itself is key in combatting it. For

instance, Hungary and Greece feature high levels of indigenous anti-Semitism and neo-Nazi activity,

but lower levels of physical violence compared to countries such as France and Belgium in which

anti-Semitism is much less socially acceptable, but violence is more common.


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Bullying and prejudice at school are frequent for Jewish children. In Hungary, there are increasing

reports of parents moving their child to Jewish schools following incidents in mainstream education.

Jewish children also experience discrimination or segregation in education.

There has also been a worrying increase of Islam phobic incidents over the last years.

In France, the number of attacks against Muslims was multiplied by 6 following the Paris attacks

compared to the same period in 2014, according to the Collective against Islam phobia in France

(CCIF). In Sweden, attacks on mosques have increased. In Italy, official Islam phobic reactions

including those by the Veneto educational authorities are frequent.

Muslim women are particularly targeted by violence. Because public debates focus on Muslim

women and the wearing of the headscarf, veiled women are reduced to their religious signs in the

view of many and are thus becoming privileged targets of Islam phobia.

ENAR shadow reports and FRA reports also highlighted that the heightened security context since

the events of 11 September 2001 has contributed to experiences of direct and indirect discrimination

by ethnic and religious minorities in Europe. In particular Muslim communities, and those perceived

as belonging to Muslim communities, have been amongst the most vulnerable, at times victims of

backlash from wider society after terrorist attacks and then victims of policy responses to these

attacks.

Muslim people tend to experience the most severe labour market discrimination, as evidenced

ENAR Shadow Reports. Muslims, and in particular Muslim women, also face discrimination due to

restrictions to the right of wearing religious symbols in national laws and practices, for example in

France, Belgium, the Netherlands and Spain.

Anti-Semitism and Islam phobia are the products of different histories and ideologies; and they

cover diverse realities and types of manifestations which are specific to each.

However, anti-Semitism and Islam phobia are both specific forms of discrimination and racism in

which attitudes; behavior, institutional patterns and policies reject, exclude, vilify, or deny equal

treatment to people, based on their real or perceived Jewish or Muslim background. They have the

same concrete implications on the physical, psychological or financial situation of individuals.

Despite the EU and national equality legislations, the specific direct and structural discrimination

faced by Jews and Muslims imply that existing legal instruments and policy measures are not enough

to ensure equality of outcome.

The response to anti-Semitism and Muslim hatred should therefore deal with these common and

separate factors. ENAR calls the LIBE committee to include in its resolution (or resolutions) on

anti-Semitism and Islam phobia that the European Commission should ask Member States to adopt

specific national strategies with concrete policy goals, on the model of the National Roma

Integration Strategies, to address anti-Semitism on the one hand, and Islam phobia on the other.


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Policy goals should be specific to each national context and address each fields of life, in particular

employment and education.

History has shown time again that there is a connection between hate speech and hate crime. Hate

speech, creates a climate in which perpetrators of racist violence feel that the society condone their

behavior so it is imperative that hate speech should be addressed. In some cases, and in the respect

of international human rights law, they should even result in criminal proceedings.

We also hope that racist, anti-Semitic and Islam phobic violence feature in the European

commission bilateral talks with member States on the enforcement of the EU's Framework Decision

on combating racism and xenophobia.

There are many more issues that should be addressed, and we hope there will be in the context of

the panel discussions. In particular in terms of larger context, we should keep in mind that to

prevent discrimination and violence, more long-term social investment in education, housing,

employment and health policies , as well as in intercultural dialogue and social cohesion programs,

are crucial to stop the massive disenfranchisement of sizeable parts of the population, which

nurtures violent extremism.

It is important to tackle these forms of racism and hatred - as well as anti-Gypsyism and Afro

phobia - jointly, so as to show all forms of racism and hatred are of concern to all, and are equally

important to address. Now is time for cooperation and alliance building to keep in mind the greater

cause, beyond attempts from some to pit communities against one another. In the context of the

creation of a new group in this house which gathers those who would like to promote racist,

xenophobic, Islam phobic or anti-Semitic ideas, policies and practices, this is a matter of urgency.

View all "Intolerance and Discrimination Based on Religion or Belief" newsletters:

http://hrwf.eu/newsletters/intolerance-and-discrimination-based-on-religion-or-belief/

http://r20.rs6.net/tn.jsp?f=001oU1oOmGwj52stHPRoxFmgah1DkKtckQIrQmhWfYhKlMsyfpEpe_WwIVm4AIGiYLYW-eqDo5FZx5hocg4RhzXavDuRJYVb6DEEjv4zhnP1V2LfByEHIQar4gFw2lxwJy8slTa_4TI_IxmhFEgCvToBu1YUTUS2URsCUoHMZhWrRtu47SoBVz6KurxYKz6y0GTa0iGH2RXwtnltsPFsW-plrQojw5TUkIeHurVkaKhThq01KRrfd8d9YQoeyb_D-jF6DWWSqMrZwY=&c=JVVT532GyMO1R5kuES091MJVln2JhjTjCQq0GX2olJ08WQLdlxTKZw==&ch=TRH5VUxbx2ZPuhoPlYVhJxi1551JKlwwMrFdX7SYt0czwANWKl8Grw==


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WHY HON. ANN WAIGURU MUST STEP DOWN

Otieno Arnold Odiembo

The writer is a law student at Kenyatta University School of Law and A blogger:

otienoarnold2015.wordpress.com

In the Biblical context, crucifixion is a term used when there is a need to have an individual pay for

their sins. Law in itself states that one is innocent until proven so guilty. This however has been

vicissitude by actions of our so called President Mr. Uhuru Kenyatta. Truth be told, it is only fair

that when a parent has a piece of meat no matter how small, it is shared equally and not equitably

amongst the children.

Some weeks ago, The President of this superlative nation came out strongly and denounced the act

of corruption as not only being a thunder to this nation but one that has ensured a stagnated nation

at large. He thereafter read the names of prominent personalities of this nation who had been

delineated with the mad of the vice and asked those holding public offices to ‘step aside’ until that

time when they would be ‘cleansed’ and it affirmed that the said were such mere allegations and no

truth on the matters that made the corruption perpetrators. This gave a number of Kenyans hope

me inclusive, who is not so much a supporter of the deeds of the Jubilee government not only as a

result of political inclination but also due to the fact that I believe often than not, this government

has the capability to perform better than it has.

A number of Jubilee babies were asked to step aside and currently some orphaned-the likes of

Charity Ngilu- while others still ‘held in rehabilitation centers like drug addicts still waiting for a go

ahead to be welcomed back to the society’. Many have cried and expected to return home but

nothing has changed. This was a move that soothed the heart of Kenyans and was a breakthrough of

change and the fight against corruption. For instance I knew that from this point in time, none, not

even the opulent in the society would escape this sword as may be compared to that of Alexander

the Great which pierced through even the hardest armor. This was where we as Kenyans through

our president had said enough is enough and change would take effect and we would take the fight

against corruption through thick and thin.

Then came the’ Anne Waiguru Saga’ on NYS money and other related issues. It was initially revealed

to the public on issues of corruption within the institution and later, Hon. Anne Waiguru came out

to claim the role of a whistleblower in this issue. Most times human beings have a character that

when things go out of hand they then find excuses to justify their purity and how they tried to fight

the ‘wrong happenings’. There have been a number of people who have come out to state that they

have evidence showing the diddling of Hon. Anne Waiguru on the issue at hand. But what has

happened even after the said? The president and his blanket armory-jubilee government- have come

out to protect her as the hen does her chicks in the presence of an eagle. They have stated her

innocence and stood by her through these ‘tough true times’. The question most Kenyans are left

asking is why is Hon Anne Waiguru getting special treatment? Is there a more intense relationship


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between her and the Jubilee government or rather the president and her than we know? Because

honestly speaking even those deemed to have helped Uhuru in galvanizing votes for instance Charity

Ngilu have been thrown to the den of lions without any sign of rescue coming their way. Why then

is Waiguru being protected this much?

What I am made to understand is that this government started with promoting the issue of ‘stepping

aside’ and as such it should apply to all with related calamities that warrant stepping aside and for

this instance, it being corruption. Anne Waiguru has been accused in being corrupt and as such it

would be justified for her to face the same ‘hanging rope’ that was used on ‘her brothers and sisters’.

This would play on the safe side of the government as it would come out clearly that though not all

animals are equal in the jungle, but when they visit the beach they are treated as such equals. Failure

to this, the ‘neck demanding’ that has been going on should still take effect and thus no one should

state that the move is in any way erroneous. WAIGURU MUST STEP ASIDE FOR THE SAKE

OF PEACE.


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FORGOTTEN?

By Lucy Monyenye.

3rd Year Student

Kenyatta University School of law

[email protected]

Intersex Refers to a condition whereby an individual has characteristics of both sexes. Individuals

possessing this characteristic may at times be referred to as hermaphrodite. These individuals are

born naturally like any other and the only difference is the presence of the male and female genitalia.

As such, these individuals cannot be classified as either male or female at birth.

At other times, this condition may not be established until puberty. Where physical conditions do

not show at birth, at adolescent stage girls may break their voices while boys grow breasts. This new

trends in the young adolescent will show the lack of a traditional distinct sex in the child and will

lead to show an intersex condition.

Science has overtime come up with ways to help this individuals retain one type of sex through

different procedures. They include surgery and therapy. These procedures are quite costly. Children

who are from families that cannot afford them are at a disadvantage, because they will either grow

up with both sexes or will have the corrective procedures much later in life.

A child who cannot afford surgery will go through some years in the same state. This then brings to

question the rights of this child. A child has a right to be issued with a birth certificate and a name at

birth. These are forms of identification that are of a basic nature as a measure to protect this child.

The sexes that are common in all legal documents are female or male. This leads to the question,

where are such children placed? They are born, we have them among us as our children, neighbors,

friends or even just people we rub shoulders with in town. Why has nobody recognized them? They

may be few in the society, but does that warrant them to be treated as outcasts?

Children are first human beings before we categorize them to male or female. They have special

rights as they are minors and certain measures should be taken to ensure their rights are protected.

The children who are born intersex should be known, data that shows how many they are and a law

that would protect them is lacking. The law should maybe talk about the corrective procedures,

when it would be necessary for it to take place and the consent needed. This would prevent situation

whereby a procedure is undertaken too early in the child’s life and at some point in their life they

realize it is not the sex they are mostly affiliated to. The data will help show how many are born and

a track of their lives to be able to protect them.

We live in a conservative society. One that would rather burry its head in the sand than come out

and speak about anything the society would find strange, obscene or a taboo.


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The community has not been helpful on its part. The parents of intersex children have kept it a

secret instead of being a voice to protect their child. The rest of the community has been busy

stereotyping these children making them face a certain level of stigmatization that causes them to

hide the truth of who they are.

Australia and Canada are some of the countries that have passed laws that seek to protect the

minority of this nature in the community. Legal precedence has been set in a number of cases such

as:

National Legal Services Authority vs Union of India and Others 2014

Case Sentecia No. T-551/99

Petition no. 266 of 2013 HC.

If we proceed ignorant to the presence of these children, we will be discriminating against the very

children we claim to protect. They do not choose to be born that way. They happen to be different

as such we should protect them.

In Kenya, written law to provide for these children is missing. The best source of law we may have

is the precedence the court has set in less than five cases in the last decade. The latest being the case

of a young girl who was denied a birth certificate which is a basic document.

There are a few organizations that lobby for the rights of these children among other minority

groups. These groups have done a lot, but more can be done if every single person who has a role

plays their part. Let us raise our voices for the forgotten!


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INTELLECTUAL PROPERTY

Series I

This paper gives a nutshell of the History of Intellectual Property. Series II will proffer the writings

of immense Philosophers and The provisions of the early Intellectual Oriented Lex.

Tracing Intellectual Property: Theoretically

Generally, Intellectual Property (herein after IP) is a division of law that is regarded to protect the

expressions of persons. John Locke a great Philosopher of his time did assert as follows “that a person

should enjoy the fruits of his labour.” The diction he utilized was back in the 17th century; thus, 1600.

Well, the need laud John Locke’s assertion is prudent as it provides the basis of where one can

initiate to analyse the factors under IP Law. Thus, as much as the author will be attaining a positive

monetary value from the works executed, the society will also gain the relevance of a given IP as due

to the incentive of protection, one will keep on coming up with new inventions that will make a

man’s life swift and/or easy: this views are backed by William Landes and Richard Posner.

World Intellectual Property Organisation defines IP as:

the rights in relation to: literary, artistic and scientific works; the performance of performing artists,

phonograms and broadcasts; inventions in all fields of human endeavour; scientific discoveries;

industrial designs; trademarks; service marks and commercial names and designations; and all other

rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields.

In tracing the elements that build up IP Law within a society, authors have settled back in the

mediaeval Europe (National Paralegal) and also Greece (http://plato.stanford.edu). Thus, there was

a group of persons “guilds” who were blessed by the then Governments to harness the industrial

activities. The aforementioned persons were regarded as a scheme that thwarted the IP Rights, as

they executed their duties in such a manner that could be regarded as fogging the paths that could

lead to realisation of IP Rights or better IP Laws.

National Paralegal tags guilds as follows:

These guilds exercised control over what items could be imported, marketed and produced and the

manner in which new inventions, devices and procedures could be introduced to the stream of

commerce. Because the authorities for these guilds were given by the governments, and because they

concentrated the power to regulate an industry in a select few, and were not earned by innovation,

skill or creativity, these guilds did far more to stifle creativity and invention than to encourage it

(www.nationalparalegal.edu).


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As it is vividly portrayed in the excerpt herein above, that the guilds were used as a regulatory

weapon against the society, in the sense that it had to “define” what was worth planting and/or

implementing in a society vis-à-vis IP.

World Intellectual Property Organisation (hereinafter WIPO), in their domain, they have

concentrated on the lex documents that have elements of IP from the year 1883 to 2007

(www.wipo.int). These documents are imperative tools of understanding the dimension that the IP

Law has been taking since time immemorial and how it is developing, not forgetting the manner in

which various phraseologies are attached with wide definitions (WIPO).

In the Stanford Encyclopaedia of Philosophy, it is vividly asserted that elements of IP have been

lauded in different societies even though some lacked the lex to protect and/or guide the citizenry

on how to go about IP Rights. In lauding Greece, it is provided under the same encyclopaedia that,

the State had granted certain persons rights; the persons who were regarded as the Chefs of the

Greek Sybaris ‘500 B.C.’ had policies that granted them monopolies that lasted for a year or so

(http://plato.stanford.edu).

Therein, it is acknowledged that Vitruvius could not persons who aped others works and were

punished for the same. In the Roman Empire it is noted that there was no law but it was noted that

one Fidentinus was caught aping epigrammatist Martin’s work without lauding him

(http://plato.stanford.edu).

As it can be noted, the elements or traces of IP have been existing since time immemorial, regardless

of the fact that the name IP and the other specific names (Trademarks, Patents, Copyrights et al.)

therein were not given to them.

Author: Ombo D Malumbe


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POLITICALLY CORRECT: AN OPEN LETTER TO MR.

PRESIDENT

NELSON OTIENO OKEYO

(The writer is Nelson Otieno Okeyo 3rd Year Law student, Kenyatta University Email:

[email protected] Partnerships Director, ALT)

‘It is good but not prudent to undergo a drastic digital metamorphosis at this embryonic stage of

achieving our millennium development goal, which is the Vision 2030.’

So far so god, But look, I have a flash back to the campaign period. Apart from the fact that it was

an expensive one involving competitive use of jets, it was also full of several promises that critical

minds may be interested in evaluating in terms of their achievement. My evaluation today is not

inclined based on my political thoughts and opinions which are strong and reasonable anyway. A 24

hour economy was one of the leading promises. Many did not understand it but a few intellectuals

did, the bright ones knew its possibility was near to impossibility. When looking at the recent notices

barring the PSV Vehicles from travelling at night, one is left to conclude that this was just a mere

slice hope and the governing coalition did not intend to implement it, leave alone meaning what they

promised. How can a 24 hour economy run with the transport industry inactive for a half of the

imaginative 24 hours? The Laptop project, a rather emotive one though not like the LAPPSET and

Standard Gauge Railway project. Most of us will be irrational here, but look; I have said a countless

times that no African country can survive economically for long without the support from the West,

the East remaining constant. Call it my theory I will not mind. It is good but not prudent to undergo

a drastic digital metamorphosis at this embryonic stage of achieving our millennium development

goal that is the Vision 2030. What Kenya need as long as the education is concerned is a proper

curriculum that will make good boys out of men and solve the problem of unemployment in Kenya.

That is when the laptop project can be effective to broaden the workforce in an already established

job market. A logical evaluation has it all, when a student misbehaves in school, the teacher asks him

if that is what they are taught at home and the same applies when a student misbehaves at home

where parents ironically asks whether that is what they are taught at school. In the end we bring up

students very excellent in passing exams but not valuable in our society. Mr. President, you have

failed me in this, but there is still some time, work on modalities to improve the curriculum and let

the laptop project smoothly come later. Again, Constitutional implementation is famous ringtone

from CIC corner of the capital city. It is a sent message that has not been delivered to the Mr.

President, No, the presidency to be precise because the president and the advisors are jointly to

blame. This is perhaps the greatest undoing for the Jubilee government since the constitution is the

bedrock upon which the success of this dear country pegs. The rising cases of disregard to court

decisions, which are also among the sources of law, the controversial appointment of political rejects

and fellow kinsmen to several key portfolios in the country is just is just an example of the fragrance


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in the breach of the rule of law and to a greater extent the inconsistency with the jubilee manifesto

of digital control of issues on the matter of National Cohesion. Kudos Mr. President. But it seems

some English words are losing their meaning in Kenya, perhaps because Kenya is no longer dating

the West. In my opinion, the word national cohesion does not mean the union between the two

tribes that form the ruling coalition by pretending to be healing the unhealed wounds of the 2007

post-election violence. But it is bringing together of all the tribes and creating an inhabitable

atmosphere of nationhood, something that am ashamed to say has not been achieved, despite

desperate attempts being put in place. Furthermore, it’s not all about healing the 2007 wounds.

Remember the Wagalla massacre and what has to be done after the Westgate attack. May be the

advisors misled you to concentrate on healing the 2007 wounds because of the ICC issue at hand.

They forgot to remind you Mr. President that you made a solemn assurance less than a year ago that

this was a personal matter and therefore it should not be allowed in any manner whatsoever to

influence the policy decisions that affect every Kenyan.


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THE CONTRITE STATE OF OUR CRIMINAL JUSTICE

SYSTEM

By Geoffry Mbui

The Writer is an alumna of Kenyatta University. His interests include critical thinking and

reason, research, human rights advocacy and philosophy. He draws his in philosophical

inspiration from John Stuart mill, Karl Marx and John smith.

Criminal justice is the system of practices of institutions and

governments directed at upholding social control, deterring and

mitigating crime, and sanctioning those who violate laws with criminal

penalties and rehabilitation efforts. The concept can also be understood

as the application or study of laws regarding criminal behavior.

It is important to note that 'criminal justice' includes the word 'justice';

laws applied to those accused of crime should be fair. Justice, however,

refers not only to the fair trial accorded to accused persons but also to

the just retribution for victims of crime. Criminal justice is always a goal

to be met or an end to be reached. The law should be the means to that end. Every person or organ

of state involved in the arrest, prosecution, defense, or judgment of a suspect aims - or, at least,

should aim - to be fair, both to the suspect and the victim of crime. However, this goal is not always

met. This necessitates flexibility in the application of laws and the amendment of unfair laws. The

judicial power of interpretation can also be employed constructively to achieve justice where it

would otherwise not necessarily be guaranteed by the letter of the law.

Our criminal justice system is fallible. We know it, even though we don't like to admit it. It is fallible

despite the best efforts of most within it to do justice. That’s my description of the Kenyan criminal

justice system. Going by police constable kirui trial, who was acquitted by the court despite the

overwhelming evidence to support his murder charge, one wonders whether there is justice in our

system.

Kirui case can only confirm one thing; that the criminal justice system needs serious reforms. It is

naked justice that knows no shame or conscience. It is not even blind justice. It is rotten justice

where the common man can be shot dead like an animal and the aggressor will never face justice. It

is testimony why there have been so many police killings in our slums and rural areas without any

one of them facing the law. To the eye witnesses that saw the horror of the shooting in cold blood;

to the world that saw it played on international networks over and over again, that scene will remain

engraved in their memories.


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The case is one among many incidences where accused persons have been able to walk free from

our courts. There’s plenty of reason to despair the sorry state of our criminal justice system and the

havoc it wreaks on the lives of too many innocent victims and their families. There are many factors

which hinder proper administration of justice within the system. However I will deal with legal

challenges and the challenges brought by the fragile investigative side of the state.

The Criminal Law Amendment Act No. 5 of 2003, brought sweeping changes in the criminal

statutes. This Act changed the laws on admissibility of confession by inserting Section 25A of the

Evidence Act wherein it is stipulated that a confession or admission of a fact tending to the proof of

guilt made by the accused person is not admissible unless it is made in a court of law. On one side

the confession or admission of fact tending to proof of guilt is not admissible unless made in court

and on the other hand Section (29 Evidence Act) is kept intact which talks about circumstances

under which a confession made to a police officer shall be proved. Similarly Sections 26 and 27

stipulate how the confession made by the Accused is admissible.

Apart from being contradictory in letters and spirit these provisions create nothing but confusion.

Section 31 which dealt with discovery in consequences of information received from Accused is

deleted. It gives a fatal blow to the already fragile investigating side of the state. Requirement that

confessions may be made before magistrates does not seem to have been well thought. As various

issues may arise; whether the provision is constitutional because it does seem, that the magistrates

are placed in dual roles namely; judicial officers and Investigators.

Whether these dual roles are contemplated under the Constitution? It cannot be because the Judicial

Officers cannot wear more than one hat. Is a magistrate to become a witness during the trial

especially if the confession is retracted during the trial? This amendment was perhaps made in

response to international principles of protection against torture. Police and investigating officers

sometimes abuse the accused persons physically and verbally during detention and interrogations

through the use of torture. How does the court balance its independence and the protection of the

fundamental human rights when Magistrates become investigators? How does the court balance its

role as the protector of public law and public interest?

To conclude, critical pillars of the criminal justice sector include the police and the Director of

Public Prosecutions. The Police need to be enabled to maintain law and order. There is need to beef

up investigation by acquiring forensic machines and equipment. It is this speedy incarceration of

criminals that will return belief in the justice sector and rule of law. One way of making this a reality

is by ensuring that the judiciary receives its requisite budgetary allocation and not the often miniscule

percentage of what other organs of government get allocated in yearly government budgets.

Transforming entrenched institutional cultures is also not devoid of unwillingness by those affected

by reforms to change. Such attitudes should not be tolerated, as these will render the reform

processes ineffective as experiences from past judicial reform initiatives have unfortunately shown.


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Kenyan Legal Issue No. 18

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