Proposed Constitution of Kenya – Why Omission of the Public Defender? Access to Justice for All Kenyans is a Fundamental Human Right. Statement by Kituo Cha Sheria




Access to Justice for All Kenyans is a fundamental human right. For the poor Kenyans only the office of the public defender can help them access justice when they need to.

kituo Cha Sheria


Kituo Cha Sheria, the oldest legal aid and human rights organization established in 1973 is shocked to realize that the Public Defender’s office has been removed from the Proposed Draft Constitution released by the Committee of Experts on 23rd February 2010. This removal comes after a recent article of the costing for provision of legal aid services having been done by the Ministry of Finance.


The Public Defender’s office has been prominently included and well protected in all Draft Constitutions since the review process begun, from CKRC, to Bomas, to Naivasha, to Kilifi, to Wako the 2005 Referendum Constitution, to the Harmonized Draft. And there are good reasons for the inclusion and protection of the Public Defender’s Office in the Constitution especially in the wake of a Strong presidential system as provided for in the Proposed Constitution.


The office of the Public Defender should be established as part of a set with the Office of the Attorney General and the Office of the Director of Public Prosecutions. The Post Election Violence of 2007 – 2008 brought to the fore the need for the country to return to the path of the Rule of Law. The straight and narrow path of the Rule of Law is the only way to guarantee lasting and durable peace. For this reason it is not time to joke with institutions that would help the country return to the path of the rule of law and because of space or finance issues delete some as has happened to the Office of the Public Defender.


We very well know the many issues the country has with accountability. We know many cases of Kenyans who have died in public hospitals and queues waiting to be attended. We know how money meant for the poor is diverted. We know the ‘mta do’ attitude of our public officials “Mtafanya nini?’ So we don’t bring water to your side of town, what shall you do? We don’t stock necessary medicine for common treatable diseases, what shall you do? We do not use Free Primary Funds as we should, ‘mtafanya nini?’ We know families that have accused the police of extra-judicial killings and received no justice. We know how helpless we feel. It is time to end all this and usher in an era of accountability by public servants. An era of public servants taking care of the public, because there would be created the office of the public defender to offer legal aid to Kenyans who cannot afford so they pursue fulfilment of their rights and access justice for wrongs committed to them.

The Proposed Draft Constitution thankfully expands the rights and gives Kenyans a comprehensive Bill of Rights but pray of what benefit will the Constitution be to poor Kenyans who cannot vindicate their rights because they cannot afford to hire lawyers or go to court. The office of the Public Defender is absolutely essential to go hand in hand with an expanded Bill of Rights.


The office of the Public Defender should be established requiring similar qualifications as those of a judge to guarantee independence and impartiality. The Public Defender shall provide legal advice and representation to persons who are unable to afford legal service. This is not a luxury office but one that we need given our history of lack of accountability and lack of adherence to the rule of law. The cost of legal aid is no reason for omission of the office. The cost of poor service by public authorities is much higher and a cost we know all too well. Other countries are bearing the cost; Canada, Ghana and South Africa have Public Defenders and Legal Aid schemes. Many States in America have a public defender’s office. The Government has moved ahead by piloting the National Legal Aid Programme (NALEAP). This initiative should be given impetus through creation of the Public Defender in the Constitution to serve all Kenyans especially the poor and the vulnerable.


The office of the Public Defender was provided for in Article 204 of the Bomas Draft Constitution released on 15th March of 2004 on realization of the importance of such an institution. Unlike other jurisdictions we have never had an Attorney General who works to protect the people. The Attorney General in Kenya works for the Government and defends and protects Government authorities. The people need a public defender to work for the interest of the public, to protect and defend the public and ensure that Kenyans get the services they deserve for the public officials.


Access to justice for all Kenyans is a fundamental human right as provided for in Article 48 of the Proposed Constitution and other International Conventions. This right can only have full meaning if it is coupled with creation of the Office of the Public Defender to give legal aid and representation to majority of poor Kenyans who cannot afford otherwise 46% of Kenyans who live below the poverty line of less than one dollar a day will not be able to access justice as has been happening since independence. Our jails, prisons and remand houses are full of poor Kenyans who cannot afford the cost of defending themselves. These would also be served by the office of the public defender.


We must cut a clean break from the past with the new Constitution; the only way to do these is to increase checks and balances in the Presidential system. Ability of all Kenyans to access justice is important thus need for the Public Defender’s Office. Kituo cha Sheria asks and prays that public spirited Members of Parliament reinstate the Office of the Public Defender in the Proposed Constitution during debate in Parliament. The Public Defender’s Office was Article 195 of the Harmonized Draft Constitution. Please God, One MP speak for the poor Kenyans access to justice.


Priscilla Nyokabi – Executive Director –


A Saba Saba Day Message from Cyprian Nyamwamu of the National Convention Executive Council

July 7, 2009 marks the 19th Saba-Saba. Saba Saba is the day to reflect on the reform Agenda and since 1997; the National Convention Executive Council (NCEC) has acted as the custodian of this important day in the reform agenda calendar. On this Saba Saba day I wish to share a perspective I have taken a year and half to develop. I am of the conviction that Kenya can only move forward if we have a sincere conversation on the future survival of the nation and its prosperity. We should lead ourselves out of the confusion and suffering that PNU and ODM have sunk us into. We can not get out of a perilous situation by being led by the same people who authored our downfall and by using the same methods we used to plunge into the conflict and slow disintegration of the nation that we are in today. Our nation should come to terms that PNU and ODM ran ethnic campaigns in 2007 and therefore committed the original sin. I do not agree that Kenya can rescue and renew itself by using mechanisms like the local tribunal or The Hague (ICC), the National Cohesion Commission, boundaries commission, and most of the placebo mechanisms that are being touted in the republic today.

We made a major mistake last year when we agreed to give the PNU and ODM a 5-Year license to plunder the nation. The National Convention Executive Council (NCEC) recommended to the Civil society Congress and the Annan mediation process that Kenya should have a transitional arrangement for only 2 years after which a fresh election would be conducted for Kenyans to elect a clean, lean, effective, accountable and responsive (CLEAR) government. It is only such a government that can facilitate reforms, reconstruction and reconciliation. The Americans and the Europeans wanted coalition government for 5 years. Some Ambassadors started to act as if they were more interested in Kenya’s success more than Kenyans themselves. They even said that the size of the government was not important. On forming a bloated cabinet that is top-heavy with corrupt politicians, we were not going to have an accountable, effective and responsive government and consequently we logically resigned ourselves to five years of plunder, corruption, poverty, elite enrichment and missed opportunity for reforms, reconstruction and reconciliation. The National Accord government took away the incentives for reforms. That is why the reform agenda is stuck in the mud.

The Grand coalition shall not deliver on the National Accord next year or indeed in the coming years. Why? The simple explanation is that the assumptions of the National Accord are simply flawed. The Assumptions of the National Accord are that; Kenya is a cohesive nation, with functioning institutions, and that there is a leadership called “Principals” that supersedes ethnicity, the patronage system and that overrides their corrupt parties and their kitchen cabinets. It is also assumed that there exists a leadership in civil society and in the religious and business and professional sectors that has the ability to seriously sanction the thugs who “trouble the Principals” in their pursuit of national interest. These assumptions are false. The two principals do not care about the country and its future. The only thing they care about is their wealth and power. The maneuvers we see in Parliament, in their Political Parties, cabinet and in the countryside are all about their wealth and power. The APRM report that preceded the National Accord made it clear what Kenya’s Achilles heels are and specifically found out that Kenya does not have a transformative leadership.
When the Kofi Annan Foundation invited me to represent the National Civil society Congress in Geneva at a forum to assess how far Kenya had come in implementing the National Accord, I kept away. I asked myself this question: What can the parley in Geneva achieve for Kenya without a cohesive democratic movement at home that shall take the responsibility for leading Kenya to peace, justice, cohesion and progress? It was my view then and it still is that we are like a person who is in denial trying to be superstitious about reforms and ending impunity in Kenya. So we do not interrogate the assumptions upon which we want to carry out reforms and transform the nation. So we keep doing a thing or two hoping that the Lord will touch Kibaki and Raila to change their motives of power and wealth and work for the national interest. It is the reason we have failed to get a new constitution for twenty years and it is the attitude that will finally lead us to greater suffering.

I am of the view that we should set in place a national democratic Process with the following components;

* A Democratic Dialogue Facilitator (DDF) should be set up to spearhead the process. A Multi-sectoral Council in the form of a National Convention of Kenyans who have demonstrated their steward credentials would be competent to play this role.

* Center line issues and principles should be articulated and agreed upon. We should outline the expected outcomes of the process upfront so that every one is assured that they will not be destroyed and shattered; issues such as how land should be reformed to address issues of land ownership and historical injustices should be addressed upfront by the DDF. We must assure the current ruling class that they will not face assured destruction when it is found through a TJRC process that they have sponsored the violation of rights and economic crimes in the past. If we do not assure these guys that the worst they shall suffer is to be denied the right to hold public office, we will never make progress because they will never let Kenya reform and be free. We will never be a free nation. The fact that we never dealt with the Kenyatta and Moi years of atrocities and violations has led to the current situation where Moi and the Kenyatta era politicians are the ones in control of the state and the future of Kenya. If we do not negotiate with them, this country will never be transformed and it will never know peace, justice nor prosperity. In Poland, the Solidarity movement had to assure the then communist era President that his future was secure for him to initiate talks with the Solidarity Movement. Right now Kenya’s future is important than get some ten or twenty guys jailed or hanged especially when these guys are in office today. Democratic transitions have never been secured using the Kenyan model that has failed for twenty years. Zimbabwe seems to do better because of gaining credible advice from experts in democratic transition management which seems to lack in Kenya.

* Identifying the Referee of the negotiations is necessary. Without a competent team that acts as referee, parliament, the executive and tribunals shall lead the country into adversarial contests that will never give Kenya a chance to dialogue.

* Audit of skills for the work of the National Democratic process is important so that where there is need for international expertise, this should be planned for.

* The referees and the DDF should begin by outlining the fears of the powerful interests and aspirations and grievances of the excluded citizens and citizens’ groups including ethnic groups.

* The DDF should Schedule the process of moving forward so that the what and the How is planned appropriately. For me the what entails five tasks in this order;
a) Constitution reforms process
b) A fresh elections
d) Institutional reforms
e) Delivery on the development agenda for Kenya’s prosperity under a legitimate government.

* Once the schedule of work is agreed upon, laying the negotiating table that is inclusive becomes the next important step to ensure that the schedule work is delivered upon. The constitution review process should be moved from the strangle-hold of Parliament to a Constituent Assembly or a Multi-sectoral forum. The reason we failed in 2005 is because parliament controlled the content and process of review. What have we improved on in this process? We have not improved the process but instead made it more elitist and exclusive to the guys in power. The ruling class has not intention to have a dialogue with the people of Kenya but to monopolize the state and the political process with a sense of entitlement that reeks of cynicism and contempt for the Kenyan nation. So long as the Committee of Experts is headed to handing over its work to parliament, this process shall expectedly turn awry and therefore fail. Should we wait until we fail to know this? How come we are a country that believes that the same people who drove Kenya into the hole shall pull us out of it?

* The DDF must ensure that there is cessation of war- because wars are persistently raging;
• Between the people and people
• People and the state
• State terrorism is evident all over Kenya
• Insecurity threats posed by Kenya’s neighbours should also be factored into the National Democratic Process.

* Financing the negotiations: Who pays for the National Democratic Project? Who pays for the work of the DDF, the referees, the Laid-table of negotiations; the activities, research and intellectual resources that shall go into the process? If it is the tax payers then the law should empower the DDF and the referees to access these resources in a manner that Parliament and the Executive do not use resources to stifle the reform agenda.

I am of the view that we should put aside the prosecution of post election perpetrators from the national Agenda for now. Kenya missed the opportunity to nail the guys who sponsored the crimes against humanity in the wake of the discredited 2007 presidential election when the ceasefire document junked electoral truth and electoral justice. The day the Kriegler Commission declared that we did not know who won the last election we reinforced the logic of the National Accord which was that we better have a government and restore peace rather than pursue the truth and justice for the victims. We went on to give the guys five years in office even as we did not know who had won the election. Where do we stand now to ask these guys to remove each other from power and dispatch bits of the gang that committed the original sin to a local tribunal and or to The Hague? We must as a nation craft a new Roadmap and end the syndrome of issuing one another with ultimatums that we know no one is going to respect. We must stop step down the demand activity and map out a strategy for enhancing the supply side of reforms, reconstructions and reconciliation.

We should know when we have missed an opportunity and be brutally honest with ourselves as a nation. Moi is still roaming the country unperturbed even with reports full in stores showing his regime perpetrated crimes against humanity for decades. I am clear in my mind that Kenya is a failing state that is captured by cynical interests that will rather all institutions collapse rather than them losing advantage to power and wealth. These are the men and women we want to give the opportunity to spearhead the process of transforming the state. With Wako, Ali, Saitoti, Muthaura and other high ranking officials remaining in office and the culture of impunity remaining entrenched in all facets of public life in Kenya; the Tribunal shenanigans shall at best be used to fertilize politics of succession and nothing more than that.

Kenya should instead proceed as follows;

a. Prepare two constitutional proposals and hold a YES-YES referendum next year. One of the drafts should establish a Parliament system of government and the other a Presidential system of government. As a nation, we should avoid the route of a hybrid system where we have an elected president and a Prime-minister who heads government or coordinates it. This proposal is only to ensure that the country does not fix its fundamental governance problem of lack of accountability, blurred separation of powers and weak checks and balances. The drafts should avoid all the policy issues that can be outlined in ordinary legislation or left to political party manifestos. These include issues such as chapters and provisions on culture, the environment and issues of reproductive health. Parliament should therefore be guided by the political parties to amend the Constitution of Kenya Review Act to provide for a YES-YES referendum to provide an opportunity for the nation to make a clear break with the current constitutional dispensation.

b. The Democratic Dialogue Facilitator (DDF) should ensure that a fresh election is held next year on the basis of the new constitution. All those who have been named in various reports since independence including the Mwangale, Akiwumi, Goldenberg, Anglo-leasing, Nyayo torture Chambers reports, the Ndung’u Land report, the PAC and PIC reports, the Artur brothers report, the Kriegler and the Waki reports (including those in the envelope) should not run be permitted to run in that election. At least Kenyans should be urged to reject these saboteurs who have hurt our nation for so long with impunity.

c. Upon the passage of a new constitution, Kenya should operationalize its Truth, justice and Reconciliation Commission next year so that we can bring to the surface the Truth about our past and document this truth so that we do not repeat this tragic and heinous legacy. Justice must be given to the victims who suffered violations and historical injustices must be addressed so that we come together as one nation as we move forward to the future. This is the only viable strategy to national cohesion and healing that Kenya needs more than anything else.

d. The new government should implement policies that address Kenya’s governance priorities outlined in the National Accord. Particularly, the new government should ensure that a progressive National Budget is prepared that ensures a 60% allocation to the development budget and 40% to the recurrent budget. These resources should be invested in the citizens to ensure that each of the regional governments delivers services to the people to address the regional inequalities, food poverty and lack of infrastructure and power that is required to revolutionize economic performance.

These steps are important to save the Kenyan nation from disintegrating. These assignments can be accomplished if a National Convention is convened by men and women of good will who enjoy wide respect among the people of Kenya. These men and women include the following Pheroze Nowrojee, Njeri Kabeberi, Mwalimu Mati, Muthoni Wanyeki, Kepta Ombati, Willy Mutunga, Betty Murungi, John Githongo, PLO Lumumba, Gladwell Otieno, Ann Njogu, Ndung’u Wainaina, Bethuel Kiplagat, Rev. Bishop Korir, Abdullahi Abdi, Yash Ghai, Mwambi Mwasaru, Hussein Khalid, Tirop Kitur, Paul Muite, Onyango Oloo, Kithure Kindiki, Khalif Khelefa, Gacheke Gachihi, Caro Ruto, Joshua Nyamori, Davinder Lamba, Duncan Okello, Maina Kiai, Rev. Timothy Njoya, Collins Odote, Okoiti Omtatah, Matunda Nyanchama, Hassan Omar, Vimal Shah among others.

The National Convention Assembly should see to it that all democratic forces participate in the process of delivering the National Democratic Agenda of ensuring democratic governance presided over by democratic leaders, establishing and ensuring democratic institutions and entrenching a democratic culture in Kenya. September this year is an appropriate time for convening the National Convention Assembly where in the words of our fallen comrade and Panafricanist Tajudeen Abdul-Raheem we may stop agonizing and start organizing seriously.
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CN Orina

Uhuru, Kajwang’ and Wako Should Be Probed


Honesty is such a vital quality that it can hardly be surpassed by anything else. As a nation, we will not achieve much if we fail to embrace or inculcate it in ourselves.

British essayist Thomas Carlyle (1795-1881) once said of honesty: “Make yourself an honest man and then you may be sure there is one rascal less in the world.”

In this spirit of honesty, three musketeers must rise up and honestly explain away allegations that are being made or have been made against them.

The first one is attorney-general Amos Wako. This man, in his characteristic fashion of denial, claims not to have been involved or informed of any immunity from pursuit given to Kamlesh Pattni and his accomplices or in the subsequent sale of the Grand Regency Hotel.

Quit the office

His claims notwithstanding, there is a very disturbing contention which has been doing rounds in the press and which Wako must clarify as he prepares to quit office.

This is in relation to section 56B of the Anti-Corruption and Economic Crimes Act. The “handover” of the Grand Regency and its subsequent hurried sale trace their origins to the settlement agreement registered in court on April 9, 2008.

This settlement was pursuant to section 56B of the Act. However, it is emerging that this specific section may after all be illegal.

The Hansard of September 13, 2007, says that during a debate on amendments to the Act, the question on whether to approve Section 56B was put to the vote and Parliament voted to have the section deleted.

Also, the President declined to assent to the Act citing among other things its proposed blanket amnesty and agreed with Parliament that Section 56B remains deleted.

Secret insertion

According to the Hansard the President‘s recommendations were debated in Parliament on October 4, 2007, and section 56A reinstated while section 56B remained deleted.

It is also on record that Justice Aaron Ringera called a news conference that day and complained about the deletion of Section 56B and other proposed amendments.

How strange then that when AG Wako published the Act and commenced it on October 15, 2007, section 56B was part of our laws?

The net effect is that any perceived amnesty or transaction pursuant to section 56B of the Act is null and void ab initio. For the secret insertion of otherwise deleted amendments into a law for the President’s assent is fraudulent, unconstitutional and criminal in nature.

What Kenyans must demand to be told is, if section 56B was deleted by Parliament on September 13, 2007, who “sneaked” it back into the Act and why?

Any attempt to wish it away thus “I was not informed or consulted” will not work. The buck must stop with Mr Wako.The other two musketeers have everything to do with the new buzz word for ministers under siege — “discretion.”

Former Finance minister Amos Kimunya must be wishing it had come up before he stepped aside since it being a cushion, he most certainly would have taken cover behind it too.

But for the moment it is providing cover for Deputy Prime Minister Uhuru Kenyatta, who has been sucked into controversy, and Immigration and Registration of Persons minister Otieno Kajwang’ who is not yet out of the woods.

It is alleged that while serving as Local Government minister, Mr Kenyatta substituted a list of political parties’ civic nominees forwarded to him by the ECK with one of his own, which accusations he has denied.

Mr Kajwang’ on the other hand, has been accused of impropriety in that he issued work permits to foreigners whose professions are available locally, totally against the advice of his permanent secretary and director of Immigration Services.

Likewise he has denied any wrongdoing. Mr Kenyatta has, however, not  used the word “discretion” but Kajwang’ was quick to invoke it.

The fundamental objective of allowing ministers and senior public servants discretionary powers is purely to support wider public interest.For Parliament which confers that discretion, can never be taken to have intended to give a power to act in bad faith or to abuse power. If an act is to be done according to the discretion of a minister, it should follow the rules of reason and justice, not private opinion.

For Mr Kajwang’ to have met the applicants in person reeks with a decision informed by private opinion.In his own words, he is “like an appellate judge with discretion to supreme ministerial decisions”. The discretion of a judge has been discredited as the law of tyrants; especially appellate judges whose decisions settle a matter for good.

Public bodies

But some discretion is necessary, because law cannot anticipate every eventuality or how to decide which law may apply to a given situation. However, all public bodies are under an obligation to show fairness and reasonableness.

“Unreasonableness” may mean that even though the authority has acted according to the law in the sense that it has not acted on irrelevant grounds or exercised power for an improper purpose, yet it has given more weight to some factors than they deserved as compared with other factors.

Mr Kajwang’ can, therefore, not be heard to say that he has a soft spot for “people who pray” otherwise woes betide this nation when he develops a soft spot for terrorists.

Mr Kenyatta, Mr Kajwang’ and Mr Wako must be investigated.