Tuesday, May 8th, 2018
8249TH MEETING (PM)
Country’s Representative Calls Sanctions Proposal by Panel of Experts ‘Biased’, Saying It Lays Ground for International Sanctions
The cessation of hostilities in South Sudan, agreed in 2017, showed no sign of implementation, the Under‑Secretary‑General for Peacekeeping Operations told the Security Council today, saying a ceasefire was “a distant prospect” amid disagreements over its modalities and wider transitional security arrangements.
In his briefing — one of four delivered this afternoon — Jean‑Pierre Lacroix said the parties continued to argue over ministerial quotas in any revised transitional governing arrangement. While President Salva Kiir had pledged to take part in the High‑level Revitalization Forum to resolve the conflict, rhetoric was increasing around extending the Transitional Government of National Unity mandate, as well as preparations for elections, should the Forum not yield an “acceptable” solution.
However, the holding of elections was unrealistic as the Government and Opposition were bent on armed confrontation, he said. “Without consequences, we have no one to blame but ourselves.” The Security Council must use its voice to dispel an unhealthy narrative of regime change that some sought to use against the United Nations in a bid to win popular support.
Ismail Wais, Special Envoy for South Sudan of the Intergovernmental Authority on Development (IGAD), said that since April, the Authority had engaged stakeholders and held a “fruitful” discussion with the President. Speaking via videoconference from Addis Ababa, he urged the Council to continue to support IGAD’s work and that of the African Union, whenever they took measures against violators of the peace process.
Jackline Nasiwa, of the Centre for Inclusive Governance, Peace and Justice, said any hope for unity in South Sudan had been shattered by political infighting. Women had suffered sexual abuse, while children were recruited to fight in a senseless war. She pressed the Council to provide women leaders and civil society groups with funding and the capacity to build a gender‑inclusive political process. “The people are tired,” she said. “Peace now.”
In that context, Council President Joanna Wronecka (Poland), speaking in her capacity as Chair of the Security Council Committee established pursuant to resolution 2206 (2015) concerning South Sudan, drew attention to the 2015 recommendation by the Panel of Experts that the Council impose an arms embargo on South Sudan.
Responding to that proposal, South Sudan’s delegate described the report as biased against his country’s Government, saying it relied on interviews with Opposition members in Nairobi and Kampala. Senior Government officials were described repeatedly as hardliners and painted as obstacles to peace in order to lay the ground for international sanctions. While South Sudan was committed to cooperation with the Panel, it called for one that would report credible and balanced findings.
Also speaking today were representatives of Côte d’Ivoire, Bolivia and Equatorial Guinea.
The meeting began at 3:04 p.m. and ended at 4:09 p.m.
JEAN-PIERRE LACROIX, Under‑Secretary‑General for Peacekeeping Operations, said the peace process in South Sudan was at a critical juncture. Heading into the next round of the High‑level Revitalization Forum, the parties remained far apart on the issues of governance and security, arguing over the ministerial quotas in any revised transitional governing arrangement. Agreement on the modalities of a permanent ceasefire and transitional security arrangements, including for Juba, and security sector reform remained elusive. While the Intergovernmental Authority on Development (IGAD) had worked to narrow the gap ahead of the talks, divergence in the parties’ positions was reinforced by both Government and Opposition officials.
He said President Salva Kiir and his Government had repeatedly pledged to participate in the Forum, but rhetoric was increasing around the unilateral extension of the Transitional Government of National Unity mandate, and preparations for subsequent elections should the Forum not yield an “acceptable” solution. Two weeks ago, the Transitional National Legislative Assembly had been presented with a draft constitutional amendment bill — which would incorporate the 2015 peace accord into the Transitional Constitution — at the time when the very Agreement was under review at the Forum.
Last week, he continued, the Sudan People’s Liberation Movement (SPLM) had held an extraordinary meeting of its National Liberation Council with the goal of advancing peace through reunification of that group and the holding of elections. However, a unified, coordinated approach by all regional and international partners in support of an inclusive political initiative was critical at that juncture in the peace process.
Describing his meeting with Ambassador Francis Deng, a member of the National Dialogue Steering Committee, he said grassroots consultations had been completed and the next steps included the launch of a constitutional review process to incorporate outcomes of the consultations and set the framework for elections, with June 2018 having been cited as the timeline for completing that process. However, the South Sudan Council of Churches estimated that the national dialogue had not been an inclusive process, as many South Sudanese constituents residing in largely Opposition‑controlled territories had been excluded.
He said that holding elections in the current political, security and humanitarian environment was unrealistic and would be counter—productive. Despite the signing of the cessation of hostilities agreement in December 2017, the Government and Opposition were bent on armed confrontation, controlling territory and forcing the displacement of civilians. Between the Forum talks in February and today, military operations between the Sudan People’s Liberation Army (SPLA) and the SPLA‑in‑Opposition had instead escalated, he pointed out. “The cessation of hostilities shows no sign of meaningful implementation and a ceasefire remains a distant prospect.”
More broadly, he continued, hostilities between SPLA and SPLA‑in‑Opposition forces in Unity State had escalated, displacing people and securing Opposition‑controlled areas and supply routes between Bentiu and Leer. On 26 April, hostilities near Leer had found the United Nations Mission in South Sudan (UNMISS) temporary operating base subjected to overhead fire. Humanitarian partners had been forced to evacuate, he said, recalling that the Secretary‑General’s Special Representative, travelling to Leer last week, had seen deserted villages, burned tukuls and ransacked health facilities. The Mission had dispatched a rapid investigation team to verify reports of civilian targeting by military forces allied to SPLA during those operations. Insecurity had also increased in Jonglei, with SPLA having successfully resupplied its position in Waat, and there had been clashes around Opposition‑controlled Akobo.
Emphasizing that sexual violence was a prominent feature of the conflict, he said the latest reports of rape and gang rape in Leer only compounded what was known to be a desperate situation for women and girls, who continued to be victims of appalling violence. “We must respond, and respond quickly, to ensure accountability,” he stressed, noting also that nearly 4.3 million people had been displaced to date, including 1.7 million internally and nearly 2.5 million across borders. UNMISS meanwhile continued to expand its civilian‑protection activities, but success was relative in a complex environment of active fighting.
However, there must be a tangible cost for the continued violence in South Sudan, including for violations of the cessation of hostilities agreement and for broken promises to protect civilians, he said. As a first step, the Council must urge IGAD to make public reports by the Ceasefire and Transitional Security Arrangements Monitoring Mechanism. “Without consequences, we have no one to blame but ourselves,” he said, underlining that the Council must use its voice to dispel an unhealthy narrative of regime change that some of South Sudan’s leaders would like to use against the United Nations in a bid to win popular support.
ISMAIL WAIS, Special Envoy for South Sudan of the Intergovernmental Authority on Development (IGAD), spoke via videoconference from Addis Ababa, first briefing Council members on efforts by the IGAD Council of Ministers to revitalize the peace process. Noting that revitalization was being carried out in phases, he said there remained outstanding governance and security issues between the parties. Since April, IGAD had been engaging with stakeholders, and a fruitful discussion with the President of South Sudan had also taken place. Going forward, the Council of Ministers would step up its engagement to bridge outstanding gaps and invite the parties to further discussions in order to identify areas of compromise. Another challenge that could undermine the credibility of the peace process was the persistent violation of the cessation of hostilities agreement, he continued, emphasizing that violators and spoilers must be held to account in order to deter impunity. It would be difficult to create trust so long as violations continued, he said, adding that the credibility of the revitalization process would also be at risk. Commending the Security Council’s support for IGAD and the region, he said it was critical that it continue to support IGAD and the African Union whenever measures were taken against violators of the peace process.
JACKLINE NASIWA, Centre for Inclusive Governance, Peace and Justice, said she was speaking on behalf of suffering South Sudanese. She noted that the hope for unity occasioned by the 2011 referendum had been shattered by fighting among political leaders from 2013 to date. Women had suffered gross human rights violations, especially sexual abuse and rape, she said. The country’s leaders had failed to deliver a political settlement, and children, meanwhile, had been recruited to fight a senseless war. Communities were unsafe amid increasing rebellions by militias and inter‑ethnic communal fighting. People were worried about the future beyond the transitional period.
Urging the Government and all parties to commit to the Revitalization Forum process for a peaceful transition as well as fair, free elections, she applauded efforts by IGAD, the Security Council, UNMISS and faith‑based leaders to secure peace. While revitalization of the peace agreement was a must, continued violation of its provisions undermined any stabilizing efforts. The Revitalization Forum, which must be inclusive, was an opportunity for parties and other estranged groups to make compromises. She recommended the creation of an enforcement mechanism to monitor and verify declared ceasefires, emphasizing that IGAD, the African Union and the Council must speed transitional justice institutions. Chapter 5 of the peace agreement, on transitional justice, must be preserved.
Stressing the need for a gender‑sensitive approach to the monitoring of ceasefire violations, she said it was also necessary to reform security and justice institutions. Competing geopolitical and other interests within IGAD had eroded peace prospects, she said, pressing the Council to ensure greater resources towards an inclusive IGAD process, supported by the African Union. It should also provide support to women leaders and civil society groups through funding and capacity‑building for a gender‑inclusive political process, she said, stressing that women were often attacked at water collection and food gathering points, while children were often tortured and killed.
UNMISS, meanwhile, should work with women and others to develop early warning systems and a gender‑sensitive approach to civilian protection. Noting that Juba had been relatively calm, thanks to the Regional Protection Force there, she said with UNMISS stationed in Yei, civilians had begun to return and shops had reopened. Disturbed by allegations of sexual abuse allegations by UNMISS peacekeepers, however, she welcomed the Secretary‑General’s strong zero‑tolerance policy and urged the Mission to speed up investigations of its peacekeepers. She also called for a United Nations policy of mainstreaming relevant training for peacekeepers. “Civil society is not an enemy,” she said, noting that advocates were often arrested, threatened and killed due to their work. Delivering her main message to the Council, she said: “The people are tired. Peace now.”
JOANNA WRONECKA (Poland), Council President for May, spoke in her capacity as Chair of the Security Council Committee established pursuant to resolution 2206 (2015) concerning South Sudan. Describing developments since 8 December 2017, she focused on the final report of the Panel of Experts, submitted to the Committee on 14 March, recalling the Panel had presented its findings on the political and security situation in South Sudan, violations of human rights and international humanitarian law; obstruction of humanitarian and peacekeeping missions; arms procurement and the implementation of sanctions against South Sudan.
On the basis of those findings, the Panel had reiterated a recommendation from its first report, in August 2015, that the Security Council impose an arms embargo on South Sudan. While emphasizing that impunity continued to prevail, the Panel renewed its recommendation that the Committee consider designating additional individuals and entities for sanctions. It noted that there had been no sanctions listings since the designation of six individuals on 1 July 2015. She said the Committee had agreed to send letters to IGAD members, reiterating the obligation of States to enforce the asset freeze established under resolution 2206 (2015), and to request the freezing of bank accounts and assets of designated individuals Marial Chanuong Yol Mangok and Gabriel Jok Riak.
She recalled that on 11 April, the Committee had heard a briefing by the Special Representative of the Secretary‑General for Children and Armed Conflict. During that meeting, she said, she had stated her intention to conduct her first visit to South Sudan, in her capacity as Committee Chair, in mid‑June 2018. She said she would visit South Sudan as well as Ethiopia, Kenya and Uganda, to gain a first‑hand account of the implementation of sanctions in place. On 31 May, the Committee would hold its first open briefing with regional States and all interested States to hear views concerning the Panel’s final report and the implementation of sanctions concerning South Sudan.
ALCIDE DJEDJE (Côte d’Ivoire) deplored the lack of genuine commitment among the parties to the conflict despite the efforts of IGAD and the international community. The people of South Sudan had suffered too much and it was time for those parties to give the peace process a real chance by demonstrating political will and committing themselves to finding a solution. Expressing concern about high levels of violence in Unity, Jonglei and Equatoria States, he called on the warring parties to cease hostilities. Describing the humanitarian situation as the worst in the world, he called for speeding up the implementation of a hybrid court to address human rights violations. He went on to welcome the liberation, on 17 April, of some 200 children by armed groups, adding that sanctions must be strictly respected.
PEDRO LUIS INCHAUSTE JORDÁN (Bolivia) highlighted President Kiir’s recent call for the leader of the opposition to return to Juba, saying that such a development would help reduce tensions. IGAD’s efforts through the high‑level forum for the revitalization of the peace process, while welcome, would be fruitless if the parties failed to take their commitments seriously. Describing South Sudan as one of the world’s most dangerous places for humanitarian workers, with more than 100 killed since 2013, he called on the Government and the opposition to guarantee unhindered and safe humanitarian access. For its part, the Security Council should consider using all available tools against those who failed to comply with the IGAD process.
AMPARO MELE COLIFA (Equatorial Guinea) said her country was extremely concerned and alarmed by the situation in South Sudan. In addition to seeking peace, the Government and other parties had an obligation to save lives and facilitate safe and unhindered humanitarian access. The Government must also cooperate with UNMISS in accordance with the status-of-forces agreement. Welcoming the recent release of children by armed groups, as well as the liberation of seven humanitarian workers by the Sudan People’s Liberation Army in‑Opposition (SPLA‑IO), she emphasized that there must be an immediate halt to human rights violations, including the use of children in armed conflict. For its part, the international community must continue its support for IGAD and African Union mediation efforts.
AKUEI BONA MALWAL (South Sudan) said the report by the Panel of Experts was openly tilted against his country’s Government. While the Panel had visited Juba, it had mainly cited information from interviews conducted with members of the Opposition in Nairobi and Kampala. Senior Government officials were mentioned repeatedly as hardliners in order to paint the Government as an obstacle to peace, he said, adding that one could only deduce that the purpose was to lay the grounds for the justification of international sanctions. Further, the Panel reported — on page 29, paragraph 82 — that opposition forces had limited access to external arms and ammunition, and were increasingly limited to small‑scale guerrilla tactics.
On the other hand, the Panel reported that the Government continued to receive arms through the region, leading its authors to recommend an embargo, he continued. China’s Permanent Mission to the United Nations, in an email cited on page 27, advised the Panel to carry out its activities in accordance with the mandate of the relevant resolutions, and in an objective and just manner, he noted. Associating his delegation with that position, he stressed that the Panel had gone after family members of those already under sanctions on the basis of information provided by the opposition. While South Sudan was committed to cooperation with the Panel of Experts, its report was one‑sided, he said, calling for a Panel constituted to report credible and balanced findings. The Council should focus on other means to end the war and bring about lasting peace in South Sudan.
For information media. Not an official record.
The Director of Public Prosecutions will appeal the acquittal of televangelist James Ng’ang’a and three others in a case in which the pastor was charged with killing a woman by dangerous driving three years ago.
The road crash happened at Manguo in Limuru along the Nairobi-Nakuru highway.
On Monday, the court absolved Mr Ng’ang’a, Mr Simon Kuria, Inspector Christopher Nzilu and Inspector Patrick Baya, who was the Tigoni traffic police boss, of any wrongdoing in the death of Mercy Njeri or colluding to defeat justice. Chief Magistrate Godfrey Oduor, who has since been transferred to Nakuru, in his ruling read on his behalf by Senior Principal Magistrate Karen Njalale, said the evidence of key witnesses, who claimed to have spotted the pastor at the scene of the accident, was not enough to nail him.
According to Mr Oduor, there were inconsistencies and discrepancies in the time of accident and that the claims, some which he said were strange, concocted or exaggerated on the pastor being at the accident scene and which were not in the initial police statements, making them inadmissible.
“After being cross-examined by the accused’s counsel, he said he had seen the accused at Naivasha, yet at the scene of the accident, he was asking who the occupants of the vehicles (of the cars that were involved in the accidents) were, which was a contradiction,” said the ruling.
By throwing out the charge on causing death by dangerous driving against Mr Ng’ang’a, Mr Oduor automatically dismissed the other counts, arguing that the charge formed the basis of the other counts.
But the DPP’s office, through State Counsel Catherine Mwaniki, expressed dissatisfaction with the judgment, which sparked outrage on Tuesday.
“Having been dissatisfied with the finding and ruling of the court, the prosecution prays for the certified copies on the proceedings and ruling to enable us make an appeal before the High Court,” Ms Mwaniki told Ms Njalule on Monday.
On Tuesday, Interior Cabinet Secretary Fred Matiang’i wrote to the DPP Noordin Haji to appeal the acquittal, saying the government is not satisfied with the ruling, arguing that evidence implicating the pastor was overwhelming.
“The ministry notes with surprise the acquittal handed down in the above case where we believe a brazen crime was committed by the accused person,” read a letter from the CS to the DPP and copied to IG Joseph Boinnet.
In the first count, Mr Ng’ang’a was charged with dangerously driving a Range Rover registration number KCD 060Q, disregarding all the circumstances including the condition of the said road and the amount of traffic and caused the death of Mercy Njeri
on July 26, 2015 at Manguo on the Nairobi-Naivasha highway
The pastor was also charged with failing to report the accident involving his vehicle and the other – KBZ 709W – to any police station within 24 hours.
On the third count, he was charged with giving false information to a police officer, Mr Julius Wanjohi, on August 6, 2015 at Traffic Headquarters at Ruaraka that he was not the driver of the car that was involved in the fatal crash.
He also faced a charge of driving an uninsured car since the car did not have a policy in respect to third party risk at the time of accident.
The fifth count brought together the four, which was that they conspired to defeat justice whereby, between July 26, and August 15, 2015 in Limuru, they jointly conspired to mislead a police officer at Tigoni Police Station to defeat the course of justice.
Count six involved Mr Kuria, who had initially confessed that he was the one driving the car when the accident occurred.
The count stated that on July 17, 2015, he lied to a police officer that he was the driver of the Range Rover. Mr Nzilu, a police officer, and Mr Baya were charged with neglecting official duties. Ms Mwaniki said the ruling had been adjourned six times, and even on the final day, she told Ms Njalule that Mr Oduor had asked them to be at the court by 9.30am, but changed the time to noon, only for him not to show up.
Two years ago, Justice Said Chitembwe caused an outcry when he freed a man convicted of defiling a 13-year-old girl because she had behaved like an adult and enjoyed it.
Explaining why he freed Martin Charo, then 24, Justice Chitembwe said that where a child behaves like an adult and willingly sneaks into a man’s house for sex, the court should treat such a child as a grown-up.
In freeing Charo, the judge said it was important to distinguish between the law and morals.
He said it is the law that says a child below the age of 18 cannot consent to sex, and Section 8 (5) qualifies the provisions of Section 8 (1) to 8 (4), which penalise defilement.
He added that it can easily be concluded that it is immoral for one to have sex with a child under the age of 18.
“However, where the same child, who is protected by the law, opts to go into men’s houses for sex and then goes home, why should the court conclude that such a person was defiled? In my view, that cannot be defilement,” he said.
Justice Chitembwe said he was aware that the public would frown upon an adult who engages in sex with such a child, but Kenyans should not forget that times have changed, and that children now engage in sex at very young age.
The judgment was voted the world’s worst court decision for women’s rights by the Gender Justice Uncovered Awards, which recognises the best and worst court rulings on gender equality.
The verdict received the Golden Bludgeon Award by Women’s Link Worldwide, an international organisation of women lawyers.
Recently, the judge freed a man accused of impregnating a minor, saying it was possible that they were both underage when they had sex.Lodgers Tsofa Facho had been sentenced to 15 years in prison by a Malindi court for defiling a 17-year-old girl, contrary to Section 8(1) (4) of the Sexual Offences Act of 2006.
But Justice Chitembwe said that Facho’s age was not precisely determined during the trial, and that he, too, could have been under 18 in 2014.
The judge further said that the suspect, a former student at a youth polytechnic, had promised to marry the girl, and since they had a cordial relationship, it could not be concluded that he had lured her into sex. The judge noted that in most cases, the complainant does not complain, but is forced to by others, because she is under 18.
In Kapenguria, Justice Stephen Githinji freed Moses Munyan after the prosecution failed to tell the victim’s exact age. Munyan had been accused of defiling the girl on January 3, 2017, in West Pokot County.
The particulars of the offence in the main count said the victim was between 12 and 15 years old, but the alternative count indicated that she was 14.
In her evidence, the girl said she was 15, while her father said she was 14. The age assessment tabled in court showed that she was 15 years or below.
The judge said it is crucial for the prosecution to ascertain the age of a sexual offence victim since the age differentiates between the offences of rape and defilement, and the sentence which the offence should attract.
“Failure by the prosecution to do so is fatal to their case. In this case, the evidence suggests that the complainant consented to having sex with the appellant.
“If she was an adult, that is 18 years and above, consent would be an available defence to the appellant, and the offence would have been of rape,” he said.
Opposition leader Raila Odinga is rooting for constitutional amendments to see through the nine-point agenda he agreed on with President Uhuru Kenyatta two months ago. On Tuesday he rallied his Orange Democratic Movement (ODM) party troops behind a proposal to restructure the Executive and introduce a three-tier system of governance.
To achieve the envisaged changes, the ODM leader said, a series of public events will be organised across the country to outline the terms of the March 9 meeting, commonly referred to as The Handshake, to Kenyans.
“Addressing some of these issues may require changes to some of our laws and even amendments to the Constitution,” he said during a party meeting at Elementaita Lodge in Gilgil. “When that time comes, we must be bold enough to pick up the challenge as a matter of duty to the nation.”
His remarks, and their echoing by the party top brass, are likely to raise political temperatures in the country as Deputy President William Ruto and his allies are opposed to any constitutional amendments ahead of the 2022 polls.
That President Kenyatta and Mr Odinga worked on the deal in secret is also likely to antagonise some of their followers, whose political ambitions could be affected adversely by the changing political dynamics.
In principle, Mr Odinga, who has called for Kenyans to revisit the 2005 Bomas Draft on the basis that the current structure of the presidency gives the holder of the office enormous power and authority, is nibbling on the seat of Mr Kenyatta’s successor even before he or she is sworn in.
Under a parliamentary system, Mr Odinga argues, the power in the national Executive is exercised by ministers drawn from the majority party in the National Assembly, but Mr Ruto’s camp argues that any proposal to change the Constitution will take the country back to another round of political campaigns, to the detriment of peace and Jubilee Party’s development agenda.
“Without the changes we envision in the memorandum of understanding, 2022 will be messy. It will come with the same confusion, heartbreaks and, possibly, chaos. We are trying to forestall such eventualities. As a forward-looking and reform-minded party, we must resist the efforts of political shylocks demanding their pound of the flesh out of the handshake,” insisted Mr Odinga.
The nine-point agenda, which will now be implemented by a 14-member team unveiled last week, includes how to deal with ethnic antagonism, lack of national ethos, inclusivity, strengthening devolution, ending divisive elections, ensuring safety and security of Kenyans, ending corruption, and ensuring a shared prosperity.
Mr Odinga maintained that his handshake with President Kenyatta was never about the politics of 2022, saying “it was too significant an event to be reduced to a struggle for positions, promises, and the ambitions of individuals”.
“This country has had elections before. We had Presidents, Prime Ministers and even Chief Secretaries before. There is nothing special about 2022 elections,” said the former PM.
Mr Odinga told the party officials that Kenya is at a crossroads, likened its elections to “mini civil wars”, and warned that leaders must think beyond 2022 and put the country on a path towards lasting unity and meaningful reconciliation.
He said he is prepared to work with old and new allies in the Opposition and in government, and his party members should follow him if ODM is to “take its rightful place in driving Project Kenya and the birth a new nation within the next one year”.
On the sidelines, ODM deputy party leader Wycliffe Oparanya spoke of the importance of amending the Constitution to ensure what was agreed upon by Mr Kenyatta and Mr Odinga comes to fruition. The party’s secretary-general, Mr Edwin Sifuna, asked members not to be distracted by political “shylocks” and should support the handshake.
Franco Wasubu’s vernacular hit song – Ni mwana uriku jaji (What child judge?) has polarised opinion since it was released two years ago.
In the song, the musician questions the judge after being jailed for four years for having sex with a minor who, for all intents, was acting as an adult.
“What child judge knows how to kiss, how to order for beer, how to fix a date and keep it?” go the lyrics in Kikuyu. Was the musician encouraging abuse of children or highlighting the moral dilemma?
Yet this drama is being replayed every day in the courts as judges grapple with enforcing the Sexual Offences Act.
The 2006 legislation stipulates that sexual intercourse with a child under 18 years old is defilement irrespective of whether or not there was consent. The offence carries a sentence of life imprisonment where a child below 11 years is involved, 20 years for children between 12 and 15 years and 15 years for abusing children between 16 and 18 years.
Criminalising sex, even among teenagers where one is slightly older than another, appears to ignore some social and cultural dimensions where children play among themselves. In some cultures, these are encouraged as essential training for adulthood and marriage.
Faced with this, High Court judges have been at pains trying to balance between the rule of law and the social aspects especially when handling appeals from the magistrates’ courts.
“The appeal raises a disturbing issue whether the law comes in conflict with what transpires in society,” observed Justice Luka Kimaru, in one such case before him.
Judges are struggling with the question of “experiment,” among youth in their adolescent stage in life.
“You have a teenage boy and a teenage girl who say they are in love and are going to get married. In that atmosphere, they think and believe it is true that they are actually going to get married,” said Justice Kimaru during an interview.
“It is a social issue which we cannot address legally and we must address such through other ways,” said Justice Kimaru.
Part of the recommendations the judges have made, through National Committee on Criminal Justice Reforms (NCCJR), is the need to relook at the issue of sentencing in such cases. NCCJR was launched in January 2018 to spearhead a comprehensive reform of Kenya’s criminal justice system.
SEXUAL OFFENCES ACT
The NCCJR proposal mirrors those by judges in 2016, during their annual meeting in Mombasa, where they also called for a review of the sentencing under Sexual Offences Act.
The dilemma has been compounded by cases where girls in their testimony in court state they were not forced or lured into the “offence” and would still want to get married and live happily with the accused as her husband.
“The challenge the courts face is how to deal with a case where there is no victim. You question who the victim is and you find that the complainant is the parent but the girl is not complaining,” said Justice Kimaru.
Some parents, unable to stop their teenage daughters from early marriages, also resort to using the law with dire consequences befalling the suitors of their “protesting” daughters. In some instances, teenage mothers-to-be were condemned to single parenthood for the period of the jail term.
Confronted with one such case, Justice Said Chitembwe said evidence showed the two were already talking of getting married and the girl, 17, had committed to that by having sex several times with the man, 21. Her father sought police intervention when they found she was pregnant.
Justice John Mativo also acquitted a man, 21, saying the magistrate had failed to consider the girl’s testimony that they were living as husband and wife.
“It was a serious misdirection of the law and facts for the learned magistrate to conclude that the offence of defilement was automatic,” said Justice Mativo. The matter was also being addressed through elders before police arrested the man who had eloped with the girl twice.
And, in yet another relationship which had resulted in pregnancy, the girl’s mother had testified that she had removed her daughter from the boyfriend’s house several times, which Justice Chitembwe noted was manifestation the parents of the girl were aware of that relationship.
“In this age where young girls are maturing fast and engage in sex knowingly and being aware of consequences, it will be unfair to sentence the boyfriend to 15 years’ imprisonment yet the two parties were aware of what they were doing,” Justice Chitembwe said.
He said defilement should not be limited to age and penetration. “If those were to be taken as conclusive proof of defilement, then girls would freely engage in sex and then opt to report to police whenever they disagree with their boyfriend,” he said.
Kenya National Union of Teachers (Knut) Secretary-General Wilson Sossion has threatened to return to court if his deputy, and alleged successor, fails to comply with court orders.
Through lawyer Jackson Awele Onyango, Mr Sossion said that Mr Hesbon Otieno has continued to hold himself as the Knut secretary-general despite a court order issued last week, stopping anybody from taking over his office.
“It has come to our client’s attention that you have, in blatant disregard of the court order, continued holding out as the Knut secretary-general. Take notice that unless you stop, we have instructions to commence contempt of court orders against you personally,” said lawyer Onyango in the letter addressed to Mr Otieno.
On April 30, during a special National Executive Council (NEC) meeting convened by Mr Sossion to discuss set agenda whose notice had previously been given, a faction of members introduced and passed a motion to suspend Mr Sossion as the Knut secretary-general.
On the same day, a subsequent meeting of a special National Advisory Council (NAC) nullified the decision by NEC. However, despite the NAC decision, Mr Otieno has continued to hold himself as the Knut secretary-general, prompting Mr Sossion to go to court and obtain temporary orders pending the hearing on May 10.
Meanwhile, a group of teachers from the North Rift on Tuesday came to the defence of Mr Sossion against calls for him to step down.
The teachers, drawn from 20 Knut branches, termed Mr Sossion’s ouster illegal, saying that they will solidly remain behind his leadership.
Speaking in Eldoret town, the officials downplayed the move to suspend Mr Sossion. “A few individuals cannot make decisions unilaterally without involving all the stakeholders in the union and assume their views are binding. As North Rift branch advisory council, we remain behind Mr Sossion,” said Knut Wareng branch executive secretary John Bor.
Separately, Knut executive secretaries from Nyanza region criticised the act of ousting Mr Sossion.
Led by Nyanza region chairman Gilbert Nduru during a meeting with all 21 secretaries in Kisii, they said they still recognised Mr Sossion as their leader.
“We recognise Mr Sossion as our secretary-general and also as a nominated MP,” said Mr Nicholas Nyang’au, the regional secretary.
Mr Nyang’au said Mr Sossion should be given time to address issues which are affecting teachers such as promotions and delocalisation.
However, in Embu, teachers supported Mr Sossion’s removal and told him to respect the NEC’s decision. Embu Knut executive secretary Josephat Kathumi said Mr Sossion could still serve teachers and other workers in Parliament even if he was not their spokesman.
The acquittal of self-styled televangelist James Ng’ang’a over a death case exemplifies the capture of the Judiciary, police and investigative agencies by corruption. It is unbelievable that the investigators could conduct such a shoddy inquiry and present unconvincing evidence to a court that looked all too unquestioning to an otherwise straightforward case.
Right from the time of the accident, when his car ran over and killed a woman in Limuru, it was evident that Pastor Ng’ang’a was going to escape easily. Police officers investigating the matter were quick to falsify evidence and even mislead Inspector-General of Police Joseph Boinnet.
And the kind of police protection the pastor was accorded pointed to a man with connections in the upper echelons of the security system.
The whole circus played out during the trial and, with what looked like an acquiescent court, the matter was inevitably thrown out and the preacher left to go scot-free for lack of evidence. Curiously, the presiding magistrate was also transferred and, although that is purely administrative, the coincidence is unmistakable.
It is not by default that the investigations were bungled; it was all well-orchestrated. And it is this recklessness and casualness in handling serious legal matters that spawned the public outrage that the case has elicited.
Yet this is not an isolated case; there are several others, though they may not have received the same publicity as this one. But they all depict the rot in the Judiciary, the Kenya Police Service and the Directorate of Criminal Investigations. Such are the practices that demean and create disillusionment in the justice system.
Fortunately, Interior Cabinet Secretary Fred Matiang’i is seized of the matter and asked the Director of Public Prosecution to appeal the ruling — obviously in response to the public uproar. That should be expedited.
Importantly, this should jolt the authorities to action. Chief Justice David Maraga and Mr Boinnet must direct internal investigations to determine how and why this case was bungled and bring the culprits to book.
The courts and the police service should not be turned into bases for laundering criminals.
Within a month of his election as Ethiopia’s Prime Minister, Dr Abiy Ahmed has made three significant foreign trips: To Djibouti, Sudan and the just-concluded two-day state visit to Kenya. The clear message is a quest for closer ties and co-operation.
Top on the agenda is increased cross-border trade, the fight against terrorism and developing infrastructure. Kenya and Ethiopia are alive to the threat posed to regional stability by Al-Shabaab terrorists in neighbouring Somalia.
Indeed, both are involved in the regional military effort to stabilise their common neighbour, Somalia.
Investment in regional infrastructure is crucial; no country can develop in isolation. The PM has pledged to focus on the Lamu Port-South Sudan-Ethiopia Transport (Lapsset) corridor. This includes a road linking Isiolo in Kenya to Addis Ababa through the border town of Moyale. The Ethiopians have completed their section.
Another area crying out for co-operation is electricity supply with Ethiopia boosting hydro power generation. But there is also a huge solar potential. In aviation, Ethiopia has an enviable tradition. Co-operation through marketing and exchange of expertise is a possibility. But there are also socio-political challenges: Kenyans in Ethiopian jails, rebel activity near the border and the crackdown by Addis Ababa that has seen tens of thousands of Ethiopians seek refuge in Kenya.
As Kenneth Stanley Njindo Matiba’s ashes settle whence they came from, Kenya is the poorer; the role he played in making the country a better place cannot be gainsaid.
In his 85 years, Matiba lived well — for the living and the yet-to-be-born — especially in the first five decades. But it is on the days following his death that the country should focus to harvest the ‘Second Liberation’ icon’s best gift to humanity.
Unlike South Africa’s Julius Malema, who exhorted Winnie Madikizela-Mandela to give her followers a “signal” on how to move forward, Matiba’s sign is clear: Plan your life as one who will live forever but live as if you will die the following day.
A good illustration of that is a story in the April 22 Nation, which had excerpts from a Hansard report on how some MPs discussed the 1990 detention of Matiba and his fellow multi-party democracy advocate Charles Rubia, 28 years before he passed on.
Although we did not get to read the entire debate, it is not difficult to imagine how those MPs felt on being publicly reminded of what they said about men who were suffering for fighting for the greater good of the nation that many of them were to personally benefit from.
And although some of those who were part of the system that persecuted Matiba preceded him in death, some went on to hold much higher positions in government. In fact, one of those who gave the fieriest defence of the detention holds a key post in one of the most crucial commissions as far as national unity is concerned.
The post-Matiba period and its attendant testimonials have brought to the fore the importance of service to the nation. Though witness accounts have sought to present him as near-perfect — as they always do after death — the truth is, Matiba was as fallible as any person but one who knew when mistakes had been made and went to great lengths to correct them. He was willing to pay with his health and wealth to have oppressive laws removed.
As a Cabinet minister, he could have continued enjoying the trappings of power but didn’t.
More importantly, in Matiba’s death, we saw how fast and easily Kenyans can put aside their superficial differences and come together for a common purpose. Politicians, captains of industry and everybody else was mourning him. One’s last name, parentage or region of birth or abode mattered not.
Which brings me to the popular concept of regional balance in recruitment and appointments to public service.
Granted, every Kenyan has a right to employment. Every Kenyan must be facilitated to fend for themselves and their families. Every Kenyan must be granted a fair chance at opportunities. But when it comes to leadership, it serves the country better if the best person for the job is given that opportunity.
That brings to mind a debate I witnessed in the National Assembly from the press gallery a few years back. MPs were discussing the shortlisted for the chairmanship of a commission. All the six, who had been ranked according to their score in the interviews, were women.
The debate was acrimonious and the language used by specific male politicians to describe some of the candidates wanting. Eventually, they settled on the fourth-placed candidate. The highest ranking, a professor to boot, was rejected by virtue of being of the same ethnicity with some of the commissioners. Ditto the second- and third-ranked. But it later emerged that either misinformation or another consideration was used to deny the top three the job.
As the nation puts the life of KSN Matiba into its collective memory, the National Cohesion and Integration Commission, which is still struggling to make an impact, should take the lead in striking the balance between regional balance and competence in public service posts.
I feel an immense privilege and pride today in celebrating Europe Day here in Kenya. This is not just for my unquenchable Euro-enthusiasm but also because of greater convergence between the values that we uphold with the Pan-Africanist foundations Kenya pursues: Democracy, inter-ethnic cooperation, free trade, regional integration and respect for diverse people’s rights and dignity.
My grandparents saw the best of their adult life stolen by two world wars while both of my parents were 20 in 1943, when Europe fell into its darkest horror. Accordingly, our forefathers set themselves on translating “Never Again” into solid foundations. Those foundations, and the shape they took over the past 61 years, are called the European Union. Any doubt about it should be measured against the most fundamental of all of its achievements: We effectively abolished war as a way to settle our divergences and disputes.
The EU is solidly founded on some fundamental values: Democracy, rule of law, universality of human rights and of fundamental freedoms, respect for human dignity, principles of equality and solidarity and respect for the principles of the United Nations Charter and International Law. This is also why we support Kenya in the strengthening of the UN headquarters in Nairobi.
Unity and diversity, as President Uhuru Kenyatta said last week, are at the heart of Kenya. Unity in diversity is, in fact, the EU’s very motto, binding together our 28 nations. President Kenyatta’s handshake with Mr Raila Odinga bridged political and ethnic divides and provides renewed hope that Kenya is back on the path to delivering to its people the prosperity and happiness they deserve. In that endeavour, the EU is, definitely, Kenya’s most reliable partner today.
The EU aligns its development assistance to Kenya’s policy framework. Of the four flagship projects that the President mentioned last week, two — the Last Mile Connectivity and the Isiolo-Moyale road — are funded by the EU. We fully support the ‘Big Four’ agenda, which focuses on food security, manufacturing, universal healthcare and affordable housing.
The EU also fully endorses Kenya’s devolution process at both government levels: National and county. The IDEAS programme, which we fund, will provide grants to 15 counties for local economic development.
In addition, the EU is this month launching the “She Is We” campaign — a call for gender equality around the world which aims to promote women and girls at the forefront of sustainable development. It aims at highlighting the vital role that women and girls can play in society and the importance of their participation and leadership in achieving the Sustainable Development Goals.
The EU is publicising the work of individuals whose efforts are helping, empowering and protecting women and girls in their communities. Their stories will also be shared through social media (#SheIsWe) and the traditional mass media.
In Kenya, short clips about such individuals are being screened as part of the ongoing European Film Festival, bringing European cinema to a broad range of audiences until the last Sunday of May, free of charge.
These areas of activity — the Big Four, gender equality and women’s empowerment, as well as the Film Festival — are just some of the ways in which the EU is working hand-in-hand with the national and county governments and Kenyans.
As Federica Mogherini, the High Representative of the EU for Foreign Affairs and Security Policy, says in her message today, Europe Day is not just a celebration but a commitment by all EU member states to work together with our partners in a co-operative way to strengthen multilateralism, peace, sustainable development, free and fair trade, human rights and democracy.