Know your Rights

What’s the clamor about “social economic rights” are they recognized by our constitution or is a new inventory by Non Governmental Organizations?

Sheila, by definition Social rights are rights made by a group of people to maintain social order within a society. On the other hand, economic rights are rights relating to the production, development, and management of material wealth of a country, household, or business enterprise.
With regard to your question, our Kenyan constitution under Article 43 provides for economic and social rights and hence this clearly shows it’s not an inventory of the Non Governmental Organizations.

Article 43 is to the effect that every person has the right;

• To the highest attainable standard of health, which includes the right to health care services, including productive health care
• To accessible and adequate housing and to reasonable standards of sanitation.
• To be free from hunger and to have adequate food of acceptable quality
• To clean and safe water in adequate quantities
• To social security
• To education.

The Article further provides that a person shall not be denied emergency medical treatment and that, the state shall provide appropriate social security to persons who are unable to support themselves and their dependants.
In relation to the above, Non Governmental Organizations also play a big role by ensuring that the provisions of the constitution are implemented  and hence in this situation, the public at large enjoys the various economic and social rights as stipulated in Article 43 of the constitution.

Recently I have been reading in the papers about human trafficking/ trafficking in persons. In one of the articles I read sometime last year, the writer expressed that even house helps and watchmen are trafficked from the rural areas to urban centers to perform odd jobs without their will & consent. If this is the case, then almost every one in Nairobi is guilty of human trafficking, most of our house helps are referred to work in our households by their relatives from “shags”. I never seem to get it. Kindly advice as to weather this fact is true.

The Trafficking in Persons Protocol has defined Trafficking in persons to mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Though the protocol has not defined exploitation, it has note that it could include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Human trafficking involves moving human beings for profit and there are two elements which must be present: there must be some improper form of recruitment, such as coercion, deception or some abuse of authority; and the activity must have been undertaken for some exploitive purpose, although that purpose need not necessarily have been fulfilled.
Young girls are often lured away from their rural families with schemes that promise lucrative employment in towns and cities, only to be exploited as underpaid domestic servants that work as many as 16 or 18 hours per day. Kenyan law strictly prohibits child labour in the Children’s Act, Chapter 586 of the Laws of Kenya.

In light of your query herein, the employment of house helps in households in the urban centers especially in cases where they are minors, this would be classified as child labour which is punishable under Kenyan law. On the other hand, in the case whereby a person is of majority age, taking them from rural areas to urban centers with promises of employment which are but a smoke screen for ‘enslavement’ could be interpreted as child trafficking as the person was deceived as to the reason for their coming to the city and further in most cases, they are even detained and denied exit from their ‘employer’s abode.
Human trafficking therefore would result if one brings a girl from the rural areas under the pretext of employing them as a house help (assuming they are adults), keeping them working for long hours, denying them freedom of movement especially should they want to opt out of the ‘employment arrangement’ as well as physically abusing them.

Fida Kenya, I salute you for the good work you are doing in educating us through this column. My husband is a cruel man. He beats rapes and does anything and everything cruel that a man can do to a woman.

Thank you for acknowledging our work. We hope to continue touching lives by educating women on their rights through this column .We sympathy with your situation. We advice that you start by seeking counseling with any organization that offers counseling services such as  Amani counseling centre along mbagathi road in Nairobi. While you pursue counseling, we also advice that you also report the rape to the nearest police station.counselling should enable you make decisions as to what steps to take to stop the heinous acts.

My Major Reason for Voting NO against the proposed constitution during the last referendum was because of issues relating to the abortion clause/termination of pregnancy. Truly, what does the constitution say about abortion?

Kamau, Nairobi.

Kamau,

We applaud you for taking part in the voting process at the 2010 referendum on the Constitution. Indeed, taking part in the voting exercise is a right to be enjoyed by all, as it allows one to make a choice freely and without coercion, force or undue influence. It is of utmost importance then that one makes an informed choice which is why in the period leading up to the referendum; great efforts were made by various actors to provide civic education thus educating members of the public as to the actual contents of the (then draft) Constitution and also the voting process.

With respect to the Constitution that was passed and promulgated in August 2010, do note that it is important for you to continue to read and familiarise yourself with the document which is Kenya’s Supreme Law.While your question is in respect to abortion, you will note that for provisions relating to abortion in the Constitution to be understood, one must read the general provision of ‘Right to Life’ set out under Article 26 of the Constitution. What is provided under that article is that every one has the right to life. Life is defined as beginning at conception. The provision then goes on to state under Article 26(4) that abortion is not permitted. However there are a few instances where abortion may be permitted under the law – i.e. when in the opinion of a trained health professional, there is need for emergency treatment or where the life or health of the mother is in danger.

What this means Kamau is that there are very select circumstances when abortion may be permitted and these are clearly outlined in the Constitution. Do note that in these select cases where abortion may be deemed necessary, the health professionals have clear procedural and ethical guidelines set out by the Ministry and in their professional codes of conduct so that the decision is not made arbitrarily and also so that the necessary after care and treatment (including psycho social care) is offered to the mother. We trust that this shed more light on the issue of abortion. We urge you to continue to familiarise yourself with the contents of the Constitution as it is the supreme law that will govern this nation.

I am a born again Christian who hails form Kisii. In my area, witchcraft is the order of the day. In my village people are either giving praise to one, or scheming on how to lynch one. Yes, they are human beings who are up to no good and should be rounded up and locked up in some cells never to be seen again. What’s your take on witchcraft? Is this type of business legal?

Witchcraft is widespread in Kenya and has shot to very high levels as most communities practice it.However, Witchcraft is illegal in Kenya as is supported by Witchcraft Act, Chapter 67 Laws Of Kenya, Article 3 which states that: Any person, professing a knowledge of so-called witchcraft or the use of charms, who advises any person applying to him how to bewitch or injure persons, animals or other property, or who supplies any person with any article purporting to be a means of witchcraft, shall be guilty of an offence and liable to imprisonment for a term not exceeding ten years.

The witchcraft Act has given stipulations on how suspects of witchcraft should be handled and this is as provided for by the Act:Witchcraft Act, Chapter 67 Laws of Kenya, Article 6 Any person who accuses or threatens to accuse any person with being a witch or with practicing witchcraft shall be guilty of an offence and liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding five years:

Provided that this section shall not apply to any person who makes an accusation to a District Commissioner, a police officer, a chief or any other person in authority.Any chief who directly or indirectly permits, promotes, encourages or facilitates the practice of witchcraft or the doing of any act contrary to the provisions of this Act, or who knowing of the practice or pretended practice of witchcraft by any person does not forthwith report it to a District Commissioner, shall be guilty of an offence and liable to a fine not exceeding five hundred shillings or to imprisonment for a term not exceeding three years.

1) When it is reported to a District Commissioner that a person is suspected of practicing witchcraft, the District Commissioner, after due inquiry and having satisfied himself that the person so suspected causes or is likely to cause fear, annoyance or injury in mind, person or property to any other person by means of pretended witchcraft, may for reasons to be recorded order the person so suspected to reside in any locality within his district to be named by the District Commissioner, and alternatively or in addition to report at the office of the District Commissioner every seven days or at longer intervals until further orders.

(2) Any order issued under this section shall with the reasons therefore be forthwith reported by the District Commissioner issuing it to the Provincial Commissioner of his province and shall be accompanied by a record of the inquiry.

(3) The Provincial Commissioner may suspend, reverse or alter an order issued under this section, and shall report the order and the action taken thereon to the Minister who may also suspend, reverse or alter it.

(4) Any person who without lawful excuse refuses or neglects to obey an order issued under this section shall be guilty of an offence and on conviction before a magistrate, not being the District Commissioner who made the order, shall be liable to a fine not exceeding one hundred and fifty shillings or to imprisonment for a term not exceeding two months.

However the gap that is there in the law is the burden of proof beyond reasonable doubt in proving that a suspect is indeed practicing witchcraft which is very high and almost unattainable hence lack of prosecution and/or acquittals and lack of evidence for persons charged with witchcraft.

There is a man who calls himself Muiga. He has been harassing me on phone and calling me names like sweetie, darling etc. I suspect that he is always around my workplace as often he will call me and describe what I am wearing on that day. He says that he wants to marry me and all those funny lavydavys. Somehow, he has access to my email account and he sends forwards of sexual nature. How do I stop this? Is there law that can protect me from this stalker? Daisy, Westlands.

Hi Daisy,

We note that you have not indicated to us how this man obtained your cell phone number and whether he sends you text messages or actually calls you from his phone. Do note that this information is necessary because under the Kenya Communications (Amendment) Act 2008, the use of electronic gadgets such as a mobile phone or computer to send offensive or obscene messages is restricted. If a person is found liable for such an offence he or she can be fined a sum of ksh 300,000/- with an alternative of being jailed for a term of three years.

Do also  note that if you were in a working relationship with this man and if he is in a position of authority over you, or  if he held a Public Office and you were seeking public services from him then your query would qualify as a Sexual Harassment Claim under Section 24 of the Sexual Offences Act .

This section emphasizes that such a person harassing the victim has to have been persistently making sexual advances or requests which he or she knows or has reasonable grounds to know are unwelcome to the said victim. In such a claim you as the victim has to prove that such a request or advances have the effect of interfering with your work or is creating an offensive working environment for the yourself.

In regard to your case this person can be charged with committing an offence under the Kenya Communications (Amendment) Act, if found liable of sending you an offensive or obscene messages via his mobile phone or computer. You should proceed and report this to the police station so that they investigate and prefer charges against this person. Do also note you can go to court under a civil claim and seek an injunction to restrain this person from harassing you or coming to your working place since under the Constitution your right to your privacy is protected and safeguarded therein.

 

I have lived with my husband for more than 20 years and we got married through a church wedding. We have had some misunderstanding for the last 5 years and now my family has written a letter to the “clan” and has slapped a divorce on me. Kindly advice me. Can the clan declare me divorced? What are my legal rights vis-a-vis the family/clans decision? In my community, the clan is very powerful and it is said that they are above the law and whatever they say becomes the law. As a woman I am so oppressed as I know that none of the clan of elders will understand me as most of them are male chauvinists. Lydia, Kisii

Whether the clan has the power to grant divorce on a statutory marriage

The Christian marriage and Divorce Act Cap 151 governs statutory marriages and a marriage conducted in the church is categorized as a statutory marriage.

Further, the Matrimonial Causes Act Cap 152 under section 8 states that divorce under a statutory marriage is granted by a court of law and the Petitioner must prove the following grounds on the part of the Respondent before it’s granted :-adultery, desertion, cruelty, unsound mind and has been under care and treatment for the last five years, that since the celebration of the marriage the husband been guilty of rape, sodomy or bestiality.

In relation to the above, the couples must have been married for at least 3 years or more before seeking for divorce, Once the above grounds have been proved by the petitioner and the court is satisfied with the same, the court will issue a decree nisi and this will last for a period of six months. The rationale for the six months grace period before a decree absolute of divorce is granted is to allow time and space for reconciliation among the couples. After the six months period has expired, the couples will be declared divorced by a court of law.

What are Lydia’s rights vis-a–vis family/clan decisions?

The constitution of Kenya under Article 44(3) is to the effect that a person shall not be compelled to perform, observe or undergo any cultural practice or right and hence Lydia is bound by the law alone and not the clan’s decision.

Whether the clan has the power to make laws.

Article 95 of the Kenyan Constitution states that the National Assembly has the power to enact legislation and it has to be in accordance with Chapter 4 of the Constitution which deals with the Bill of Rights. Further, Article 22(1) provides that everyone is equal before the law. The clan in this situation is not above the law and it has no power to make laws as it claims.

 

The accused person is our breadwinner. What crime has he committed? He defiled his daughter. We are a family of four from Murang’a county.  Kindly help us think through this calamity as we have no other means of survival if the accused person is locked in jail. What should we do? Can we forgive him and life goes on?

The Law governing Sexual Offences in Kenya is the Sexual Offences Act of 2006. The law is comprehensive in terms of describing the offences captured within the ambit of Sexual Offences in Kenya.

The offence of Defilement is captured under Section 8 of the Sexual Offences Act as being any acts causing penetration with a child. The Law has gone further to graduate the levels of punishment for perpetrators of the offence of defilement having due regard to the ages of the children in question. This means that the more severe punishment which is imprisonment for life where a person defiles a child of eleven years or less (as captured under Section 8 (2)). Section 8 (3) provides for a punishment of not less that twenty years in jail in cases where the defiled child is between the ages of twelve and fifteen years. Finally at Section 8 (4), the law provides that where a person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

Having examined the various sections of law and identifying the severe punishments that the law has set forth, one appreciates that the offence of defilement is treated seriously by the law owing to the dire consequences it portends for the minors concerned. While appreciating your concerns about the fact that the perpetrator in you case is the bread winner of the family, caution must be had to the fact that the sexual offences are crimes and being crimes, they are actionable by the state. One cannot therefore purport to make a decision to not seek prosecution of an offence as the state has the final say on whether to proceed with the prosecution or not.

The needs of the family in your case have to be balanced out as against the needs and welfare of the minor. The Children’s Act at Section 4 provides fro the best interests. Although there is no standard definition of “best interests of the child,” the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child. “Best interests” determinations are generally made by considering a number of factors related to the circumstances of the child and the circumstances and capacity of the child’s potential caregiver(s), with the child’s ultimate safety and well-being as the paramount concern.

While appreciating the needs of the family, the very grave matter of the quality of the child’s life in terms of her being compelled to live with her perpetrator and/or keep seeing the perpetrator in her abode, must be taken into consideration. All in all, the state would not let a grave crime like defilement go unpunished on the basis that the perpetrator is the main provider. The deterrent sentences contained in the Sexual Offences Act do not leave room to have such crimes go unpunished.

I am a married woman with 2 children. Last weekend I had gone on a gateaway with my husband to Mombasa. Everything was paid for and we just wanted to have our fun and peace of mind together. Upon arrival to this hotel, the guards made some degrading remarks to the effect that they asked my husband whether I was there for a short time or I was sleeping over. I felt that they had demeaned me and I complained to the management and no action was taken. What are my legal rights and can I sue the security firm? Hadija, Nairobi.

Our constitution provides safeguards for our inherent human rights. A person has a right to be treated with dignity wherever they go. The Kenyan Constitution guarantees your right to Human dignity under Section 28 with the express intention of preserving the dignity of individuals and communities.

The Penal Code, Chapter 63 of the Laws of Kenya at Section 194 provides for what constitutes the offence of defamation or libel. The section provides inter alia  that any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanor termed libel. The implication of this section therefore is that gestures, spoken words or other sounds do not strictly speaking qualify as libel.

With regard to the fact that you did raise the issue with the hotel in question and no action was taken, it is important that you consider doing so formally and possibly in writing. You cannot take action against the hotel directly as chances are that the security firm was contracted by the hotel to provide security within the hotel premises and therefore the existing contractual duty is between the hotel and the security firm. In this regard, you being a client of the hotel should complain to the hotel which has a duty to ensure that your stay within their premises is as comfortable as possible and without incidences of such nature happening with the result of your stay being less than enjoyable.

The hotel is liable for any conduct of its own employees and it has a responsibility of ensuring that its customers who are essentially the visitors in the hotel are treated with the dignity that it deserves. You recourse therefore lies with the hotel once you lodge a formal complaint.

lity of ensuring that its customers who are essentially the visitors in the hotel are treated with the dignity that it deserves. You recourse therefore lies with the hotel once you lodge a formal complaint.

 

I am a college student and in our college we have some security guards who always frisk both male and female students. In the process of doing so, they make some funny remarks like “wewe umebeba sana”. Is this right? You can actually see him ogling and passing out saliva when he is doing this. When we complain to him he says that he is doing his job and he is protecting us from dangerous students who might carry crude and dangerous weapons. We believe him but on the other hand the way he does this job makes me wonder if he is just doing his job or there is more to it. Priscilla, Nairobi.

Dear Priscilla,

Thank you for your query. It appears from   your question that the security guard who frisks you is male and not female. It is therefore wrong and against the law. section 27 of the Criminal Procedure Code, chapter 75 Laws of Kenya provides that” Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency”. The issue of making lewd remarks is also not proper and can be said to be sexual harassment. Section 23 of the Sexual Offences Act makes it an offence for any person, who being in a position of authority, persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome. If found guilty that person is liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both. the provision further states  that  It shall be necessary to prove in a charge of sexual harassment  that such advances or requests have the effect of interfering, as with your case, with  your  educational performance or creating an offensive working or learning environment considering the circumstances of your case ,we advice that  first begin by informing the colleges authorities of the actions of the said security guard.

My name is Kemunto. I work in one of the exclusive massage parlours as a professional masseuse. I have a client who recently made sexual advances at me. He almost raped me were it not for the help that my colleagues gave me. He really degraded me as he tore off my clothes and indecently touched my private parts. I feel he offended me. Legally, what are do you think I should do?

This is a criminal offence, the first thing Kemunto should do is to report the incident to police for them to do investigations and finally charge him in court. Kemunto should produce all the evidence available including the clothes which have tears.

The accused will be charged under sexual offences act. The following charges may be preferred against him:-
1.      Attempted rape that is against section 4 of the Sexual Offences Act,

2.      Sexual harassment-section 23(2) (a) and (b)  of the same Act and

3.      Indecent Act that is section 11A of sexual offences.

For the first count the accused upon conviction can be imprisoned for a term which shall not be less than five years but which may be enhanced to imprisonment for life.
The second count the accused shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both and finally the third count the accused is liable to imprisonment for a term not exceeding five years or a fine not exceeding fifty thousand shillings or to both.
Kemunto can also seek counseling services to help her deal with the situation courageously.

My name is Alex. I met this chick in Tropez. I did a chips funga only to realise the next day that she was underage. I am living in fear as the parents of the chick are threatening to take me to court for defilement. I don’t know how the parents knew my house but they are threatening that I give them some money or else they seek legal action. Advice me please before I make a silly mistake and take my life

Alex, before we look into the issues that arise from your query, allow us, for the benefit of any reader who may need clarity to elaborate on the meaning of ‘chips funga, literally translated as ‘take away chips. It is common parlance for what is otherwise known as a ‘one night stand’, i. e when you engage in sexual relations with a casual acquaintance that you have just met in social settings.  In most cases, this casual sexual relation may not lead to a relationship beyond that sexual encounter.

You indicate that the girl’s parents have threatened o have you prosecuted for defilement. Defilement is an unlawful act under the Laws of Kenya. It is dealt with under Sexual Offences Act, 2006 (rev.2007) which describes it as where one has an act that causes penetration (within the meaning of the Sexual offences Act), with a child. A child is defined as a person who is aged below the age of 18 years.
Under the law, a child has no capacity to consent to a sexual act, thus the fact that she did in fact consent to the act is irrelevant.
In your case, your defence is that you did not know that the lady in question was a child. However, while you may raise this as a defence, it is no bar to the complainant/ through her guardians to pursue prosecution against you. Once the matter is reported to the police, they will conduct investigation in the matter and if satisfied that there is evidence pointing to the possibility of your guilt, then a suit will be filed against you in court. You will by then have been afforded an opportunity to state your side of the story which will be recorded by the police in a statement. Remember, even when the suit is filed in court, the prosecution will have to prove your guilt and this will be against the defence that you give in court and that of your witnesses. The threshold for the court to make a finding of guilt is quite high i.e. beyond reasonable doubt.

If the matter is to proceed to court, then the court, in considering your defence, would have to look into the circumstances of the case so as to be satisfied whether indeed it was difficult in your circumstances to determine that the said lady was in fact a child. There have been cases where court was satisfied that in particular cases; it may be difficult for one to come to a conclusion that the lady in question was in fact a girl given her physique, demeanour, etc.

Regarding the threat by the parents to prosecute if you do not give them money that amounts to extortion, itself an unlawful act. Indeed, there will be no guarantee that if you do pay them, they will not return later to demand for more money from you. In the event that the family do take legal action, it would be advisable for you to retain the services of a lawyer who handles criminal matters in order that you may be properly advised as to how you may defend yourself.

 

 

 

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