MERCY

JEBET TARUS
THE FEARLESS LIONESS OF
UASIN GISHU COUNTY
www.theplatformmagazine.co.ke SEPTEMBER 2023 1
 Publisher & Editor in Chief
Gitobu Imanyara
Editor@Theplatform.co.ke

Executive Assistant to Publisher

& Editor in Chief
Marangu Imanyara

Managing Editor
Evans Ogada
Gitobu Imanyara
Board
Founder, of Associate
Publisher Editors
& Editor in Chief
Moses Chelanga, Steve Ogolla,
editor@theplatform.co.ke
Ian Mwiti & Eunice Lumallas
Executive Assistant to publisher
Editorial Researcher
& Editor in Chief
Nyaga Dominic
Marangu Imanyara

Guest Columnists
Managing Editor
Gabriel Cajetan, Muchesia Bryan Anyika, Pascillah
Evans Ogada
Chitai, Wycliffe W. Njororai Simiyu, Collins Tioko
Emmanuel Ekiru, Tieni, Leency Awino Ogutu,
Board of Associate Editors
Gertrude Wachira, Emma Ella Katiba, Nicole
Moses Chelanga, Steve Ogolla
Dempster, Mohammed Abdullahi Hassan, Deckstar
Ian Mwiti & Eunice Llumalas
Adaki, Victoria Titus, Michael Omondi Odhiambo,
Francis Basis Maugo, Rose Lukalo-Owino, Joshua
Editorial Researcher
The Platform; your favourite Malidzo Nyawa, Bonface
Nyaga Dominic
Nyamweya
publication for Law, Justice & Advertising & Sales
Society was awarded Gold at Guest Columnists
Faith Kirimi
Evans O. Ogada, Mutuma Imathiu, Nyaga Dominic
the 2022 Digitally Fit Awards, in Kelvin Nyamache, Teddy
Design & Tabu
LayoutOdira, Dr. Wyne
recognition of its online presence Mutuma, Odhiambo George Okello Kevins Owuor,
Jerameel
and impact online through our Dempster Nicole, Dexter Adaki, Mary Mukoma,
Colins Mugo, Job Owiro, Ronald Odhiambo Bwana,
website and social media. Musonye
Office
Collins
Administration
Tieni, Nancy Lillian
Gacheru,
Marjorie Muthoni, Margaret Ngesa, Oluoch,
Mathew Schmalz
Benjamin Savani and Faith Kirimi

Content Layout
Georgethis
To support Okello & Richardeffort
pro-bono Musembi
published
in the public interest use:
Digital Placement & Maintenance
Calvin Opiyo

Office Administrator
Faith Kirimi

Platform Publishing Company Kenya Limited

Fatima Court, 2nd Floor Suite 14 B, Junction at Marcus
Garvey/ Argwings Kodhek Roads, Opp. Chaka Place
Next to Yaya Centre, Kilimani
P.O. Box 53234-00200, Nairobi - Kenya.
Email info@theplatform.co.ke
Tel +254 (0) 20 272 5715

2 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 4 A warning emblematically
ominous of what has
been witnessed before
sounding caution to the
Kenyan President

6 13 Years of Constitution:
Why we need to resist
the persistent evil of
colonial relics in the
police service

12 11th C.B Madan Prize call

for nominations (2023)

13 Mercy Jebet Tarus:

The fearless lioness of 55 Misplaced priorities?
Uasin Gishu County Why Kenya's health crisis
continues to hurt
18 Picketing ornaments
69 The need for public
19 Justice Kiage and the defenders in Kenya’s
total Constitution. criminal justice system
Judicial protection of
religious minorities in 79 An open letter to the
Kenyan schools President of the Republic
of Kenyan H.E Dr.
32 100 Years of Rugby in William Samoei Ruto
Kenya: 1910-2010
84 Exploring the goal of
34 Towards a more vibrant imprisonment and the
and independent media debateover certificates
industry in Kenya of good conduct
100 Curtailing sexual
misinformation
through mandatory
comprehensive sex
education
111 The concept of odious
debts and its implications
on the African context
117 Unmasking the
Shakahola Phenomenon:
Religion as the sedative
of the mind

51 Worldcoin or conned? 98 Wangari wa Equity’s: 124 Faith Kipyegon lifts gold:

An insight into the remarkable journey from From walking to school
illegitimacy of Worldcoin the courtroom to the in rural Kenya to setting
in Kenya boardroom world athletics alight

www.theplatformmagazine.co.ke SEPTEMBER 2023 3

 A warning
emblematically
ominous of what
has been witnessed
before sounding
caution to the
Kenyan President

4 SEPTEMBER 2023 www.theplatformmagazine.co.ke

T
he President of the
Republic of Kenya,
Dr. William Samoei
Ruto is no stranger
to Kenya and has certainly
lived here long enough to
remember our past, dark
history. During a roadside
public address in Kakamega
County on Sunday 27th August
2023, the President issued a
warning at those he termed
as 'sugar cartels' blaming
them for the collapse of the
country's sugar industry. He is
captured on record as saying
the following:
"Mimi nimewaambia hao watu
wote hakuna mtu akona kitu
hapo. Hawa wakora wote
watoke. Hio kampuni ni ya
wananchi na tutaipangia upya.
Hakuna kesi tutaentertain
hapo. Kesi watoe na wao
wenyewe watoke, Mambo ni
matatu…Wakitaka kuniletea
kisirani either wahame Kenya
ama nitawaweka jela ama
wasafiri waende mbinguni."
This statement translates to,
“I have told these people that
they have nothing in there.
All these thugs must leave.
That company belongs to the
people and we will administrate
over it afresh. We will not
entertain any court cases
(over the matter). They have
to withdraw the case and they
must (sic) leave. There are only
three options... If they want
to mess with me, either they
leave Kenya or I will lock them
up in jail or they will (sic) be
transported to heaven”.
www.theplatformmagazine.co.ke
This statement has been
roundly condemned for its
callousness and insensitivity,
especially in light of Kenya’s
tragic past. We wish to
remind the President of two
examples. In the month of
August in the year 1990,
44-year-old Anglican Bishop
Alexander Muge of Eldoret
Diocese was killed in an
automobile accident in the
then Busia district after
having been threatened
by Cabinet Minister (Labor
Minister) Peter Okondo,
who had warned Muge and
another bishop not to enter
Busia. He had said that if they
tried to enter Busia, "they will
see fire and may not leave
alive." The story of Father
John Anthony Kaiser also
serves as a reminder. He had
been threatened by prominent
personalities in the KANU
regime and was found killed,
his lifeless body lying on the
roadside in Naivasha.
Mr. President, those are only
two incidents from the past.
Having assumed office
as President slightly over
a year ago, you assumed
heavy responsibilities and
a solemn commitment to
lead the nation. Your office,
as per the Constitution
fuses two major roles- that
of Head of State and Head
of Government. You are
expected to display utmost
civility when executing these
twin roles. The role of Head
of State particularly demands
that you adopt a temperate
demeanour, watching your
words and temper in public.
The President is expected
to exercise utmost restraint
especially when dealing with
matters that are already in
Court.
As a requirement of
separation of powers, it is
profitable to say the very
least as a marker of inter-
governmental respect. The
statement by the President,
targeted at businessman
Jaswant Singh Rai, coming
only after his kidnap in
broad daylight sends an
ominous message not
only to Kenyans in general
but also to investors and
potential investors. The Rule
of Law requires that the
President must allow ordinary
institutions of state to carry
out investigations and deal
with any wrongdoing in
accordance with the law. The
President must not appear
to be employing menace and
the instruments of state to
threaten, coerce or intimidate
anyone, especially in light of
Kenya’s dark history.
Mr. President, mambo ni
haya: Respect for the rule of
law and constitutionalism
is inescapable. To have it
any other way amounts
to fomenting trouble. The
President must censure
his public statements
moving forward as they
might be a harbinger of dire
consequences.
SEPTEMBER 2023 5
Nairobi residents marched to protest police brutality and harassment.

13 Years of Constitution
Why we need to resist the persistent evil
of colonial relics in the police service
By Tioko Emmanuel Ekiru
Introduction
In a constitutional democracy
like Kenya, the police are
expected to discharge
their duties effectively and
professionally owing to the
core tenets of Article 244
of the Constitution, which
requires the police service to
strive for the highest standard
of professionalism and
discipline while discharging its
mandate. This constitutional
provision was tailored and
designed with the clear
consciousness of introducing
a “human rights sensitive
approach” to police service.
However, despite the series
of radical reforms and revision
of its laws in compliance with
the emancipatory dictates
of the 2010 Constitution,
the way the police service
has increasingly continued
to handle weighty national
matters embodies nothing
short of a police service that
is still stuck and not ready to
be liberated from the colonial
relics and old order vestiges.
Traditionally, the core
functions of the police service
entail the maintenance of law
and order and preservation
of peace. Practically, it
must be recalled that the

6 SEPTEMBER 2023 www.theplatformmagazine.co.ke

tremendous impact of the
British colonisation on Kenya’s
contemporary institutions,
such as the police service has
continuously persisted for a
long time. 13 years after the
promulgation of the 2010
Constitution, the police service
continues to lavishly apply
the colonial tactics, practices,
policies and militaristic
traditions while dealing
with civilians, mainly, during
elections or protests. In other
words, police have become
the primary beneficiaries
and the grand architects of
impunity, brutality, chaos,
violence, rebellion, oppression,
repression, dominations and
violators of the rule of law,
constitutionalism and human
rights.
With AK-47s, water cannons,
tear gas canisters, and G-3
rifles, everyone including
members of the press and
media, the general public,
civil society, human rights
defenders, politicians, the
school-going children,
pregnant mothers, elderly
persons, blind, the street
urchin, the deaf and the sick
have suffered in the hands of
police. Many of these persons
in several instances have been
arrested, detained, maimed,
held incommunicado and even
killed by the police without
any justification.
The painful experience of
human rights violations by
the police from a historical
context
The violence, brutality
and impunity exhibited
www.theplatformmagazine.co.ke
Police firing tear gas at protestors.
by Kenya’s police service
with respect to the above-
mentioned individuals has its
historical roots in a number of
parameters, particularly, the
police's long working ties with
Kenya’s colonial superiors-
the British.
After Kenya gained
independence from the
chains of British rule, Kenya’s
successive regimes promised
reforms, including the reforms
of the police sector. While
indeed the reforms did occur,
it is undeniable that vestiges
of the colonial mindset are
still active and alive in the
present-day police service.
The police just as it was in the
colonial period continue to
perpetuate the colonial modus
operandi of protecting the
interest of the ruling elite.
The abuse and misuse of the
policing power in advancing
the interest of the ruling
elite was first witnessed
during the tenure of Kenya’s
founding President, Jomo
Kenyatta. Kenyatta in
many instances relied on
“the colonial playbook” of
employing coercive tactics
through police and a small
cycle of Kikuyu dubbed as the
“Kiambu Mafia” to suppress,
detain, arrest and silence
every dissenting voice against
his regimes. An example of
this coercive power tactic
was noted in 1969 at Kisumu
when police fired into a crowd
protesting at the President’s
visit. This resulted in at least
the killing of 11 people with
hundreds being injured.
While walking in the
footprint of his predecessor
Jomo Kenyatta, Daniel Arap
Moi, ascended into power
and started using police
as an instrument of state
repression and assassinations.
He used police to preside
over unlawful detentions,
torture and killings of
innocent civilians. From
1992 to 1997 elections, Moi
SEPTEMBER 2023 7

politicised the police and
used them to perpetuate
violence and brutality against
the protesters, civil society
organizations and members of
the opposition grouping.
In 2022 Mwai Kibaki newly
formed coalition came into
power bringing 40 years
of KANU rule to an end.
President Kibaki succeeded
in fulfilling crucial promises
during his tenure, including,
rallying members of his Party
of National Unity (PNU) to
support the constitutional
draft. However, he was
allegedly perceived as one of
the masterminds behind the
2007/8 post-election violence
8 SEPTEMBER 2023
that rocked the country
resulting in the killing of more
than 1100 people and also
displacement of 650, 000
people.
Given the fact that the
election was contested
by both sides of political
divides, police were largely
implicated in aiding the
state to carry out large-
scale human rights atrocities
using heavy-handed policing
methods that included the
use of excessive force and live
bullets. This state of affairs is
evidenced in the findings of
the Commission of Inquiry on
the Post-Election Violence
(i.e the Waki Commission)
A police officer holds a pistol
during clashes with protesters
near a burning tire barricade in
Kariobangi slum, Nairobi
and the Truth, Justice, and
Reconciliation Commission
(TJRC).
Although the 2013 election
that ushered in UhuRuto to
power was vetted by local
and international observers
as calm and peaceful, the
subsequent election of 2017
was characterized by police
brutality and violence. Areas
perceived as the opposition
strongholds such as Kisumu,
Siaya, Homa Bay and Kisii
as well as Mathare and
Kibera informal settlement
in Nairobi was marked by the
excessive use of force and
police brutality. In Kisumu,
several people were beaten
www.theplatformmagazine.co.ke
to death including a six-
month-old baby, Pendo
Samantha, a nine-year-old
girl, Stephanie Moraa and a
young boy, Mutinda. There
were further allegations of
police breaking into houses at
night and beating up residents
of areas that were seen as
pro-opposition. Women were
allegedly forcefully raped by
police in places like Nyalenda
area of Kisumu city.
In the 2022 election, police
brutality was witnessed
several months later in
2023 when the Raila
Odinga Azimio la Umoja-
led coalition, initiated an
itinerary of anti-government
protests, against President
Ruto’s administration on
www.theplatformmagazine.co.ke
account of several issues,
namely, the rising cost of
living, the reconstitution of
Independent, Electoral and
Boundaries Commission
(IEBC), opening of the
electoral servers and auditing
of 2022 presidential elections
as well as the amendment of
2023 Finance Act.
Many politicians’ pro-
oppositions, members of
the press, activists and
civil society members were
arrested, and detained
while others were held
incommunicado. The report of
arbitrary and unlawful killings
of several members of the
general public by government
agencies is well documented.
One of the catastrophic
incidents that will forever be
etched in the memory of many
people was the shooting of
Fidel Castro Ochieng, a school
student at Olembo Boys
Secondary School, whom
the police raided and rained
with 9 bullets in his chest and
left arm, during the Azimio
coalition protests. Fidel’s
shooting was catastrophic
because the Doctors'
examination report revealed,
“that some of the bullets had
penetrated deep to his vital
organs including ribcage and
lungs, leaving him, rather in a
critical and deadly condition”.
Fidel’s incident evokes a fresh
memory of the 2015 incident,
where anti-riot police lobbed
tear gas canisters to Lang’ata
primary school pupils and
Protesters rally against police
brutality in Mathare, Nairobi
[Khalil Senosi/AP Photo]
SEPTEMBER 2023 9
Protesters demonstrate against police brutality in Nairobi
activists for protesting against
the grabbing of their school
playground by a powerful
politician.
At the time of writing this,
Azimio la Umoja Coalition
had filed a formal letter
(communication) pursuant
to Article 15 of the Rome
Statute to the International
Criminal Court (ICC), asking
the ICC to investigate the
killing and maiming of its
supporters by police.
Reforms effort
In an attempt to reverse
the historical trends of
“colonial mentality” in the
police sector, which involved
the excessive use of force,
abuse of due process,
deep-rooted impunity,
10 SEPTEMBER 2023
corruption, brutality and
disregard for human rights,
the government of Kenya,
over the last couple of years,
has undertaken far-reaching
and consequential reforms
effort both in the structure
and command outlook
of police. Some of these
reforms were spearheaded by
various Taskforces, namely,
John Mutoyi, (2002-2003),
Philip Ransley (2009) and
Titus Naikuni (2010-2015)
and the recent one being,
Rtd Chief Justice David
K.Maraga, Taskforce which
was appointed vide Gazette
Notice No. 15792 of 2022 to
inter alia examine the legal,
policy, institutional, and
administrative framework in
the National Police Service
(NPS) and the Kenya Prisons
Service (KPS) and further
make recommendations for
reforms to transform the
security sector to one that is
robust, dedicated, motivated
and accountable.
Although there have been
notable radical reforms in the
police sector, the worrying
trend is that the police are still
internalized and controlled by
colonial thinking in all their
dealings.
Accountability mechanism
Following the reform effort
that culminated as a result of
the 2007/08 post-election
violence, there are two major
bodies that were established
subsequently to check
on police accountability
and conduct: the Internal
Affairs Unit (IAU) and
www.theplatformmagazine.co.ke
the Independent Policing
Oversight Authority (IPOA).
These bodies were also meant
to uphold police integrity and
restore public confidence in
the police sector. However, as
it appears today, these bodies
are so dysfunctional and lack
moral accountability and
transparency in their affairs.
The National Police Service
Act No. 11 A 2011, section
87 set up the Internal Affairs
Unit, and was mandated
to receive and investigate
complaints against police
officers. Sadly, there have
been allegations that the unit
has been an avenue for the
rogue officers to bribe their
way out of trouble attributed
to them. Further, very few
Kenyans seem to know the
existence of IAU, given its
opaque style of handling
police integrity issues.
The Independent Policing
Oversight Authority was
established under the IPOA
Act (Act No.35 of 2011).
It largely borrowed its
architecture from the United
Kingdom’s Independent
Office for Police Conduct
(IOPC), formerly known
as the Independent Police
Complaints Commission
(IPCC). The objectives of
IPOA are outlined in section
5 of the Act, which include
holding police accountable to
the public in the performance
of their functions and also to
give effect to the provisions
of Article 244 of the
Constitution that outline the
duties of the police service. In
addition, the IPOA is required
www.theplatformmagazine.co.ke
to provide civilian oversight
over the work of the police,
including investigating deaths
and serious injuries caused by
the police action.
Regrettably, as it stands today,
the work of IPOA inspires no
confidence. This is because
despite an overwhelming
number of police misconducts
being reported to its office,
the body has only secured
fewer convictions leaving
most culprits to go scot-free.
Another challenge is that the
body works under extremely
hostile environment
controlled by the political
class who in most scenarios
manipulate the process
or cover up the crimes Further, the IPOA should
committed by their close allies institute urgent investigations
or members of their ethnic and recommend the
groups. prosecution of all police
officers who were implicated
Conclusion in the past and present
conduct of violence and
For the police, to be liberated brutality. This will tame the
from the in-built colonial culture of impunity.
mentality, there is a need
to re-train them to deviate In addition, all pro-
from being a police force to a constitution forces, namely,
citizen-centred police service courts, members of the
ingrained in the democratic public, civil society, human
culture of human rights, rule rights activists, faith-based
of law and constitutionalism. organizations, media,
The training should emphasise members of opposition
how the police can interact grouping, students and
with communities and all academic intellectuals, must
members of the public remain the true guardians
freely without any fear or of the democratic ideals
intimidation. bestowed by the Constitution,
no matter the threats and
Accountability bodies such as intimidation they face daily in
IAU and IPOA must remain their life pursuits.
faithful to the Constitution
by holding both the mighty
Tioko Emmanuel Ekiru is a human
and the small accountable in rights and governance lawyer.
all their conduct and actions.
SEPTEMBER 2023 11
 11 C.B Madan Prize
th
call for nominations
(2023)
Nominations and applications to the
Eleventh C.B Madan Prize for outstanding
contribution to constitutionalism and
the rule of law in Kenya are now being
accepted.
The Prize is awarded annually by The
Platform for Law Justice and Society and is
presented to an individual or group who
has made a significant effort to advance the
cause of constitutionalism and the rule of
law in Kenya or elsewhere.
It commemorates the distinguished career
of Hon. Mr. Chief Justice C.B. Madan (Q.C)
for his brilliance and independence, sense
12 SEPTEMBER 2023
of justice, deep understanding of the law,
and – above all - his respect for the rule of
law.
This year’s C.B. Madan Prize will be
awarded on a date and at a venue to be
announced together with the recipient of
the award for the year 2023.
To nominate an individual or group for the
C.B. Madan Prize and for the C.B Madan
Student Awards, please send an email
detailing the reasons for nominations to
gi@gitobuimanyara.com by 27th October
2023.
www.theplatformmagazine.co.ke
 MERCY JEBET
TARUS The fearless lioness of
Uasin Gishu County
“If you have no confidence in yourself, you are twice defeated in the race of life.
With confidence, you have won even before you have started.”
Marcus Garvey

www.theplatformmagazine.co.ke SEPTEMBER 2023 13

 By Gabriel Cajetan

P
erhaps these are the
exact words that
echoed in Mercy Jebet
Tarus’ mind on the
morning of 7th August 2023,
stirring her courage to speak
to the powers that be. She
asked tough questions about
the controversial overseas
Education airlift programme
by the county government of
Uasin Gishu, making leaders
uncomfortable in their seats.

In a packed hall at Uasin Gishu

county offices, sat frustrated
parents who had accompanied
their children to a meeting
convened by the county's top
leadership in a bid to resolve
the stalemate that has left
students hopeless. But with
nothing more to lose, yet in
this state of hopelessness, Ms.
Tarus mustered the courage
to speak her, and many other
victims' heart out with her
words like a razor, cutting
into size influential leaders many Kenyans saw a brave innocence while fully aware
adversely mentioned in the and brilliant leader, not of the that the scholarship gone
scandal. future. bad, was nothing more than a
fraudulent scheme.
A video clip of Ms. Tarus, Her passionate speech,
fearlessly yet calmly lecturing delivered with a blend of “Some people called my mum
the leaders, would then frustration and determination, and said you raised your
go viral on different social struck a chord with those daughter well. A number of
media platforms attracting in attendance and garnered people feel proud of me,"
praise and condemnation in widespread attention on Ms. Tarus said. During an
equal measure from Kenyans social media. "Do you know interview with The Platform
online. Netizens, as they are antidepressants?" This is still a at her home in Uasin Gishu
fondly and modernly referred top trending question among County, Ms. Tarus, a second
to, lauded her courage for Kenyans, courtesy of Ms. born in a family of three, said
mentioning powerful leaders Tarus's speech. she had not even planned to
linked to the scandal without She fearlessly pointed out the speak but the casual manner
stuttering or blinking. So leaders' repeated deceitful with which the leaders
bold and composed was her behaviour, occasionally were handling the situation
communication, that in her, smiling and assuming an air of prompted her to do so.

14 SEPTEMBER 2023 www.theplatformmagazine.co.ke

“When I left home, I didn’t
have the urge to speak. No!
I wasn't going to. I was just
going to listen to what they
were going to tell us about
our money and then wait for
them to pay us back. But then
when you call us for a meeting
on a Monday at 9 am and you
show up at around 12:30 pm
it becomes disrespectful and
that angered me," she told this
publication.
The Bachelor of Education
Arts graduate from Kabarak
University had planned to
pursue a course in Social
Services Work at Northern
Lights University in Canada
after securing an offer letter.
Her family has so far spent
www.theplatformmagazine.co.ke
over Sh. 980, 000 to pay
fees, visa processing charges,
accommodation and other
expenses. She said that her
plan was to start by pursuing
a diploma course for a year
as she works on the side.
This would enable her to pay
loans that her parents had
borrowed to fulfill her career
dream. “I was to do a full-time
job the following year and
then embark on a master's
degree programme. My dad
is about to retire and since
he has not settled the initial
loan he borrowed for my
education and travel's sake,
he is unable to successfully
apply for another one," Ms.
Tarus narrated.
The young lady said she had
assured her parents that once
she found a job, she would
help them settle the loans.
"I told them that I was going
to work hard because I am
good with my hands and I can
work on my feet. It's sad that
I am still here and they are
paying for loans that didn’t
materialise. This has strained
my relationship with my
parents,” she lamented.
She is among the more
than 300 students who are
currently stuck in the country
after paying the requisite fee
for the botched Uasin Gishu
County Overseas Education
Program. These educational
opportunities were set in
motion during the term of
SEPTEMBER 2023 15

the former Governor Jackson
Mandago, who is the county's
current senator.
According to Ms. Tarus all was
well early into the programme,
but trouble began when
the Uasin Gishu county top
leadership failed to give the
parents and students enlisted
all the relevant information.
“For instance, you would ask
a question and the deputy
governor John Barorot would
take you around circles
without telling you the truth.
So, that is where the problem
began,” she recounted the
events of the material day.
16 SEPTEMBER 2023
“Since we had been promised
to leave by December 2022,
I paid the first amount Sh.
600,000 in September as
the fees then in December I
went for the medical tests on
December 7. Later, they told
us about the war in Ukraine
explaining that the embassy
couldn’t process our visas at
the same time that they were
trying to help the people of
Ukraine. So, we were told to
wait until February 2023,” Ms.
Tarus narrated.
She disclosed that she went
for her biometrics on January
26, 2023, after which the
regional government informed
her and the rest that it had
made their applications and
they would be ready in a short
while and so they waited.
“I was asked to pay money for
accommodation on February
14, 2023, and now when it
got to March, we were invited
for a meeting where we were
told to be patient that they
were still processing some
few things,” she said. For a
long time, Ms. Tarus who is
also a poet said, the leaders
had assured them all was well
and that is why they remained
silent about the flopped
scholarship programme.
“We didn’t want to speak up
because they always told us
to remain silent so that the
issue doesn’t blow up, but
now when we trust you with
our money, our time and you
decide that you are not going
to show up on time and give
us that little courtesy then we
must tell you the truth about
everything,” she explained. As
things escalate, the current
Governor Jonathan Bii alias
Koti Moja and his deputy John
Barorot are blaming Mandago.
On the other hand, Senator
Mandago faults the two and
no one is evidently taking
responsibility for the mess.
Mr. Bii has since suspended
the controversial Overseas
Education Programme to
Finland which was being
coordinated by the County.
Some of the students had
been threatened with
deportation.
“Parents have sold parcels of
land; students are undergoing
www.theplatformmagazine.co.ke
depression and anxiety.
Parents are falling sick, having
blood pressure, diabetes
and no one wants to take
responsibility for the amount
of money that we paid,” she
observed. Ms. Tarus who
recently turned down a job
offer from Narok Senator
Ledama Olekina said she was
not satisfied with the whole
process and mechanisms
put in place by the county
government to refund their
money.
"I do not have confidence in
them, but I have confidence in
the President. My request goes
straight to President William
Ruto. I'm urging him to compel
them to give our money back.
We are the people who put
you in office. Compel them
to return our hard-earned
money,” she appealed to the
Head of State. She insisted
that she was not being
disrespectful to the county
leaders as some have judged
her, reiterating that she was
just demanding accountability
from public officials.
As some Kenyans continue to
celebrate her, describing her
as brave, things are not okay
for Ms. Tarus. She revealed
that since she made that
memorable address, some
unknown people have been
tracking her movements and
that her life is in danger.
“Recently, when I was in town
I realised some people were
following me. I had to go to a
certain hotel, but the person
still followed me upstairs. "He
then made some calls while
www.theplatformmagazine.co.ke
looking at me and left. I was
a bit scared. Of course, these
people have their fans. And
now having them view that
as an attack on their person
alienates..," she added.
She cites her mother, who
always encouraged her to
speak out her mind from a
tender age, as her role model.
“My mum is outspoken,
honest and hardworking. She
is not one to let someone
step on her. There has always
been freedom of speech at
home where conversations
made our home feel like a
parliament.
She narrated that, at the
end of the year, they would
gather around a meal with
their parents and would be
encouraged to speak out
about anything that we felt
was not correct without being
reprimanded.
"Everyone got a chance to
speak. So, if we were making
a review of our dad, everyone
would say something about him.
We spoke about what he did
well and what he didn’t do well.
"Our parents would apologise
if we pointed out their faults
and vice-versa. So, if it was
your turn to be spoken about
you also needed to remain
silent. If you made a mistake,
you would apologise and
we would later drink mursik
(traditionally fermented milk)
together,” she reminisced.
Her pride is that some
people have and continue
to appreciate her gesture of
speaking out for many. Other
people from whom she draws
inspiration include the late
Nelson Mandela and Nobel
Peace Prize winner, the late
Prof Wangari Maathai. “These
are people who fought for
and stood up for what they
believed in, no matter the
consequences," Ms. Tarus
explained.
The 24-year-old who will be
turning 25 in November 2023,
said her leadership skills
were honed in primary school
where she once served as a
head girl while in Standard
Seven at All Saints Kebulonik
Primary School in Nandi
County back in 2011.
Her friend Daisy Jebet
describes her as a bold and
courageous lady who does
not shy away from speaking
her mind. Ms. Jebet has an
anthology of poems about
mental health and care.
She would like society to
understand the challenges
people with mental health
issues go through as one
way of ending stigma against
them. “I lost two of my close
friends to suicide last year.
And if we had spoken about
it, probably it would not have
happened. That’s why I am
passionate about matters
revolving around mental
health,” she added.
Her poetry also advocates
against Female Genital
Mutilation. Her ultimate
dream is to work with
United Nations Environment
Programme as an
environmentalist.
SEPTEMBER 2023 17
 Picketing ornaments

By Bonface Nyamweya

Smouldering tyres warm the dawn

The poor have doubted their blessedness
With sooty sufurias cupping their heads
They are granaries of emptiness
Towers of beaten broken hopes
Tied strangled lies
OCPD detects it as an altar of violence
And sends hot hating boots
As esteemed high priests
To touch the crowd pulling crowd
To curb by clubs, their claps
Stones flying like anti-matter
Have met hearts of stone
Flying stones know no impenetrability
The piano of the siren
Spices the rowdy crowd’s mantra:
No to bottoms-up
The cursed is in Mwamotumbi Hotel
Burying bottomless ribs down his throat
Tables of mama-mbogas
Are overturned and forced to belch flames
Fire like ink, tattoos-
What is right:
That death is what is left alive, in violence
And life is what remains in all;
In each meaningful dialogue held.

18 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 Justice Kiage and the
total Constitution
Judicial protection of religious minorities
in Kenyan schools
By Joshua Malidzo Nyawa
Introduction
The term ‘total Constitution’
is borrowed from Mattias
Kumm who in his ‘Who
is Afraid of the Total
Constitution’1 distinguishes
a total Constitution from a
total state. In a total state,
‘everything is up for grabs’
politically2 and politics is
considered as the guide. In a
total Constitution, however,
the Constitution and not
politics is the guide. Further,
a total Constitution contains
rights that establish defences
against the excesses of the
government and also calls
upon the state to intervene
on behalf of victims against
threats from third parties.
Most important however is
the fact that, unlike a total
state, a total Constitution
provides for the judicial
enforcement of constitutional
rights and constrains the
public authorities by requiring
them to either intervene
or refrain from violating
the constitutional rights.3
Kumm further observes that
a total Constitution offers
Mattias Kumm
a ‘commitment to complete
constitutional justice’.4
requires its aura and leitmotifs
In sum, a total Constitution to govern all areas of law,
is one in which the rights both the public and private
of not only the majority but spheres. It is without a
even those of the minority doubt that the Kenyan 2010
are protected, one in which Constitution can be described
the constitutional rights can as a total Constitution. The
be judicially enforced and Constitution declares its
not left to be determined supremacy,5 contains an
by the whims of politics. expansive bill of rights for
Thirdly, a total Constitution all persons,6 applies the

1
Mattias Kumm ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’ (2019)
7(4) German Law Journal.
2
Ibid Pg 343.
3
Ibid Pg 344.
4
Ibid pg 369.
5
Constitution of Kenya, 2010 Art 2.
6
Constitution of Kenya, 2010 Chapter four.

www.theplatformmagazine.co.ke SEPTEMBER 2023 19

bill of rights to both public
and private entities7 and
establishes an independent
judiciary to enforce the bill of
rights.8

However, a total Constitution

on its own and without
more will not transform
society. Put differently, a
total Constitution containing
rights that protect the citizens
from the state and non-state
entities or protecting the
minorities from the majority
groups is not sufficient if there
is no willing and able judiciary
to enforce the progressive
bill of rights and protect the
minorities. This is the point
that the Court of Appeal and
particularly Justice Kiage
has realized, that courts and
judges must be responsive to
the pleas, cries and tears of
the minorities and they must
seize every claim that comes
before them as an opportunity
to advance transformative
justice. Judges can only
do this by not adopting a
cautionary approach to
human rights adjudication,
what Cass Sunstein – has
termed ‘judicious avoidance’9
like the unfortunate moment
of Kenya’s Supreme Court in
Fugicha.10
Justice Patrick Kiage
Differently, we can
comfortably call the Court of
Appeal a religious minorities’
court par excellence, it is the
only court that the religious
minorities are guaranteed
judicial protection such as
in Fugicha11 and SDA.12 It is
not the High Court that has
given us a mixture of bitter-
sweet moments the High
Court’s worst moments in
Kenya High,13 Samia sub-
county parents14 and Ndanu
Mutambuki.15 At least the
Court of Appeal is not like the
Supreme Court which chose
to run away from merits and
ignored obvious and explicit
constitutional injunctions
which obliged it to deliver
substantial justice.
If there is a judge who has
correctly appreciated the
constitutional injunction
to promote the spirit and
object of the freedom of
religion under Article 32,
then it is justice Kiage. Put
differently, if there is a judge
who has appreciated the great
obligation imposed on the
judiciary in the post-2010
constitutional dispensation,
then it is Justice Kiage.
Justice Kiage has correctly
appreciated that the fibres,
spirit and philosophy of our
Constitution is to create

7
Constitution of Kenya, 2010 Art 20.
8
Constitution of Kenya, 2010 Arts 22, 23, 165.
9
I Curry ‘Judicious avoidance’ (1999) 15 SAJHR 138, drawing on CR Sunstein Legal reasoning and political conflict (1996).
10
Methodist Church in Kenya v Mohamed Fugicha & 3 others [2019] eKLR.
11
Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others [2016] eKLR.
12
Seventh Day Adventist Church (East Africa) Limited v Minister for Education & 3 others [2017 eKLR
13
Republic v Head Teacher Kenya High School & another Ex-parte SMY (a minor suing through her mother and next friend A B) [2012] eKLR.
14
Republic v Secretary Board of Management St. Jg Secondary School & another; Samia Sub County Parents Association (Interested Party) & another
[2019] eKLR.
15
Ndanu Mutambuki & 119 Others Vs. Minister for Education & 12 Others [2007] eKLR.

20 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 mandatory weekly thirty-
minute catholic mass
organised by the school.
Before the expulsion, the
students and their parents
petitioned the school against
the compulsory attendance
of non-classroom interfaith
activities, which they deemed
adverse to their freedom
of religion. That petition
prompted a meeting of the
school’s board of management
which dismissed the concerns
of the appellants, determining
that all students in the school
were bound by the rules and
regulations which included
a mandatory 30-minute
an equal and just society same can be limited under Catholic Mass every Friday
founded on the maximum Article 24 of the Constitution. morning. Primarily, the board
respect for human rights and Thirdly, the paper will briefly of the school was saying that
importantly, equality, dignity comment on the concept of before joining the school, the
and liberty. indirect discrimination and students and their parents
non-neutral rules before knew of the rules and they
This brief commentary considering the concept of were bound by them. For
considers the recent decision reasonable accommodation. starters, this argument is
of the Court of Appeal ( Kiage, In the next part, the paper will not new and has been made
Tuiyott and Ngugi) authored consider some of the concepts before. The school was saying
by Justice Kiage in Phillip that were not addressed in that the parents had the right
Okoth vs Board of Management the judgment which I consider to choose which school to
St Annes Primary School important. take their children and once
Ahero.16 they chose St Anne, they were
Background to the case: bound by the rules.
The paper proceeds on the Phillip Okoth vs Board of
basis that Justice Kiage Management St Annes This resulted in a petition at
has correctly grasped the Primary School Ahero the High Court before Justice
mandate imposed on judges Ochieng. In the petition, the
by the Constitution. The The facts of this case are petitioners alleged that the
commentary will first provide pretty straightforward. In this school violated their freedom
a background of the case. case, school students who of religion under Article 32
Secondly, it will consider belonged to the Jehovah’s of the Constitution. The
the freedom of religion Witness domination were honourable judge however
under Article 32 of the expelled from school dismissed the petition and
Constitution and how the for refusing to attend a held that the parents and the

Philip Okoth (Suing as next friend of A.A., I.A., B.A., F.A, G.O., S.N., I.O., W.T., & P.S.) and another vs Board of management St Annes Primary school Ahero
16

and others) (2023) eKLR.

www.theplatformmagazine.co.ke SEPTEMBER 2023 21

1st petitioner had originally
accepted the school rules and
regulations which included
the requirement that all
students must attend the
mass on Friday mornings.
What the judge said though
not expressly is that the
constitutional entitlements
can be stopped by estoppel.
Further that the constitutional
rights just like a child’s toy
can be left at the school gate
and the student can pick it up
at the end of the day and go
home with it. That the school
rules are the alpha and omega
way above the Constitution
and the school premises
are an island where the
Constitution does not reach.
Far from it and as Justice
Kiage found in the appeal,
the schools are not enclaves
and the Bill of Rights reaches
them.
Right to religion and
limitation of rights
Article 32 of the Constitution
provides for the freedom
of religion and expressly
protects people from being
compelled to act or engage in
any activity that is contrary
to the person’s belief or
religion. In the case at hand,
the petitioner alleged that by
being forced to attend the
catholic prayers was contrary
to their beliefs and religion.
Justice Ochieng however
found that the right under
Article 32 is not absolute and
can be limited. Although this
is true, the learned Justice
Ochieng failed to consider the
constitutional muster under
Article 24 of the Constitution.
Article 24 establishes the
parameters that every
limitation must pass for it
to be justified. Justice Kiage
picks this up at the appeal
stage and correctly so. Justice
Kiage finds that compelling
students to participate in
interfaith activities contrary
to their belief is a violation
of their freedom of religion
under Article 32 of the
Constitution.17 Justice Kiage
then proceeded to consider
the school’s argument
whether the students and
parents were estopped by
their conduct from refusing
to participate in interfaith
activities. He holds and
correctly so that their conduct
could not possibly limit their
constitutionally guaranteed
rights. Most importantly,
Justice Kiage finds that
‘Rights are entitlements that
one can demand and stand
on’. Justice Kiage relies on the
earlier jurisprudence of the
Court of Appeal in SDA and
Fugicha. In SDA, the court
was faced with similar facts
where students belonging to
the Seventh-day Adventist
domination were forced by
school rules to attend classes/
sit for exams during their
Sabbath. The Court of Appeal
held that requiring students
to choose between religious
beliefs and education simply
because they are accepted
to be bound by the school
rules violated Article 32 of
the Constitution. The Court of
Appeal found that:
“…in any event the students
had the choice to join any
other school where they
would freely practice their
religions and observe the

Judgment, Pg 21.
17

22 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 Sabbath. This view is not
only impractical, but also
ignores many factors that a
student or parent considers
in choosing a school, such
as the availability of public
schools where the students’
particular religious beliefs
would be accommodated,
the student’s personal
career choice and academic
standards of the school.
It violates, not only sub-
article (3) of Article 32 of the
Constitution but also section
34 of the Basic Education
Act”.
The Court of Appeal similarly
rejected the estoppel
argument in fugicha where
a parent contested the
school rule that forbid the
students from wearing hijabs.
The parent argued that
hijabs formed an essential
element of the Islamic faith.
The school argued that the
students and the parents had
signed the admission letter
containing the rules and
they were bound by them.
In rejecting the argument,
the court of appeal held that
schools are not ‘enclaves’
operating outside ‘the reach
of the sunshine of liberty and
freedom that the Constitution
sheds and schools cannot
raise an estoppel against the
Constitution’. The Court of
Appeal held that:
“We are not prepared to
hold that, by merely signing
the admission letter or the
Article 20.
18
www.theplatformmagazine.co.ke
school rules, a student and/
or her parent or guardian
is thereby estopped from
raising a complaint or
seeking exemptions ex
post facto. Where, as
here, the exemptions or
accommodation sought
are on clear constitutional
grounds, it would be
escapist even surreal, for a
court to point at the signed
letter of admission as a bar
to assertion of fundamental
rights and freedoms. We do
not accept that schools are
enclaves that are outside
the reach of the sunshine
of liberty and freedom that
the Constitution sheds.
Students do not abandon
their constitutional rights
when they enter the
school gate to regain them
when they leave. Nor can
fundamental rights and
freedoms be contracted
away in the name and at the
altar of education. Schools
cannot raise an estoppel
against the Constitution. No
one can. We are firm in our
assessment that students
in Kenya are bearers and
exercisers of the full panoply
guarantees in our Bill of
Rights and they are no less
entitled to those rights by
reason only of being within
school gates.”
For Justice Kiage therefore,
the question was pretty
simple. Whether the students
held a sincere belief against
the interfaith activities? If
the answer to this was yes,
then there was a violation
under Article 32 of the
Constitution. Justice Kiage
correctly finds that the trial
court judge posed the wrong
question, it is not whether
the parents accepted the
rules but whether there is a
belief sincerely held. Article 2
of the Constitution declares
its supremacy and that every
rule or regulation must bow
to it. Rules and regulations
cannot oust the operation of
constitutional entitlements.
Put differently, constitutional
entitlements are not clothes
that are stripped off at the
school gate, but students go
with these entitlements into
schools.
There is a more fundamental
point that Justice Kiage
and the Court of Appeal are
making although impliedly.
The point is that the 2010
Constitution is all-pervasive.
The Constitution declares
its supremacy and further
requires all laws to be
developed18 to ensure that
they are in line with the
Constitution. This is to mean
that laws and including rules
and regulations must be in
tandem with the Constitution.
This is simply because the
all-pervasive nature of the
Constitution decries a parallel
system of law. We cannot
have a Constitution on one
hand and the rules on the
other, the rules just like the
common law must bow down
SEPTEMBER 2023 23
to the king! This is the idea
shared by A. Chaskalson who
traces the all-pervasive nature
of the Constitution in his
‘From Wickedness to Equality:
The Moral Transformation of
South African Law’19 to be
contained in the supremacy
provision, the preamble
(which contains the goals
and values) and the demand
for the development of the
common law. What Justice
Chaskalson said is pretty
simple, the Constitution does
not insulate certain elements
and/or establishments Late Justice Chaskalson
from the effects of its
transformative agenda.20
This point is made although In a constitutional is whether the violation of
on different terms by the democracy, the constitution Article 32 is justified under
Supreme Court of America in is supreme, the constitution Article 24 of the Constitution.
Chalifoux v New Caney Indep is the alpha and omega in Justice Kiage holds that the
School Dist 976 F Supp 659 terms of hierarchy.” trial judge erred by failing
(SD Tex 1997) that: to consider all limbs under
In conclusion on this issue, Article 24. What Justice
“The other sickening schools and school rules Kiage wanted to say is that
argument advanced by the cannot operate outside the Article 24 of the Constitution
schools and the state is Constitution and students occupies an important
that the children and their into the school gates with place in our constitutional
parents have the right to their rights. The school adjudication and every judge
choose whether to take their through its rules cannot must engage it in its entirety
children to that school or therefore compel a minority and not only consider it in
not and once they choose to conform to the mainstream passing.
to take the children to that beliefs. In other words, school
school, they equally choose rules cannot sin against the Indeed, the place of Article
to be bound by those rules. Constitution and when they 24 (limitation clause) cannot
We find this argument do, they must collapse! be gainsaid. Transformative
sickening because it fails to Constitutions21 create
observe the basic principle The second issue that was a culture of protection
of constitutional democracy. considered by Justice Kiage of rights22 by including

19
A. Chaskalson, ‘From Wickedness to Equality: The Moral Transformation of South African Law’, (2003) 1(4) International Journal of Constitutional
Law 590, at 599.
20
Ginsburg Tom, ‘Economic Analysis and the Design of Constitutional Courts’, 2002 3(1) Theoretical Inquiries in Law 49–84.
21
On the concept of transformative constitutionalism, see Karl Klare, in his article, “Legal Culture and Transformative Constitutionalism,” (1998) 14
South African Journal of Human Rights 146, who conceptualizes the concept to mean “By transformative constitutionalism I mean a long-term
project of constitutional enactment, interpretation, and enforcement committed…to transforming a country’s political and social institutions and
power relationships in a democratic, participatory, and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing
large-scale social change through non-violent political processes grounded in law.”
22
Walter Khobe, ‘Transformation and crisis Legal Education in kenya’, (2016) 25 Platform for law, justice and society pg 66-70

24 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 limitation clause must be
given a proper analysis and
should not be considered just
in passing.

Indirect discrimination and

non-neutral neutral rules

Article 27 of the Constitution

Justice Kathurima M’inoti
a limitation clause that
requires justification for
any limitation of the Bill of
Rights.23 It is for this basis
that Justice Kathurima
M’inoti while comparing the
retired Constitutions and
the 2010 Constitution noted
that whereas the retired
Constitutions contained
the “Bills of Exceptions’, the
2010 Constitution eschews
cataloguing all and sundry
exceptions to the guaranteed
rights.24 What the learned
Judge stated is that the 2010
Constitution under Article
24 introduces a culture of
justification and this requires
judges to ensure that every
limitation or intervention by
state meets the limitation test
provided for by Article 24.25
The point being made is that
when limiting a right, the
conditions and requirements
of Article 24 are not to be
taken as a mere instruction to
a judge, they are mandatory
in nature as it was noted in
Samuel Manamela & Another v
The Director-General of Justice
where the Constitutional
Court of South Africa, in
considering the limitation
clause which is in parimateria
to Article 24, cautioned
against using the factors set
out therein as a laundry list
or in Kenya’s Supreme Court
words in Karen Njeri Kandie
V Alassane Ba26 that the test
must not ‘be conducted
mechanically’.27 Justice Kiage
must be commended for
reiterating this call that the
prohibits both direct and
indirect discrimination. The
Constitution, therefore,
looks at both the act and the
outcome of an act.28 Direct
discrimination is the most
common and visible form of
discrimination. It is simply on
the face of the law or policy.
Take the example of St Anne’s
school, if the school’s rules
stated that people from the
Duruma community were
not eligible for scholarships,
one can easily point out
that there is discrimination
based on ethnicity. Indirect
discrimination on the other
hand may not be easy to
notice. It occurs where
although the law or policy
does not discriminate
against anyone on the face
of it, its consequences or
the application of the law or
policy does. This is always the
case with ‘neutral rules’. Take
the example of the hijab case
where the school rules simply
provide for a dress code
and do not include a hijab.
Although one might say that
this rule applies to everybody,

23
See Attorney-General & another v. Randu Nzai Ruwa & 2 others Civil Appeal No. 275 of 2012; [2016] eKLR.
24
See the Separate Opinion of Justice Kathurima M’Inoti in Mtana Lewa vs Kahindi Ngala Mwagandi, Civil Appeal No. 56 of 2014.
25
Albertine Veldman, ‘the Protection of the Fundamental Right to Strike within the Context of the European Internal Market: Implications of the
Forthcoming Accession of the EU to the ECHR’, 2013 Volume 9, Issue 1 Utrecht Law Review 104.
26
The supreme court of Kenya in Karen Njeri Kandie V Alassane Ba (2015) EKLR, Petition No. 2 Of 2015
27
ibid at para 77; see also the court of appeal in East African Breweries Limited V the Hon. Attorney General Civil Appeal No. 344 of 2013.
28
See C McCrudden ‘Theorising European equality law’ in C Costello & E Barry (Eds) Equality in diversity (2003) 19-33.

www.theplatformmagazine.co.ke SEPTEMBER 2023 25

it is the Muslim students who
suffer the brunt of it by being
forced to choose between
being in school or wearing
their hijabs which is a core
element of their belief.

It is on the realisation that the

so-called neutral rules were
indeed not neutral that post-
war Constitutions prohibit
both direct and indirect
discrimination. Langa D.P
(later CJ) in the case of the City
Council of Pretoria29 held that;

“The inclusion of both direct
and indirect discrimination,
within the ambit of the
prohibition imposed by
section 8(2) [our Article
27(4)] of the Constitution,
evinces a concern for
the consequences
rather than the form of
conduct. It recognizes
that conduct which may
appear to be neutral and
non-discriminatory may
nonetheless result in
discrimination and, if it
does, that it falls within
the purview of section 8(2)
[our Article 27(4)] of the
Constitution.”
Similar reasoning was by the
Canadian Judge Dickson (later
CJ) who expressed himself
in R –vs- BIG M. DRUG MART
LTD30 thus “both purpose
and effect are relevant in
determining constitutionality;
either an unconstitutional
Discrimination is often rooted in prejudice, stereotypes, and systemic
inequalities. It can occur on an individual level (individual discrimination) or
within institutions, laws, and policies (institutional discrimination).
purpose or an unconstitutional In considering cases brought
effect can invalidate legislation by religious minorities, courts
[or any policy].”31 therefore should not be
blinded by these non-neutral
The Court of Appeal in neutral rules which although
Fugicha underscored the appear neutral, they are
import of Article 27(4) of the actually non-neutral for the
Constitution and held that simple reason that these rules
‘The framers of the 2010 don’t take into account the
Constitution and the people beliefs of the students. On the
in promulgating it were other hand, these rules seem
alive to this all-important to clothe everyone with the
distinction between direct attributes of the dominant
and indirect discrimination culture, religion or ethnicity.32
and were careful to proscribe The South African court
both forms in express terms recognised this sad scenario in
in Article 27(4). For a court MEC for Education where the
to fail to enquire into that court held that:
aspect, especially where, as
here, the indirect character “The norm embodied by
of the discrimination is cited the Code is not neutral,
and submitted on, is a serious but enforces mainstream
non-direction and amounts to and historically privileged
a reversible error of law. forms of adornment, such

29
City Council of Pretoria V Walker [1989] ZACC 1.
30
R –vs- BIG M. DRUG MART LTD [1985] 1 S.C.R. 295.
31
See also Naz Foundation V. Govt. of NCT of Delhi, 160 Delhi Law Times 277 (Delhi High Court 2009).
32
S Fredman ‘Equality: A new generation’ (2001) 30 Industrial Law Journal 145 154.

26 SEPTEMBER 2023 www.theplatformmagazine.co.ke


as ear studs which also
involve the piercing of a
body part, at the expense
of minority and historically
excluded forms. Accordingly
a burden is placed on
learners who are unable to
express themselves fully
and must attend school in
an environment that did not
completely accept them.”33
The Point being made as
advanced by Justice Kiage
in the decision is that these
neutral rules have a disparate
impact upon the believers of
minority dominations on the
simple basis that these rules
only reflect the mainstream
social norms and ignore the
beliefs of the minority.
Most importantly however is
the fact that Justice Kiage has
those that we consider
to be different from us.34
The principle forbids the
state or the majority from
coercing the minority to
conform to mainstream
views or behaviour. Rather,
it calls on the state and
other establishments
to accommodate the
minority by going to an
extra level to ensure that
they are comfortable.
Reasonable accommodation
requires states and other
establishments such as
schools to incur small
appreciated that the religious inconveniences in order
minorities question requires to take into account the
a judge to wear a ‘religious religious minorities rather
minorities lens’, enabling him than forcing a homogenous
or her to see beyond rules treatment/requirements35.
that seem innocuous on the In this case, for instance, the
surface but are indirectly full school would be required
of discriminatory content. to provide a separate room
When doing so, the judge is for these students to attend
not asked to favour religious their prayers than compelling
minorities but he or she is them to attend the catholic
called upon to apply the prayers which are contrary to
law in such a way that will their beliefs. The concept of
pay attention to the lived reasonable accommodation
experiences of the minorities. in schools and other
This is exactly what Justice establishments cannot be well
Kiage did. explained way better than
in the words of the South
Reasonable African Chief Justice in Pillay36
accommodation in Kenya that,
The principle of reasonable “Two factors seem
accommodation is pretty particularly relevant.
simple, that as a society First, a reasonable
we accept to live with accommodation is most

33
MEC for Education: KZN v Pillay 2008 (2) BCLR 99 (CC); 2008 (1) SA 474 (CC) at par 44. See also Young IM Justice and the Politics of Difference
(University Press Princeton NJ 1990) 168: "Integration into the full life of the society should not have to imply assimilation to dominant norms and
abandonment of group affiliation and culture. If the only alternative to the exclusion of some groups defined as other by dominant ideologies is
the assertion that they are the same as everybody else, then they will continue to be excluded because they are not the same."
34
See Trans World Airlines –Vs- Hardison 432 US 63 (1977) at 84
35
R –vs- Videoflicks [1984] 48 O.R. (2d) 395.
36
MEC for Education: KZN v Pillay 2008 (2) BCLR 99 (CC); 2008 (1) SA 474 (CC) at para 78.

www.theplatformmagazine.co.ke SEPTEMBER 2023 27

 appropriate where, as in
this case, discrimination
arises from a rule or practice
that is neutral on its face
and is designed to serve
a valuable purpose, but
which nevertheless has
a marginalizing effect on
certain portions of society.
Second, the principle is
particularly appropriate in
specific localized contexts
such as an individual
workplace or school, where
a reasonable balance
between conflicting
interests may more easily be
struck.”
Justice Kiage correctly applies
this principle in this case.
He holds that the school
would not have suffered
any hardship by exempting
the appellants from the
30-minute Friday mass. The
judge further expounds on
this principle as follows:
“Essentially therefore, I am
of the view, as was admitted
by parties herein, that the
school would not have
suffered any hardship by
exempting the appellants
from the 30-minutes Friday
Mass. In compliance with
the concept of reasonable
accommodation, the school
ought to have adjusted its
rules to enable all students
37
Judgment page 24-26.
38
Prince v President, Cape Law Society & Others 2002 2 SA 794 (CC).
39
See Majanja J in Consumer Federation of Kenya (COFEK) v Attorney General & 2 others [2012] eKLR at para 42; See Robert K. Ayisi v Kenya Revenue
Authority & another [2018] eKLR at para 60.
40
See the German Federal Constitutional Court in Luth Decision BVerfGE 7, 198 I. Senate (1 BvR 400/51).
41
Carmichele vs. Minister of Safety and Security (CCT 48/00) 2001 SA 938 (CC).
42
Pharmaceutical Society of Kenya v National Assembly & 3 others [2017] eKLR at para 95-99: see also Samura Engineering Limited & 10 Others V
Kenya Revenue Authority [2012] eKLR at para 57.
28 SEPTEMBER 2023
to practice their respective
religions while still
complying with the school
rules and regulations…..
The school should have
worked out a reasonable
accommodation for the
appellants, especially
considering the fact that it
was a public school, a school
maintained or assisted out
of public funds.”37
The principle of reasonable
accommodation, therefore,
requires the state or schools
to walk the extra mile and not
subject believers to a choice
between their faith and the
school rules.38
Missed opportunities
Although the Learned Judge
reached the correct position,
this section considers two
elements that the author
thinks applied to the case but
were not raised both by the
Court and the litigants;
a) Value-based
interpretation
The 2010 Constitution
embodies a value system
containing values which
are expected to nourish
the Bill of Rights and the
Constitution in general.39
These values are expected
to ’apply as a constitutional
axiom throughout the whole
legal system: it must direct
and inform legislation,
administration and judicial
decisions.40 Put differently,
these values are required to
act as a guiding principle or
in the words of the South
African Constitutional Court,
they are expected to not only
be a guiding principle but
also a stimulus for three arms
of government.41 The value
system, therefore, calls for
a teleological interpretation
of the Constitution which
requires courts to ensure that
when interpreting the Bill of
Rights, this also leads to the
realization of these values.
Judges must avoid a structural
minimalist approach but it
should in the performance of
its judicial function espouse
the value system in the
Constitution.42 The point
here is that the Constitution
has a soul and spirit which
is ingrained in the national
values under Article 10.
Article 10 provides that
the state organs (including
the judiciary) are bound by
the national values when
interpreting or applying
the Constitution and
when enacting, applying
or interpreting any law.
Article 20(4) asks the courts
www.theplatformmagazine.co.ke
 world views and lifestyles in a
reasonable and fair manner’.43
The other appropriate
question is, what did Kenyans
mean when they declared in
the preamble that they are
proud of their ethnic, cultural
and religious diversity?
What do the values of
human dignity, social justice,
inclusiveness, equality, human
rights and non-discrimination
require/mean? Certainly,
Kenyans recognised their
diversity and are proud of it.
Kenyans wanted to establish
a society where the minority
are not coerced to conform
to the ways of the majority.
This is the diversity that they
were speaking about. The
willingness to accommodate
each other in the society.
Although the Judge reached
It's important to note that while significant progress has been made in the correct position, the
promoting and protecting children's rights, challenges and violations still exist in
many parts of the world.
court should have seized the
moment to deploy Article 10
of the Constitution.
to promote the values This constitutional call is not
that underlie an open and dependent on the parties b) Best interests of
democratic society based pointing out a violation of the child
on human dignity, equality, the national values in their
equity and freedom when pleadings, it is the court who The Constitution imposes
interpreting the Bill of Rights. are constitutionally mandated a constitutional injunction
Finally, Article 259 of the to enforce those values. on the judiciary to consider
Constitution provides a The question that the court the best interest of a child
constitutional interpretation should have posed was, what in every matter that comes
theory by requiring that is an open and democratic before it for adjudication.
the Constitution shall be society? Does it not entail the Article 53(2) of the
interpreted in a manner accommodation of differences Constitution provides that
that promotes its purposes, in a community? Justice Sachs “in all actions concerning
values and principles. The reasoned that the ‘hallmark children, whether undertaken
Constitution, therefore, of an open and democratic by a public or private
declares that it is not an society is its capacity to institution, courts of law,
empty shell but it has values accommodate and manage administrative authorities or
which must be promoted. difference of intensely held legislative bodies, the best

Minister of Home Affairs v Fourie supra para 95

43

www.theplatformmagazine.co.ke SEPTEMBER 2023 29

interest of children shall be a
primary consideration”. This
injunction is also contained
in various international
instruments which the state
has ratified. For instance,
Article 3(1) of the Convention
on the Rights of the Child
requires that in all actions
concerning children, the best
interests of the child shall
‘be a primary consideration’.
Formulated differently, Article
4(1) of the African Charter on
the Rights and Welfare of the
Child, requires that the best
interests of the child ‘shall be
the primary consideration’.

The Committee on the Rights

of the Child has recognised
this principle as a ‘Right’ in
General Comment 13 and
interpreted it as:
“The right of the child to
have his or her best interests
assessed and taken as a
primary consideration when
different interests are being
considered to decide on
the issue at stake, and the
guarantee that this right will
be implemented whenever
a decision is to be made
concerning a child, a group
of identified or unidentified
children or children in
general.”
The Committee in its General
Comment 14 established
how best interest should be
viewed as a threefold concept:
First, as a substantive right,
namely the child's right to
have his or her best interests
considered. Secondly, as
an interpretive principle, to
be applied in determining
whether a legal provision is
the most favourable for a
child or children. Third, as a
rule of procedure, requiring
that decision-making
processes about a child or a
group of children must include
a consideration of the impact
of the decision on them.44
Therefore the point being
made is that this injunction
is both a guiding principle
and a right.45 In adjudicating
disputes involving children, it
can be invoked as a principle
or a right. Secondly, the
best interests of a child
need not be pointed out
by the litigants (although
litigants must address it in
their submissions), courts
and judges are injuncted by
the Constitution to apply
it. Firstly, it is important to
note that the principle is
included in the expansive bill
of rights and secondly, the
Constitution provides that
a child’s best interests are
of paramount importance in
every matter concerning the
child. The courts are therefore
injuncted to give more
weight to the best interests
of the child. This analysis
finds support in the Children
Act (2022) enacted to give
effect to Article 53 of the

CRC/C/GC/14, par 6.
44

Fitzpatrick 2000 (7) BCLR713 (CC). para 17; M v S para 22. In Fitzpatrick, the best interests of the child are referred to both as a standard (para
45

18) and as an independent right (para 17).

30 SEPTEMBER 2023 www.theplatformmagazine.co.ke

Constitution.46 Section 8(2)
of the Act provides expressly
that:
“All judicial and
administrative institutions,
and all persons acting in the
name of such institutions,
when exercising any powers
conferred under this Act or
any other written law, shall
treat the interests of the child
as the first and paramount
consideration to the extent
that this is consistent with
adopting a course of action
calculated to—
(a) safeguard and promote
the rights and welfare of
the child;
(b) conserve and promote
the welfare of the child;
and
(c) secure for the child such
guidance and correction
as is necessary for the
welfare of the child, and
in the public interest.”
Further, the constitutional
injunction requires courts
to develop a child-centred
approach in adjudicating
disputes involving children.
This is a recognition that
children are vulnerable and
developing and therefore
deserve special protection. It
is for this reason that Justice
Mativo recognised in M W K
Case at para 92:
“Children need special
protection because they are
among the most vulnerable
The children Act, 2022 Long title, sec 3.
46
The Teddy Bear Clinic for Abused Children versus Minister of Justice and Constitutional Development [2013] ZACC 35 para 1.
47
www.theplatformmagazine.co.ke
members of society…As a
result, the drafters of our
Constitution made children’s
rights a priority - and stated
that the best interests of
a child are the overriding
concern when it comes to
any matter affecting a child.
Thus, the inclusion in the Bill
of Rights of a provision on
the rights of the child was an
important development for
Kenyan children.”
Justice Khampepe
appreciated that children
are precious members of
society and that there is a
duty imposed on all arms of
government to ensure that
they receive the support and
assistance that is necessary
for their positive growth and
development.47 In litigating
the issue that was before
the court, an appropriate
question which should have
been posed but was not is
whether expelling a child from
school for failure to abide
by rules that require him to
forfeit his beliefs served to
promote the best interests of
that child. What was the best
interest of the child in this
scenario? Although the court
arrived at a correct holding, it
is unfortunate that the court
and the litigants did not take
time to develop this principle.
Conclusion
The enforcement and
implementation of the
Constitution is a heavy
responsibility that falls on
the shoulders of the judges.
This task however requires
that the judiciary be filled by
‘bold spirits’ who are ready
to deploy the Constitution in
favour of the weak, outcasts
and the have-nots. When
the judiciary is composed of
timorous souls, the rights in
the Constitution will simply
remain paper rights. It is the
place of high-ranking judges
to churn out jurisprudence
that will help us realise
transformative justice. Luckily,
a high-ranking judge, Justice
Kiage, is sitting at the Court
of Appeal and has helped
the religious minorities
quench their justice thirst
by demonstrating in this
judgment as well as being
part of the bench in Fugicha
his deep appreciation of the
Constitution as a vehicle
catalyzing substantive
transformative change in our
country. He sends a clear
message to all and sundry that
there is no forbidden area
where the Constitution shall
not reach.
Joshua Malidzo Nyawa is an
Advocate of the High Court of
Kenya and currently undertaking
an LLM in Human Rights and
democratization in Africa at
the Centre for Human Rights,
University of Pretoria
SEPTEMBER 2023 31
 100 Years of Rugby
in Kenya: 1910-2010
A Century of Pride by Zack Oloo

By Rose Lukalo-Owino

It is a comprehensive and
well-researched book that
chronicles the development of
the game of rugby in Kenya.
The book begins with an
account of the earliest rugby
clubs in Kenya before moving
into stories that elaborate the
sporting and social history
of the game capturing the
role that rugby played in
supporting post-colonial become household names makes the book particularly
structures and segregation and incubators for some accessible. He profiles key
in sports and the post- of the greatest talents to figures in Kenyan rugby
independence development emerge from Kenya including history in words and clearly
of Kenyan society. Mwamba, Blak Blood and identified images bringing to
Mean Machine, teams that life the names of over 1,000
Using the inspiring stories paved the way for dozens of young men and women who
of people who were barely regional outfits and served have shaped the growth of
out of their teens and to entrench the sport among the sport.
fresh out of high school, Kenya’s favourites.
the author recreates the Oloo, a former rugby player
youthful determination that The author’s ability to tell the and administrator himself,
challenged the exclusion of story through the treasured also documents many
Africans from the game and memories and recollections challenges that Kenyan rugby
gave rise to teams that have of players and coaches faced, including the lack

32 SEPTEMBER 2023 www.theplatformmagazine.co.ke

of funding and the lack of
opportunities to play against
top-level opposition. He
records how, despite these
setbacks, Kenya’s national
team went on to qualify for
the Rugby World Cup three
times and won the African
Cup of Nations severally.

Despite allusions to these

weighty subjects that have
dogged the development of
rugby this is definitely a feel-
good book that anyone can
enjoy as it oscillates between
easy-to-read narratives,
hundreds of images, and
pages rich with data about
teams, events and milestones.

In one story, the author

retraces the casual
conversation between rugby
colleagues at a bar that
emerged with a resolve to go
international and saw them
put together Watembezi
Pacesetters RFC – Kenya’s
first touring side - from
among the best seven players
of the time. From their debut
at the Dubai Sevens in 1982
Watembezi established a
solid reputation for Kenya’s
unique fast-paced sevens
play and carved out space for
the country in international
tournaments that has
lasted to date, long after
Watembezi’s ten-year stint
ended.
There is of course room to
build on the book which is let
down in sections by a sloppy
edit that interrupts the flow.
Information about the first
half century of rugby in the
country is also understandably
Kenya Sevens team during a past match.
thin as it predates the rise of
news media and subsequent
growth of digital technologies
and the internet that have
made information ubiquitous;
Oloo's book takes off in
earnest from where Campbell
Cohen left off in his edited
collection of articles - Rugby
Football in East Africa 1909-
1959. Finally, the use of
nick-names and nuanced
references that only players
of the time would understand
- such as the historical
rivalry between the rugby
teams of Nairobi School and
Lenana School -also closes
off some stories to a general
readership.
Despite these concerns 100
Years of Rugby in Kenya:
1910-2010-A Century of
Pride, is testament to the hard
work, personal sacrifice and
dedication that has gone into
growing the sport of rugby
in Kenya and a tribute to
all those who - both on the
field and off - have shaped
the game and the fame and
accolades it has brought to
Kenya. It is totally deserving
of a second edition to flesh
out the first half-century and
a sequel to pull the story
forward to the present and
I recommend it to anyone
interested in learning more
about sports and in particular
rugby, in Kenya.
100 Years of Rugby in Kenya:
1910-2010-A Century of
Pride is published by Next
Step Books.
Buy the book online at:
www.nextstepbooks.co.ke

www.theplatformmagazine.co.ke SEPTEMBER 2023 33

 Towards a more vibrant
and independent media
industry in Kenya

By Francis Basis Maugo

Key Words: Freedom of the

press, media independence,
access to information and
freedom of expression

Abstract

In Kenya, the media industry

has undergone significant
changes in the legal
framework of media laws
since the promulgation of
the Constitution in 2010.
Kenya has witnessed a
deterioration of media
freedom, with journalists
facing various forms of
intimidation, harassment, and
attacks, often at the hands of
the government. This paper
examines the legal framework
of the media in Kenya before
the promulgation of the
2010 Constitution where the
country witnessed several
challenges faced by journalists
in their efforts to report freely,
including restrictive media
laws and policies1 which have
been coupled with arbitrary
arrests and detentions,2
and censorship. Moreover,
the article discusses the
legal framework of media
in the country after the
promulgation of the 2010
Constitution where the media
industry in Kenya received a
significant boost in terms of
legal protection.
The Constitution provides for
the freedom of expression,
including the freedom of
the press and other media.
Additionally, the Constitution
establishes the Media

1
Sec 89 & 90 The Kenya Information and Communication Act of 2013.These sections provided for oppressive provisions that gave the
government the leeway to interfere with the media, including the ability to raid newsrooms and seize equipment, as well as the power to regulate
the content of broadcast media
2
Kenya: Briefing on attacks against journalists March 2020–July 2021< Covid-Response-Africa_Kenya.pdf (article19.org) > Date Accessed
05/05/2023

34 SEPTEMBER 2023 www.theplatformmagazine.co.ke

Council of Kenya, which is
responsible for promoting
and regulating the media
industry in Kenya. However,
despite the new reforms
in the media industry after
the inception of the 2010
Constitution, media industry
is still facing several problems
thus the need for urgent
policy recommendations in
the media industry. To address
these challenges, the article
suggests several possible
solutions, including the need
to reform media laws to
align them with international
standards of freedom of
expression and access to
information and to promote
media pluralism and diversity.
The article argues that there
is a need to enhance media
literacy and civic education to
promote media responsibility
and public trust in the media.
The article concludes by
emphasizing that safeguarding
media freedom and ethics
is critical to promoting
democracy, good governance,
and sustainable development
in Kenya.
1. Introduction
Kenya joined the rest of the
world on 3rd May this year
to commemorate World
Press Freedom Day. The
recent cases of the clash
between the state apparatus
and the media have a great
significance towards the
drastic fall of Kenya’s ranking
in the World Press Freedom
Index. According to the
report, Kenya’s ranking fell
from 69 globally as of 2022
to 116 this year.3 This did
not come as a surprise as the
country has been faced with
several media-related issues
where the freedom of the
press, despite being provided
for in the Constitution (which
ensures that the media
industries are independent
and not to be subject to
any unconstitutional and
oppressive law)4 the state
has always violated. State on
many occasions has taken
drastic measures against
the media outlets thus
undermining the freedom of
the press in the country.
The fight and advocacy for
press freedom came to light,
especially during the KANU
era when the government
of the day by then was
authoritarian. After the
abortive coup in 1982, the
government became paranoid
and adopted an authoritarian
regime to curb any ‘impending
attempt’ to topple the
government. The government
enacted Section 2A of the
Constitution (Repealed) which
made Kenya a one-party
state and severely restricted
freedom of the press. The
government further enforced
restrictive laws to curb press
freedom. The Official Secrets
Act and the sedition laws
were enforced to suppress
and limit the media coverage
of critical issues in the country
as well as commenting on the
government’s flaws. These
oppressive laws posed a
danger and threat to press
freedom thus leading to the
abuse of the rule of law.
Atrocities were committed to
the media fraternity who had
joined the other civil groups

https://rsf.org/en/country/kenya Date accessed 06/05/2023

3

Article 34 Constitution of Kenya 2010

4

www.theplatformmagazine.co.ke SEPTEMBER 2023 35


Journalists and media outlets should be able to express their ideas and opinions
without fear of censorship or reprisals from the government or other powerful
entities.
and politicians in the fight for
constitutional and democracy
reforms to adopt multiparty in
the country.
Freedom of the press is
a fundamental pillar of
democracy, as it plays a vital
role in providing the public
with accurate and objective
information. In Kenya, the
media has been a critical
player in shaping public
discourse and holding those in
power accountable. However,
the exercise of media freedom
has not been without
challenges. The Kenyan
media has had to navigate
a complex web of laws and
regulations that have at times
been used to suppress critical
reporting.5 The recent cases
were observed during the
5
Sections 22 & 23 I of computer Misuse and Cybercrimes Act of 2018.
6
Azimio demos: US says attacks on journalists threaten democracy | Nation Date Accessed 06/07/2023
7
Section 48(b) of Penal Code Cap 63
36 SEPTEMBER 2023
antigovernment riots where
several cases of deliberate
and targeted attacks toward
the members of the press
were reported. At least 25
journalists were reported to
have been attacked by the
state apparatus. There were
a lot of reactions towards the
attack of the media as this
was seen as deliberate threat
and attack to the democracy.6
The clash between the
government and the media
has led to a contentious
relationship, with accusations
of media bias and censorship
from both sides.
2. The legal framework of
freedom of press in Kenya
Kenya media fraternity has
faced several challenges in
its quest for independence
of media and freedom of
press. The government has
been a key role player in the
legal framework of freedom
in the country. The legal
framework in Kenya has two
phases; that is post 2010
Constitution (Period before
the promulgation of the 2010
constitution) and the pre
2010 Constitution period.
Several statutes, legislations
and directives have been
taken by the government,
moves that have greatly
shaped and either positively
or negatively affected the
situation of press freedom in
the country.
2.1 The legal framework
of freedom of press in
Kenya during the pre-2010
Constitution era
The crackdown on media
came into place especially
after the abortive coup
attempt that occurred in
the early hours of 1st August
1982, an occurrence that
made the government
cautious and lethal to its
critiques. Despite this section
of the law prohibiting any
citizen from carrying out
activities that might be
perceived to incite, sedition
or disobey any lawful order
given by a superior officer,
any member of the disciplined
forces or any police officer,7
this section provided for
criminal sanctions for
www.theplatformmagazine.co.ke
journalists who published
articles that were considered
defamatory, seditious, or
likely to cause public disorder.
Journalists who contravened
these provisions faced
imprisonment or fines, which
had a chilling effect on the
freedom of the press. The
government misused it and
several journalists who tried
to comment on any atrocities
of the government were
either assassinated, detained
without trial or harassed.
Renowned journalist such as
Wahome Mutahi and Magayu
Magayu,8 for example, newspapers without a valid required to obtain a license
were repeatedly jailed and license. The government from the government
intimidated and tortured for could revoke the license of and were subjected to
critiquing the evils and the a newspaper if it published government control, which
disregard the government had content that was deemed limited their ability to report
over human rights and rule of offensive or against the independently thus posing a
law. government's interests and great threat to press freedom
the publisher be jailed.10 of press in the country.
The legislation that gave
the government the Until 1992 government- Another oppressive legislation
absolute power to prohibit owned media outlets that the government misused
publications9 posed a great had a monopoly on radio to intimidate and gag the
threat to independence of the broadcasting. Before then, the independence of media
private owned print media government had monopoly in the country was The
industries as the government over the media and thus Official Secrets Act12 which
highly censored their contents controlled the news that could prohibited the disclosure of
and even banning their be aired and made public to government information to
operations. Publication and the public. The enactment unauthorized persons and
dissemination of information of The Kenya Broadcasting made it a criminal offense
through print media outlets Corporation Act.11 This to publish or communicate
in the country was highly Act established the state- any information obtained
censored thus crippling owned Kenya Broadcasting from government sources
the freedom of press in the Corporation (KBC) and gave without authorization. The
country. These provisions it a monopoly over radio Act restricted the media from
thus even made it an offense and television broadcasting. investigating and reporting
to publish or distribute Private broadcasters were on government activities

8
Media freedom in Kenya: analogies are being drawn with Moi's repressive era (theconversation.com) Date Accessed 07/05/2023
9
Section52 of Penal Code Cap 63
10
Section 54(2)(b) Penal Code Cap 63
11
The Kenya Broadcasting Corporation Act, Cap 221
12
The Official Secrets Act Cap 187

www.theplatformmagazine.co.ke SEPTEMBER 2023 37

for instance seclusion of the
public from trial involving
offences under the Act,13
which limited the freedom of
the press.

Despite the government

intimidation the media
fraternity never gave up in
their fight for press freedom
in the country. Notable
activists like Gitobu Imanyara
among others were at the
forefront in the fight for
media independence as well
as the multiparty democracy
in the country. It was
observed that without the
democracy, press freedom
would not be enjoyed as
press freedom cannot thrive
unless there is rule of law and Gitobu Imanyara
democracy in the country.
Kenya had been under one
party rule for a long period. space and provided for phase of media to a proactive
The fight for multi-party opportunities for several phase, a move that led to the
democracy by demanding for political parties to contest opening up of the media and
the repeal of section 2A of the for elective posts and power communication space.14
constitution played a pivotal in the country without being
role towards achieving press intimidated by the ruling Despite these liberalizations,
freedom in the country. party. With the introduction the media fraternity was
of multi-party democracy, always under government
The introduction of multi- the media industry enjoyed control, and it was always
party democracy in 1991 by greater freedom to report on controlled by state machines.
repealing Section 2A of the political issues and to hold Most of these laws worked to
Constitution, which had made politicians and government undermine executive probity,
the country a one-party state, officials accountable. It also so the state resorted to
was the turning point toward allowed for a more pluralistic tightening the laws in order to
realization and achieving media landscape as there strengthen privacy and libel
media independence. The was significant growth in the laws. Media organizations
introduction of multi-party independent media industry continued to heavily rely on
democracy in the country due to the establishment the state for advertisement
played a significant turning of new media outlets. It expenditure during this time
point in the country as it further enabled the country period, jeopardizing the
opened up the political to move from a restrictive independence of the media.

Section 12 of The Official Secrets Act Cap 187

13

Winnie V. Mitullah, freedom of expression in Kenya: Exploring public use of old and new media
14

38 SEPTEMBER 2023 www.theplatformmagazine.co.ke


Nation Media Group
While promoting may have
liberated the press from direct
political control, it presented
its own type of imperatives.15
Private media ownership was
based on your allegiance to
the state and not on your
competency and availability
in a well-scaled-up media
industry. For instance, license
acquisition to own and
operate media industries in
the country was based on
your connection and political
patronage, which in most
cases was the ruling party.
This move by the government
frustrated many potential
media industries. For instance,
Royal Media Services was
George Ogolla The Political Economy of the Media in Kenya: From Kenyatta’s Nation Building Press to Kibaki’s Local Language FM Radio
15
www.theplatformmagazine.co.ke
granted the broadcast license
and the then well-established
media groups with the
necessary infrastructure, such
as the Nation Media Group,
were being denied the same.
Kenyans at large realized that
the introduction of multi-
party democracy played
little role in the realization of
elaborate and well-defined
freedom of the press and
media independence.
With the emergence of a new
political force to unseat the
ruling party KANU, which
had been in power for almost
four decades, the media
fraternity felt like their 40-
year wait in the wilderness
had finally come to an end,
and soon they would enter
the promised land and
enjoy fully their freedoms
and carry out their work
freely and independently.
The incoming political
force, NARC, had promised
Kenyans several reforms,
including the adoption of a
new constitution to mark
the beginning of a new
political era. The formation
of the Media Council of
Kenya played a pivotal role in
regaining media freedom in
the country. It was established
to safeguard media
freedom and to encourage
professionalism and ethics in
the media. The MCK assumed
a significant part in managing
the media business and
guaranteeing that columnists
had the opportunity to cover
issues of public interest. The
new government, however,
faced some challenges a few
years after its assumption.
The then-President failed to
honor the Memorandum he
had signed with his political
partners that demanded
the introduction of other
government posts and other
executive body reforms.
This led to the divorce of the
political marriage leading
to political turbulence in
the country. For instance,
the 2005 constitutional
referendum was rejected by
many of the citizens under the
umbrella of the opposition
SEPTEMBER 2023 39

A free press has the right to access and disseminate information that is of
public interest. This includes information about government activities, policies,
and decisions.
political parties. The political
turbulence witnessed by the
young NARC government was
a blow to the media industry
since the administration
did not live up to some of
its promises. The quest
for freedom of the press
took another nosedive. No
regulations encroaching on
media opportunity were
revoked; instead, a new rule
that required publishers to
post a Sh.1 million bond
with the government
before any newspapers or
magazines were published16
that had been passed by
its predecessor was never
repealed.
This move seemed to have
strengthened the state's
control over the media
fraternity. Additionally, the
16
Section 11 of Books and Newspaper Act Cap 111
17
Chapter 4 of CoK 2010
18
Article 34(1) CoK 2010
40 SEPTEMBER 2023
state patronage of broadcast
license acquisitions continued
in the interim. There was
an apparent and deliberate
attack on the media industry
during the first term of the
NARC regime. The media
fraternity suffered another
blow during the 2007 General
Election that was marred with
election malpractices, which
led to the infamous election
violence that claimed the lives
of many people as well as the
loss of properties of unknown
values. Scores of journalists
were injured, killed, or
detained in this period. Some
media houses were used to
spread the hate speech and
ethnic hatred that catalyzed
the nationwide violence.
With the country still nursing
the fresh wounds sustained
from the post-election
violence, the two warring
parties agreed to form a
coalition government. With
the coalition government,
there was an urgent need
for constitutional reforms.
This led to the call for a new
constitution that could not
only address the issues and
problems witnessed during
the just concluded elections
but also bring key reforms in
the Kenyan legal realms.
2.2 The legal framework
of freedom of the press in
Kenya during the post-
2010 Constitution era
The need to restructure
and bring constitutional
reforms to the country led to
the call for a constitutional
referendum, in which the
citizens voted in the 2010
Constitution with a majority.
With the promulgation of
the 2010 Constitution on
August 27, 2010, there
was a new birth of media
independence in the country.
The Constitution provided
for a whole chapter that
clearly provided for the Bills
of Right. Under this chapter,
the issue of media and press
freedom was discussed and
addressed. The Constitution
provided for a guarantee of
freedom and independence
of electronic, print, and all
other types of media18 and
exempted the state from
exercising control over or
www.theplatformmagazine.co.ke

Journalists should be able to work without fear of harassment, threats, or
violence. Their safety and well-being are essential for upholding press freedom.
interfering with any person
engaged in broadcasting,
the production or circulation
of any publication, or the
dissemination of information
by any medium, or penalizing
any person for any opinion
or view or the content of
any broadcast, publication,
or dissemination.19 The new
Constitution further promised
the citizens the enactment of
new legislation to address the
media situation in the country
as well as regulating the
media industry in the country
and set media standards
and regulate and monitor
compliance with those
standards. This was fulfilled by
the enactment of the Media
19
Article 34 (2)(abs) CoK 2010
20
Section 45 Media Council Act No 46 of 2013
21
Part IV of Media Council Act No 46 of 2013.This Part provided for the Complaints and Dispute Resolutions. It provides for the framework taken
in addressing the complaints and solving the disputes within the media industry in the country.
22
Section 12 of The Official Secrets Act Cap 187
23
Article 35 (1)!a&b) of CoK 2010
24
Article 35(3) CoK 2010
25
Access to information Act No 31 0f 2016
www.theplatformmagazine.co.ke
Council Act of 2013. This new
legislation has played another
key role in the restoration of
media sanity in the country. It
has ensured professionalism
by ensuring adhering to the
media ethics and code of
conduct 20 in the industry as
well as acting as the channel
where the media fraternity
can air out their grievances,
complaints and address their
challenges.21
Prior to the inception of
the Constitution, the media
industry had limited access
to information, especially
the ones touching on the
government's transactions.
Lack of clear provisions in
the repealed Constitution to
allow freedom of access to
information restricted the
media from investigating and
reporting on government
activities, for instance,
seclusion of the public from
trial involving offences under
the Act22 which limited
the freedom of the press.
The Constitution quashed
this provision by providing
for freedom of access to
information. It has thus
enabled any citizen to have
the freedom to access the
information held by the state
as well as the information
held by another person and
required for the exercise or
protection of any right or
fundamental freedom.23 It
has thus enabled any citizen
to have the freedom to
access the information held
by the state as well as the
information held by another
person and required for the
exercise or protection of
any right or fundamental
freedom.24 With the freedom
of access to information being
feasible in this Constitution
and the recent enactment of
legislation to supplement it,25
the media industry is now
able to carry out its activities
smoothly.
Another key constitutional
reform that has taken place is
the inclusion of a fundamental
SEPTEMBER 2023 41
human right, freedom of
expression. Journalists were
the greatest beneficiaries
of these freedoms; they
were able to seek, receive,
or impart information or
ideas, freedom of artistic
creativity, and academic
freedom and freedom of
scientific research.26 The
media industries are now in
the position to air out their
views concerning the state of
the nation as well as seek and
receive any vital information
without being intimidated
by the State. Prior to 2010,
freedom of expression was
highly regulated by state
machines due to oppressive Robert Alai
provisions such as criminal
defamation and sedition.
However, since the inception the Constitution and for it to actors and government
of the new Constitution, the be limited; limitation must be officials. Media independence
country and, most specifically, within the scope and ambit of hasn’t been fully realized
the media fraternity have been the provisions of Article 24 of in the country, as the state
able to air out their views the Constitution.29 has always been accused
and opinions without being of interfering with media
intimidated by state factors. Despite the significant independence in the country.
progress made in the legal
In the case of Alai,27 a framework of media laws, the The media has in most cases
notable blogger, Justice media industry in Kenya still been under attack, and
Mwita echoed the decision faces numerous challenges. sometimes back in 2017,
in the case Jacquline Okota & These challenges have Kenya's standing in terms
Another Vs. Attorney General been witnessed in recent of media independence
& 2 others28 where Justice years, which have been was comparable to that of
Mativo, in relation to criminal characterized by political Kuwait and Lebanon. This
defamation as a limitation tension, election disputes, and was majorly attributed to
of freedom of expression social unrest. The media has the disputes that resulted
under Section 194 of the been a crucial player in the after the 2017 elections,
Penal Code and stated that; coverage of these events, but where media houses were
The freedom of expression is they have also been targeted under attack. For instance,
secured under Article 33 of and attacked by political the major media houses were

26
Article 33 CoK 2010
27
Robert Alai v The Hon Attorney General & another [2017] eKLR
28
Jacquline Okota & Another Vs. Attorney General & 2 others {2017} eKLR
29
ibid

42 SEPTEMBER 2023 www.theplatformmagazine.co.ke


shut down30 during the ‘mock
swearing on’ of the former
Prime Minister Hon. Raila
Odinga. This was an apparent
attack on the media by the
state. According to reports by
ARTICLE 19 Eastern Africa,
the media industry was under
threat from the state as there
were several cases of media
violations reported. According
to the report, there were at
least 94 cases of attacks on
journalists between May 2017
and April 2018.31
The media fraternity is always
under attack, especially during
the electioneering periods.
This is always during the
campaigns towards Election
Day, as well as after the
outcome of the election
results, where most of the
politicians, who always feel
that the elections were not
30
Kenya: Violations of Media Freedom May 2017 – April 2018 <Kenya-Report-1.pdf (article19.org)> Accessed 08/05/2023
31
ibid
32
https://www.the-star.co.ke/news/2017/07/14/goons-attack-and-injure-star-journalist-in-siaya_c1596246 Accessed 08/05/2023
33
https://www.standardmedia.co.ke/article/2001260670/journalists-caught-in-chaos-nurse-injuries Accessed 08/05/2023
34
Press Statement - Media Council of Kenya Caution on Violation of Journalists' Rights.pdf Accessed 08/05/2023
www.theplatformmagazine.co.ke
conducted fairly, hence
leading to them losing,
always end up in the streets.
The most significant are the
2017 and the recent ones,
the 2022 elections. Despite
media independence being
anchored in the Constitution
under Articles 34, 35, and
36, there have always been
apparent violations of these
provisions, especially by the
state machinery. Journalists
have always been victims
of campaign feuds. Some
of them have always been
assaulted and attacked during
the political campaigns for
intake, where it was reported
that Star newspaper journalist
Eric Oloo sustained serious
injuries to his jaw and
teeth after he was beaten
by supporters of Siaya
Governor Cornell Rasanga
at Mwere trading center in
Siaya County32 while others
being attacked during the
election protests where it
was reported that Nation
Newspaper photographer
Dennis Onsongo was attacked
and had his lens stolen while
covering the post-election
protests in the Mathare area
of Nairobi.33 Prior to the 2022
elections, the media council
reported that since January
2022 it had documented
45 cases of press freedom
violations, most of them
related to electioneering and
political campaigns.34 This
year's World Press Freedom
Day came at a time when the
Kenya Media fraternity was
nursing wounds. The media
fraternity is still nursing fresh
wounds it sustained during
the antigovernment protest
that took place for a couple
of days during the months
of March and April. There
were reports of direct and
intentional attacks on the
media industry. There were
reported cases of attacks on
the journalists, where their
devices were confiscated,
and others suffered physical
attacks as well as their
vehicles being damaged.
3.0. Urgent policy
recommendations for
the future
With the increase in cases
of attacks on the media,
SEPTEMBER 2023 43
there are urgent policy
recommendations that need
to be made.
3.1. Promotion of
independent and
democratic elections
One of the major cases of
threats to the media in Kenya
is always witnessed during
electioneering periods. It
is at this time that several
cases of attacks on the media
are reported. Kenya needs
to enhance and promote
peaceful elections. Despite
the fact that the country is
recognized as one of the most
democratic countries in East
Africa in terms of the election
process, the country is always
faced with election-related
violence that, in most cases,
does have a major impact
on the media industries.
Journalists, in most cases,
have been victims of election-
related chaos or feuds. The
past two general elections35
where there were reported
cases of attacks on the
media industry, saw several
journalists physically attacked,
arrested, their gadgets
confiscated, and several
media houses shut down.
There is a need for election
reforms in the country to
enable the whole process
to take place effectively
and peacefully. With recent
dissatisfactions in the last
general elections, Kenya
needs to improve on its
2017 and 2022 General Elections.
35
44 SEPTEMBER 2023
Journalists play a vital role in providing information, holding authorities
accountable and facilitating public discourse, but they often work in challenging
and dangerous environments particularly in regions with political instability,
conflict or high levels of corruption.
electoral systems so as
to avoid the chaos that is
always witnessed, especially
after the elections, where
the politicians who feel the
elections weren't conducted
in a fair manner end up
rejecting the results, thus
causing chaos in the country.
With a much clearer and
transparent electoral system,
it will be difficult for the
country to turn into turmoil
during this crucial period,
as media independence can
only thrive when there is
democracy.
3.2. Security personnel
should be enlightened
on how to handle the
demonstrators
The state machinery,
especially the security
personnel should also be
trained on how to handle
the crowd, especially during
the demonstrations. In most
cases, the security personnel
have been reported to have
used excessive force to quell
the rowdy mobs, actions that
have always left behind many
casualties, among them the
members of the press.
There is thus the need
for the media's role in a
democratic society and the
significance of respecting
journalists' rights to be taught
to security forces, including
the police and military, by
the government. Politicians
should also be enlightened
on how to address their
grievances without
necessarily causing chaos in
the country in the name of
www.theplatformmagazine.co.ke

A police officer aims his gun at a car that carried journalists during protests
called by Kenya’s opposition leader Raila Odinga on 30 March, 2023 as a man
believed to be a plainclothes policeofficer lobs a tear gas canister into the vehicle.
Photo | Raphael Njoroge | NMG
enjoying their constitutional
right to demonstrate. They
should carry out their
demonstrations peacefully
and unarmed36 without
neccesarily causing chaos,
which might provoke the state
apparatus to react rapidly
with excessive force, which
does not only cause harm
to the demonstrators but
also to the members of the
press who are covering the
demonstrations.
3.3 Creation of a safe
journalistic working
environment by the
government
There is a need for the
government to create a safe
working environment for
journalists. The government
is thus mandated to protect
the media and offer them
an ample environment to
carry out their journalistic
activities. .There is a need to
beef up security, especially
around the areas where
media houses are stationed
as well as in the general
public where the journalist
might be carrying out their
duties, for instance in political
rallies. Lack of security has
led to several attacks on
media personalities, as the
most recent case being
reported where thieves
broke into one of the radio
stations, ransacked the
station and walked away
with several valuables as
well as threatening the
presenters37 the government
is thus required to fully
provide security to enhance
the efficient operation
of the media activities in
the country. Kenya should
thus fully comply with the
regional provisions that call
for the member states to
take effective measures to
prevent attacks on the media
fraternity and, when they do
occur, to investigate them,
to punish perpetrators, and
to ensure that victims have
access to effective remedies.38
The state ought to guarantee
that current regulations and
guidelines that safeguard the
freedom of expression are
upheld. This includes laws
protecting journalists, access
to information, and freedom
of speech. Despite being
constitutional portions, access
to information,39 freedom of
expression,40 and freedom of
media41 have never been fully
expressed in the country. The
government in most cases has
violated these provisions. The
government is thus required
to uphold the Constitution
and enable the journalists to
carry out their work without
intimidation or attack from
the state machinery.
Swift and rapid response
towards investigating the
violations against the media

36
Article 37 CoK 2010
37
Daring robbery at Nakuru radio station streamed live on Facebook » Capital News (capitalfm.co.ke) Accessed 12/05/2023
38
Section XI(2) Declaration of Principles on Freedom of Expression in Africa
39
Article 35 CoK 2010
40
Article 33 CoK 2010
41
Article 34 CoK 2010

www.theplatformmagazine.co.ke SEPTEMBER 2023 45

The late William Munuhe
fraternity is another key
recommendation that needs
to be adopted to enhance
media independence in the
country. There have been
reported cases of mysterious
disappearances of journalists,
assassinations, and apparent
and deliberate physical
attacks on journalists in the
country. For instance, the
recent case of the deliberate
assassination of a foreign
journalist in the country.
Despite the call for a fair
and transparent inquiry into
the journalist's mysterious
assassination, nothing
tangible has been made as no
one has been convicted for his
murder. Notable journalists
have also been murdered in
the country, and no action is
taken; they always die with
their legacies, and the state
42
7 Kenyan Journalists Who Were Killed on the Job - Owaahh Accessed 12/05/2023
43
William Munuhe’s kin still seeking justice for Kabuga-linked killing | Nation Accessed 12/05/2023
44
Deyda Hydara Jr. and Others v. The Gambia ECW/CCJ/APP/30/11
46 SEPTEMBER 2023
Félicien Kabuga, an alleged financier of the 1994 Genocide against the Tutsi
during a hearing in Hague.
has failed to form any inquiry
or investigate the increase in
cases of attack on the media.42
An investigative journalist
like William Munuhe, who
was trailing the prime suspect
in the Rwandan Genocide,
was killed on January 14,
2003, the day he was
supposed to meet Kabuga.
His decomposing body was
discovered by detectives in
the bedroom of his house.
Sad to note is the fact that
20 years since his death, the
family has yet to get justice
as no attempt has been made
to conduct any meaningful
investigations into the murder
of the deceased.43
The failure of the government
to conduct an investigation
surrounding the mysterious
murder of journalists was
addressed in the case of
Deyda Hydara Jr. and Others
v. The Gambia44 where the
applicants, the deceased's
kin, sued the Gambian
government for failing to
effectively investigate the
murder of Deyda Hydara
as the state is required
to conduct a thorough,
rigorous, and independent
investigation into the violent
death of the deceased. They
also argued that The State
contributed to Mr. Deyda
Hydara's death by tolerating
and causing a climate of
impunity in the country as a
result of its systematic failure
to condemn, effectively
investigate, and secure
www.theplatformmagazine.co.ke
conviction. The Community
Court of Justice, ECOWAS,
held in its judgment that:

A state will be neglecting its

obligation under international
law and treaties if it does
not carry out effective
investigations into crimes
committed in its territory. A
state will also be in breach of
international law and treaty
obligations if it fails to protect
media practitioners, including
those critical of the regime.
For freedom of expression
also includes the freedom to
criticize the government and
its functionaries, subject to
limitations imposed by the
domestic laws. Article 2(3) (a)
of [the] International Covenant
on Civil and Political Rights
is equally applicable to the
defendant to ensure effective
investigations into the murder."
The government is thus
required to always take up
the role of investigating all
the crimes that have been
committed against the media
fraternity and come up with
possible solutions for curbing
such crimes as well as heavily
fining the criminals and having
them face the law.
3.4. Promotion of media
professionalism and
media ethics
Additionally, media ethics
and professionalism need
to be fully implemented in
the media industry. In recent
Media professionals are expected to ensure the accuracy of their reporting by
thoroughly fact-checking information before publishing or broadcasting it.
Accuracy is crucial to maintaining the trust of the audience.
cases, radio stations, have of news sources contrary to
hired media personalities section 9 of Global Charter
who ironically didn't attend of Ethics for Journalists that
any journalism courses. Most provides for;
of their appointments are
based on how popular and Journalists shall ensure that the
influential you are. Journalism dissemination of information
is a noble profession that or opinion does not contribute
needs seriousness and to hatred or prejudice and
professionalism. Sadly, the shall do their utmost to avoid
new recruits in the industry facilitating the spread of
have had some negative discrimination on grounds such
impact on the industry as geographical, social or ethnic
as it can lead to a lack of origin, race, gender, sexual
journalistic standards and orientation, language, religion,
ethics: It is possible that disability, political, and other
non-professionals lack opinions.45
the necessary education
and comprehension of The absence of
journalistic standards and professionalism and media
ethics. This can prompt ethics in the industry can also
one-sided announcing, cause bias and manipulation
deception, and the spread of by politicians, especially the
reports, compromising the state. A journalist's lack of
believability and respectability expertise can be exploited

Section 9 of Global Charter of Ethics for Journalists.

45

www.theplatformmagazine.co.ke SEPTEMBER 2023 47

by political actors to advance
their own agendas, resulting
in biased reporting and
compromised journalistic
independence as they might
be intimidated, and coerced
to make announcements that
only favor the politicians
and not freely criticize them,
contrary to section 13 of the
Global Charter of Ethics for
Journalists that provided for
in verbatim;

The journalist shall not use

the freedom of the press to
serve any other interest and
shall refrain from receiving
any unfair advantage or
personal gain because of
the dissemination or non-
dissemination of information.
He or she will avoid or put an
end to any situation that could
lead him or her to a conflict of
interest in the exercise of his or
her profession. He or she will
avoid any confusion between
his activities and those of
advertising or propaganda. He
or she will refrain from any form
of insider trading or market
manipulation.46
There is also the possibility
of the non-professionals
lacking the resources or
skills necessary for in-depth
investigative journalism.
This could make it harder
for the media to expose
corruption, hold those in
power accountable, and
give the public important
information on things that
are important to the general
public. There is also the
possibility of deterioration
in media organizations, as
the media organizations'
institutional strength may
be undermined if they hire
non-professionals to work
for them. Working alongside
non-professional journalists
may be challenging for trained
professional journalists,
resulting in a decline in
editorial integrity and quality.
Furthermore, it beats logic
for the professionals to work
under "non-professionals,"
thus causing havoc in the
workplace. For instance,
professional journalists feel
unappreciated despite their
skills, causing some of them
to go through mental anguish
and torture in their workplace.
The media industry should
thus strictly align its
employment and recruitment
based on professionalism and
merits and not on the basis
of how influential one is in
society.
3.5 Collaboration between
the media fraternity and
the state to harmonize
media independence in
the country
Lastly, a collaboration
between the state and

Section 13 of Global Charter of Ethics for Journalists.

46

48 SEPTEMBER 2023 www.theplatformmagazine.co.ke

the media fraternity can
be employed to enhance
the media industry in the
country and bring an end
to the surging attacks on
the media industry in the
country. There is a need for
the two parties to embrace
dialogue and participation
by establishing regular
means of communication
and having productive
discussions geared towards
assisting in resolving issues,
fostering a sense of mutual
respect for the significance
of media independence, and
fostering trust. The public
authority and media industry
should also jointly launch
public awareness campaigns
to educate citizens on the
importance of free and
independent media. These
campaigns can highlight
the role of journalists in
democracy, the dangers
they face, and the impact of
attacks on media freedom.
There is also a need for
adequate financing from
the state to finance the
training and capacity building
of the media fraternity.
It has been observed
that through relevant
academic and vocational
education, governments
can help foster the skills
necessary for a strong
media, such as creativity and
entrepreneurship, as well
as the significance of ethics
and fact-checking, as well as
preparing projects, studios,
A strong relationship between media and government is vital (thenationalnews.com) Accessed 15/05/2023
47
www.theplatformmagazine.co.ke
and courses pointed toward
upgrading columnists' abilities
in regions like moral detailing,
wellbeing and security, and
legitimate mindfulness. This
empowers advancement
inside the business, which
thus guarantees it has the
adaptability to develop
with changing patterns
and innovation as well as
assist writers with doing
their obligations really and
securely.47
The government should also
establish a redress mechanism
for journalists to report
attacks or violations of their
rights through collaboration
with the media industry. This
can be done by establishing a
specialized hotline, a separate
unit within law enforcement,
or an independent
commission to investigate and
address attacks on journalists.
There is also the need for the
government to recognize and
encourage self-regulation
within the industry, such as
recognition of the codes of
ethics, ombudsman offices,
and disciplinary committees
to enforce professional
standards and strengthen
the media industry's self-
regulatory mechanisms.
Additionally, legislation that
safeguards journalists' safety
and upholds media freedom
can be developed and enacted
in conjunction with the media
industry by the government.
This includes laws that make it
illegal to attack journalists and
protect freedom of speech
and information access.
4.0 Conclusion
With the increased attacks
on the media and recent
cases of corruption in the
country, safeguarding media
freedom and ethics is critical
to promoting democracy,
good governance, and
sustainable development in
Kenya. The media plays a vital
role in informing the public,
promoting transparency and
accountability, and facilitating
citizen participation in the
democratic process. However,
recent attacks on journalists
and threats to media
independence have raised
concerns about the future of
the media industry in Kenya.
To ensure a more vibrant and
independent media industry
in Kenya, urgent policy
recommendations are needed.
The government, media
industry, civil society, and the
international community must
work together to address
these challenges and promote
media freedom. Key policy
recommendations include
enacting laws that protect
media freedom and ensure
the safety of journalists,
strengthening self-regulatory
mechanisms and enforcing
professional standards,
providing training and
capacity-building programs
for journalists, establishing
mechanisms for redress,
SEPTEMBER 2023 49
Kenyan journalists and members of civil society marching on the World Press Freedom Day in 2018. Suleiman Mbatiah/
AFP via Getty Images
promoting public awareness
campaigns, and providing
support and protection for
journalists.
Safeguarding media freedom
and ethics is not only crucial
for promoting democracy
and good governance but is
also essential for sustainable
development in Kenya. A
vibrant and independent
media industry is necessary
for promoting transparency,
accountability, and citizen
participation in development
processes. It can also serve
as a watchdog, exposing
corruption, and promoting
responsible resource
management.
Furthermore, a free and
independent media industry
50 SEPTEMBER 2023
can contribute to economic
growth by providing a
platform for entrepreneurs,
promoting innovation,
and creating employment
opportunities. It can also
facilitate foreign investment
by providing reliable and
accurate information on the
country's economic prospects.
In conclusion, promoting
media independence and
safeguarding media freedom
and ethics is critical for
Kenya's future development.
The media industry has
a crucial role to play in
promoting democracy, good
governance, and sustainable
development. Urgent policy
recommendations are needed
to address the challenges
facing the media industry
and promote a more vibrant
and independent media
sector. By working together,
the government, media
industry, civil society, and
the international community
can create an enabling
environment that upholds
media freedom, ensures the
safety of journalists, and
fosters a free and vibrant
press in Kenya.
Francis Basis Maugo is a
second-year Law student at The
University of Nairobi. His research
interests include transformative
constitutionalism, sexual and
reproductive health rights and
advocacy for children’s rights. He
can be reached at:
maugofrancis@gmail.com
www.theplatformmagazine.co.ke
 Worldcoin or conned?
An insight into the illegitimacy
of Worldcoin in Kenya
By Victoria Titus
By Michael Omondi Odhiambo
Abstract
The Wordcoin project of the
OpenAI CEO, Sam Altman, blew
the minds of many Kenyans
young and old alike following
its glamorous incentives. The
new project offers a token
to new users in exchange for
their data and by scanning
their eyeballs. However, the
Kenyan government did not
receive the process lightly
raising issues of data privacy
and security. This article aims
at assessing the situation of
Worldcoin registration in Kenya,
discussing the legal implications
of the process raised by the
Kenyan Authorities such as the
Office of the Data Protection
Commissioner with an end goal
of giving an opinion on the
legitimacy of Worldcoin.
www.theplatformmagazine.co.ke
Worldcoin uses a metal orb to capture people’s biometric data.
Keywords: Worldcoin,
Data privacy and security,
Financial Incentive,
Legitimacy.
I. Introduction
Worldcoin was rolled out
in Kenya in the year 2021
and it began data collection
in Kenya in the same year.
Its founders used flowery
language in an attempt at
driving many people to
register for its services. It
was termed the new world
currency whose main aim and
principal goal was to make the
world’s first ID-compatible
wallet. Further, it has its own
unique ways of registration
and subsequent identification
of its subscribers.
Offering a token equal to
Kshs. 7000 for every new
user, Worldcoin seemed to
be a jackpot for many citizens
who are struggling day and
night to make ends meet. For
this reason, Kenyans flooded
to register by scanning their
eyeballs in exchange for
twenty-five free coins worth
about Kshs. 7000. Malls
became spaces for hunters
SEPTEMBER 2023 51
who opened their eyes widely
as they knew Worldcoin was
the savior to their empty
pockets. However, the
process drew the attention
of the Kenyan Government
whose response to the new
coin was on the negative side.
The Kenyan Government
through the Communications
Authority raised three main
concerns: How the biometric
data was stored, offering
money in exchange for data,
and having so much data in the
hands of a private company.
Worldcoin verifies you are human by scanning your iris.
In addition, the Ministry of
Interior Security launched an
investigation on Worldcoin Worldcoin project as well as data, Worldcoin opted for
calling on the security and reasons why most Kenyans scanning of the eye iris. The
data protection agency to are risking it all for the coin. only required thing is for
establish the authenticity and the subject to locate the
legality of the process. The II. Legal implications of the nearest Orb agent and get
anchor of the data privacy Worldcoin process: Data scanned. The reason given
and security concerns is privacy concerns for scanning the eyeball is
Article 31 of the Constitution the need to determine if the
of Kenya which provides for As mentioned earlier, the subject is a real person. The
the Right to Privacy1 and Data main data privacy concerns project has been met with
Protection Act2 which makes raised include how the numerous privacy concerns
provision for the regulation of biometric data was stored, as iris scans could be used to
the processing of paramount offering money in exchange create a universal ID system
data and provides for the for data, and having so much one of them being the issue of
rights of data subjects and data in the hands of a private data security. The Worldcoin
the obligations of data company. This section will project in response to the
controllers and processors. therefore discuss in depth concerns raised says that the
But is Worldcoin an issue of each of the concerns raised data from the iris scans will
concern? Should Kenyans above. be hidden with encryption
be worried? Are they being technology and the biometric
coined or conned? These very i. How biometric data information deleted.3 But
questions form the basis of was stored how safe are the Orbs? And
this paper which endeavours how safe is the user’s data?
to discuss the issues of Unlike other traditional In regard to the data security,
data privacy raised by the methods of collecting TenCrunch reported incidents

1
The Constitution of Kenya 2010, Article 31
2
No. 14 of 2019.
3
Ken Abuya, Worldcoin’s parent company is indeed registered as a data processor in Kenya, TechCabal, August 1, 2023.

52 SEPTEMBER 2023 www.theplatformmagazine.co.ke


The biggest attraction for many Kenyans who had their eyeballs scanned was
the free sign-up bonus of 25 Worldcoin tokens, currently worth around 7,000
Kenyan shillings
of hacking of devices of
Worldcoin operators who
manage the company’s
biometric devices.4 However,
Worldcoin through Jannick
Preiwisch, their spokesperson,
said that no data was revealed
during the attack and that the
Orbs operators are incapable
of accessing the personal data
stored in their devices making
the data security claims
weak.5
The thorny issue that leaves
us bothered then is what are
the reasons for collecting
so much data? Although
Worldcoin claims to be
registered as a data processor
by the Office of the Data
Protection Commissioner
(ODPC) under its parent
4
Willliam McCurdy, Worldcoin nears $ 100M funding round amid security concerns, Bio-metric Update.com, May 15, 2023.
6
Data Protection Act No. Of 2014, Section 19(2)(b).
7
Ibid at Section 26(a)&(b).
8
Annie Njanja, Worldcoin ignored initial order to stop iris scans in Kenya, records show, TechCrunch, August 15,2023.
www.theplatformmagazine.co.ke
company’s name, Tools
for Humanity GmbH, it is
evident that its operations
are different from those
of the parent’s company
hence it is in violation of
the criteria outlined in
the Data Protection Act
of 2019. According to
Section 19 of the 2019 Act,
data processors and data
controllers ought to provide
the data commissioner with
an application specifying or
describing the purpose for
which the personal data is to
be processed.6 This seems not
to be the case since the Data
Commission itself banned the
Orbs operation in Kenya as it
was unaware of why the data
is being collected and how it
was being stored.
Additionally, Section 26 on
the rights of data subjects
provides for the right to be
informed of the use to which
their personal data is put
and the right to access their
personal data in custody
of the data processor and
controller.7 Similarly, this
proves not to be the case with
Worldcoin following the letter
by ODPC which indicated that
Worldcoin failed to obtain
valid consent from people
before scanning their irises
hence violating the rights
of data subjects. Further, it
stated that Worldcoin’ agents
failed to inform its subjects
about the data security and
privacy measures in place
and how the collected data
would be used or processed
as provided for under Section
29 of the Act.8
ii. Offering money in
exchange for data; my
privacy or my stomach?
Following the status of the
cost of living, it is certain that
many people in Kenya can
hardly afford to pay their bills.
With the government piling
taxes now and then and the
citizens having no other way
of raising money to meet their
basic needs, it is only logical
to expect that they will be
desperate. Consequently,
in its attempt to gain huge
membership while at the
same time offering a short-
SEPTEMBER 2023 53
term solution to the poverty
that is being experienced
in the country, Worldcoin
offers free coins that can be
traded for cash. This article
views such a move as blatant
exploitation and taking
advantage of the poor.
The financial incentive
offered by Worldcoin acts
as bait that attracts citizens.
Some of the people that are
attracted by such offers are
gullible while some are just
driven to take such risks due
to poverty. To that extent,
therefore, the financial offer
by Worldcoin defeats the
goal of informed consent. As
a matter of fact, most people
care the least about what
is done to their data. What
matters most to them is the
money that they pocket at the
end of the day. Had Worldcoin
not offered free coins then
they would not have received
as many sign ups as they did.
Similarly, the Kenyan
Authorities have raised
concerns around this issue
arguing that Worldcoin is using
the incentives to lure citizens
into exchanging their data.
iii. On having so much
data in the hands of a
private company
Personal data is never safe
especially if it is being handled
by untrustworthy private
9
6 common data privacy issues (2023) DataGrail. Available at: https://www.datagrail.io/blog/data-privacy/data-privacy-issues/ (Accessed: 21
August 2023).
10
Ibid
11
Ibid
54 SEPTEMBER 2023
companies. There are a lot
of challenges that private
companies like Worldcoin
pose to private data. A case
in point is identity theft that
the government of Kenya has
been trying to fight for quite
some time now.9 Failure to
do all that it takes to ensure
that personal data is well
protected leads to rampant
impersonation. People with
ill motives, therefore, use
technological know-how and
hack personal data if the said
data is not well protected.
Such people proceed with
using the information that
they have gained to the
detriment of the owner of the
data. Hackers can thus borrow
loans from banks and other
financial corporations. In
addition, hackers at times do
not shy off from blackmailing
the subjects whose data
they have stolen.10 They take
advantage of the fact that
people at such desperate
times would cough huge sums
in order for their personal
data not to be leaked to
the general public. Further,
most people are tired of ads
from different advertising
companies. Target advertising
happens when private
companies sell personal data
to advertising companies.11
Conclusion
Worldcoin had an almost
perfect and unique idea of
collecting data. However, it
did not follow the necessary
steps that are currently
applicable in Kenyan laws.
As such, this method of
data collection was void ab
initio. Further, the usage
of financial incentives to
gain sign-ups by Worldcoin
is both questionable and
manipulative. Be that
as it may, efforts by the
government to come to
the rescue of the citizens
are laudable in as much as
the government failed to
stop Worldcoin when it
first pitched camp in Kenya.
Nonetheless, better late than
never. In conclusion, the
legislature should consider
coming up with certain laws
that will discourage the likes
of Worlcoin from collecting
personal data using financial
incentives.
Victoria Titus is a final-year student
of Law at the University of Nairobi
and a Writer. She can be reached via
victuz4535@gmail.com
Michael Omondi Odhiambo is a
legal researcher and a finalist law
student at the University of Nairobi.
Email: myllomosh@gmail.com
www.theplatformmagazine.co.ke
 Misplaced priorities?
Why Kenya's health crisis continues to hurt

By Deckstar Adaki

Introduction

For any society to experience

effective development of the
economic, social and political
infrastructure there must be
quality healthcare service to
its entire system. No country
can maintain steady economic
growth in the absence of an
adequate healthcare system
fastened on robust healthcare
infrastructure.1 The health
sector in Kenya therefore
plays a vital role economically,
socially and politically in
making the country realize
its dreams of Vision 2030.
A healthy nation comes
with it healthy, vibrant and
productive people. Accessing
the health care services
system is a fundamental right
for all people worldwide.2
According to the World
Health Organization (WHO),
Primary care serves as the first point of contact for individuals seeking medical
assistance. It includes general medical care, routine check-ups, and basic
treatments for common ailments.
health care embraces all the health care system in Kenya
goods and services designed is immersed in the complex
to promote health, including issues of governance, dearth
“preventive, curative and of resources, including
palliative interventions, human and medical supplies,
whether directed to inadequate and decaying
individuals or to populations”. infrastructure, inequity in
WHO has further defined the resource distribution and
obstruction of the availability, access to care, corruption4
access and delivery of and very deplorable quality of
therapeutic and/or preventive care, which are significantly
health services as a form of impacting on the delivery of
health attack.3 health services to Kenya.5
The reforms and changes
Various studies have crafted to address health
consistently shown that the challenges in Kenya seem

1
Andra Le Roux-Kemp, ‘The recognition of health rights in constitutions on the African continent: a systematic review’, 24(1) AfricanJournal of
International and Comparative Law (2016), pp. 1156–71.
2
Article 25, Universal Declaration of Human Rights (UDHR), GA Res, 217A (III), UN Doc, A/810 at 71 (1948).
3
WHO: Stopping Attacks on Health care, https://www.who.int/activities/stopping-attacks-on-health-care accessed on 13 July 2023.
4
Kariuki, P., 2014, Corruption Devolved to the Counties, Daily Nation, 4 April, Nairobi.
5
Wamai, RG. (2009). “The health system in Kenya: Analysis of the situation and enduring challenges.” JMAJ. 52(2): Table 2, 136.

www.theplatformmagazine.co.ke SEPTEMBER 2023 55

not to have made a positive
effect on the health care
system. However, whilst other
countries, both rich and poor,
are looking for ways of doing
more with existing resources,
for example Cuba, Kenya is
doing less with the existing
resources. That is to say that
most of these problems are
brought upon the country as
a result of its ignorance of
the pertinence of health care
system to Kenya's economy.6
On present trends, the health-
related goals are the least
likely to be met, despite the
Specialty care focuses on specific medical conditions or areas of expertise.
availability of well-crafted Examples include cardiology, oncology, orthopedics and neurology.
health laws and regulations;
powerful drugs and vaccines;
an increasing national budget Sciences declared vacancies Since the country is failing
expenditure; a large number for qualified Kenyan nurses in achieving health-related
of health professionals and midwives for employment goals, and there appears
graduating each year; several in the Kingdom of Saudi to be no one in the ruling
health financing reforms Arabia. As much as this move authority who cares, there is
with a view to achieving might seem noble, it's not a need for citizens to work
universal coverage of health sustainable considering our persistently and cooperatively
insurance; and other tools healthcare system is still in a to come up with solutions.
to support their attainment. state of crisis. The reality is After all, power belongs to the
Kenya has never possessed straightforward. The power people.7 Therefore, this article
such a sophisticated arsenal of existing interventions and questions why the Kenyan
of interventions and resources opportunities is not matched healthcare system is still
for curing diseases and by the power of health devastatingly weak despite
prolonging lives. Yet the gaps systems to deliver them to the country possessing a
in health outcomes continue those in greatest need, in a sophisticated arsenal of
to widen. Much of the ill comprehensive way, and on interventions and resources
health, disease, premature an adequate scale. Why is this for curing diseases and
death, and suffering we so? Is inflation the cause? Or prolonging lives. It addresses
see on such a large scale is is the Kenyan government just the urgent need to improve
needless, as effective and ignorant of its citizens' health the efficiency of health care
affordable interventions are needs? Or is false demand system in Kenya. It does so
available for prevention and being created for unnecessary by identifying the challenges
treatment. Recently, the needs in the health care brought upon the country
Ministry of Labour and Social system? itself and proffers the possible

6
Magokha, T., 2015, ‘Blame Game as Kenya’s Health Crisis Hurts’,Standard, Nairobi, http://www.standardmedia.co.ke/kenyaat50/
article/2000174647/blame-game-askenya-s-health-crisis-hurts?pageNo=2, accessed 12 July 2023.
7
Article 1, Constitution of Kenya 2010.

56 SEPTEMBER 2023 www.theplatformmagazine.co.ke

way forward as a country.
The main aim is to examine
strategies for strengthening
the health system in Kenya.
This is because successful
development of the Kenyan
health system is worthwhile
in its own right, and it may
be a relatively cost-effective
way to help demonstrate
the tangible fruits of our
independence.
Key factors affecting
the transition toward a
successful healthcare
system
A “successful” Kenyan
healthcare system should,
at a minimum; maintain an
8
What is a Good Health System? https://www.realizingglobalhealth.com/what-is-a-good-health-system/ accessed on 7 July 2023.
9
Ibid.
10
See the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 12(1) which compels state parties to recognize the
right to health. In addition, the Convention on the Rights of the Child (CRC) and the African Charter on Human and Peoples' Rights also recognize
the same.
www.theplatformmagazine.co.ke
effective and well-regulated
public health system;
provide reasonable access
to high-quality preventive
and curative services for all
Kenyans; provide efficient
universal coverage of health
insurance for every Kenyan;
maintain high-quality
programs for training health
professionals; achieve health
outcomes at the population
level that meet or exceed
international guidelines, such
as those recommended by the
World Health Organization
(WHO); and be effective,
efficient, and financially
viable.8 In general economic
terminology, "successful"
means the absence of waste,
or using the resources as
effectively as possible to
satisfy people’s needs and
desires. "Successful" carries
varied connotations in
health care depending upon
the context in which it is
employed.9
The right to have successful
healthcare is one of the most
widely recognized human
rights and it's dedicated in
major international laws and
conventions as a 'fundamental
human right'.10 No individual
should be denied access to
healthcare services in his/her
country, or to get arbitrarily
denied leaving their country
to get healthcare abroad.
SEPTEMBER 2023 57
There are many ways to
achieve this broad right,
ranging from incremental
reform to radical redesign.
Since independence in 1963,
the Kenyan government has
recognized good health for
all citizens as a fundamental
right.11 The government’s
main objectives for the
development of health
services have been to
strengthen and carry out
measures for the prevention,
eradication and control of
diseases, and to provide
adequate and effective
diagnostic, therapeutic and
rehabilitative services for
the whole population.12 Preventive care involves measures taken to prevent illness or diseases before
they occur. Examples include vaccinations, regular check-ups, screenings, and
The health sector of health education.
the Kenyan economy is
Constitutionally established
to provide essentially health rights.14 Article 21 obliges the State shall put in place
care services to Kenyans the State to take measures affirmative action designed
irrespective of their locations to achieve the progressive to ensure that minorities
within the territorial realization of the rights and marginalized groups
jurisdiction of Kenya.13 The guaranteed under Article have reasonable access to
2010 constitution provides 43.15 Article 43 provides that water, health services and
a legal framework that Kenyans are entitled to the infrastructure.18
guarantees an all-inclusive highest attainable standards
rights-based approach to of health, which includes the So, the health care delivery
health service delivery right to healthcare services services in Kenya, as well as
to Kenyans. Article 43 of including reproductive health the Kenya Health Policy,19 aim
the Constitution, read in care.16 In addition, Article 53 at addressing the provision
conjunction with Article 20(5) provides for the right of every of intensive, effective and
of the Constitution provides child to basic nutrition, shelter efficient health care services
for the progressive realization and healthcare.17 In Article 56, to the people of Kenya
of social and economic the Constitution provides that in order to allow them to

11
Kibui et al., 2015, ‘Health Policies in Kenya and the New Constitution for Vision 2030’, International Journal of Scientific Research and Innovative
Technology 2(1):127.
12
Government of Kenya, 2013, Kenya Health Policy 2012-2030, Nairobi: Ministry of Medical Services and Ministry of Public Health and
Sanitation.
13
Article 43, Constitution of Kenya.
14
Constitution of Kenya 2010.
15
Ibid.
16
Ibid.
17
Article 53, Constitution of Kenya.
18
Article 56, Constitution of Kenya, 2010.
19
2014-2030

58 SEPTEMBER 2023 www.theplatformmagazine.co.ke

achieve laudable goals of
health standard such that
everyone will enjoy life at all
levels of human endeavor.
As aforementioned, the
concept of health is still
with multifarious problems/
challenges in Kenya and to
this end, I will identify some
of the major problems and
challenges militating against
the Kenyan contemporary
health sector performance.20
I will also highlight the
solutions and offer prospects
of Kenya's health care delivery
services in the short and
long run. As health systems
are highly context-specific,
there is no single set of
best practices that can be
put forward as a model for
20
Mwangi, C., 2013, ‘Accessibility to the Kenyan Healthcare System: Barriers to Accessing Proper Healthcare’, unpublished PhD thesis, Arcada
University.
21
Ibid.
22
Abuja Declaration 2001.
23
Ibid.
24
Commission on Revenue Allocation, 2014, Revenue Allocation Formula, http//www.crakenya.org/information /revenue-allocation-formula/,
accessed 10 July 2023.
www.theplatformmagazine.co.ke
improved performance.
But health systems that
function well have certain
shared characteristics. They
have procurement and
distribution systems that
deliver interventions to those
in need. They are staffed with
sufficient health workers
having the right skills and
motivation. And they operate
with financing systems that
are sustainable, inclusive, and
fair. The costs of health care
should not force impoverished
households even deeper into
poverty.21
Kenya is a signatory to the
Abuja Declaration22 according
to which African countries
are committed to investing
15 percent of the national
budget in health.23 However,
there's a shortfall in total
expenditure in the health
docket as a percentage of
the national budget when
compared to international
standards/benchmarks.
Gross underfunding is a
serious social cankerworm
devouring the fabric of
Kenyan health institutions.
By implication, the fund is
not adequately budgeted
for and released, timeously
to the health institutions,
the life-saving organizations
for that matter. This gross
underfunding of the health
sector has been an issue for
years.24 The public budget
shows that the State’s priority
SEPTEMBER 2023 59
is not, in fact, the fulfillment
of its legal and political
obligations to its citizens or
the international community,
as decreed by the Kenyan
Constitution and international
human rights treaties. On
15th June 2023, the Cabinet
Secretary, in charge of the
National Treasury, Professor
Njuguna Ndung’u presented
the budget statement to
the Speaker of the National
Assembly themed “Bottom-Up
Economic Transformation and
Climate Change Mitigation
/Adaptation for Improved
Livelihoods of Kenyans”. The
total expenditure in the FY
2023/24 is Ksh 3.7 trillion
equivalent to 22.6 percent of
GDP. This comprises recurrent
expenditures amounting to
Ksh 2.5 trillion (15.6 percent
of GDP) and development
expenditures of Ksh 713.3
billion (4.4 percent of GDP).
Equitable share to County
Governments is projected at
Ksh 385.4 billion. But only 3.8
percent of the total national
budget has been allocated
to health. Out of the KES.
2.3 trillion allocated to the
national government, only
KES. 141. 2 billion of it is
allocated to health. However,
there's a significant increase
allocated to the security
agencies from the previous
financial year's allocation of
KES. 177.8 billion to KES.
338.2 billion. That is a 52.5
percent increase. This has
25
Egyptian Initiative for Personal Rights (EIPR) and Mohamed Ali Jinnah, "Challenges Facing Health Expenditure in Egypt, Report on the
proceedings of a roundtable discussion Health and Human Rights Program, Egyptian Initiative for Personal Rights, September 2009
26
(2012)eKLR.
60 SEPTEMBER 2023
been one of the government’s
major priorities when
allocating public spending.
Health wasn't given such
much priority. In fact, the
expenditure was reduced
from the previous financial
year's allocation of KES. 146
billion to KES. 141 billion for
this financial year. That's a 3.4
percent decrease whilst the
security agencies get a 52.5
percent increase. Is this a case
of misplaced priorities?
Arising from the gross
underfunding of the health
sector institutions is the
weak infrastructure and
logistic supports which are
weak, obsolete and defective.
This is due to inadequate
maintenance of buildings,
medical equipment and
vehicles, shortage of drugs,
faulty compounding of drugs,
poor management of drugs,
the expiry of drugs and
vaccines and other essential
requirements for patient care.
This has resulted in health
outcomes being unacceptably
low, and the persistence of
deep inequities in health
status is thus not exempted in
Kenya. Much of the burden of
disease can be prevented or
cured with known, affordable
technologies. The problem
is getting drugs, vaccines,
information, and other
forms of prevention, care or
treatment, on time, reliably,
in sufficient quantity and at
Cabinet Secretary of National Treasury
and Economic Planning Prof. Njuguna
Ndung’u.
reasonable cost, to those
who need them. In Kenya, the
systems needed to do this are
on the point of collapse, or are
accessible only to particular
groups in the population.
Failing or inadequate health
systems are therefore one of
the main obstacles to scaling-
up interventions to make
achievement of internationally
agreed goals. This begs the
questions:
How can recurrent
expenditure be put to
better use? On what basis
should Kenyans ground their
demands for increased public
expenditure in the health
sector? Where are the gaps
that lead to waste recurrent
expenditure?25 In P.A.O
and 2 Others v The Attorney
General,26 Kenyan court
www.theplatformmagazine.co.ke

held that, the fundamental
right to life, human dignity
and health as protected and
envisaged by Articles 26(1),
28 and 43(1) of the 2010
Constitution encompasses
access to affordable and
essential drugs and medicines
including generic drugs and
any legislation that tries to
limit these rights will not
suffice.27 The right to health is
not something that should be
trammeled anyhow.
Further, despite the desire by
the government to ensure a
more equitable distribution of
resources, glaring disparities
are still evident. The
deterioration in government
facilities, low salaries and
poor working conditions had
resulted in a mass exodus of
health professionals. It is sad
that Kenya and indeed Africa
(2012)eKLR.
27
www.theplatformmagazine.co.ke
are losing their experienced
health workers to developed
countries as a result of
neglect of their health sectors
and particularly in Kenya.
Mismanagement of resources,
lack of priority, lack of respect
for human lives by our leaders,
low wages, poor motivation,
persistent shortages of
basic medical supplies, poor
working conditions, outdated
equipment, lack of efficient
and effective coordination,
limited career opportunities
and above all, economic
reasons are among the most
important factors responsible
for this brain drain. The health
professionals in Kenya are yet
to be adequately remunerated
like their counterparts in
other advanced countries of
the world. The consequential
effects of poor motivation are
facile. Such effects include
frustration, poor service
delivery, psychological
warfare at work, industrial
strikes and brain drain, just
to mention few absurdities
arising from poor motivation.
There has also been too much
concentration of medical
personnel at the urban to the
neglect of the rural areas.
Moreover, the Ministry of
Labour and Social Sciences
recently declared vacancies
for qualified Kenyan nurses
and midwives for employment
in the Kingdom of Saudi
Arabia. As much as this
move might seem noble, it's
not sustainable considering
our health care system is
still in a state of crisis. The
government should look
for ways to absorb these
nurses and midwives into our
health care system, which as
evidence show has a shortage
of human resource, instead of
egotistically contributing to
brain drain at the expense of
Kenyans who are in dire need
of their services.
Moreover, like many other
low-income and transitional
countries, Kenya is in the
process of implementing
health financing reform with
a view to achieve universal
coverage of health insurance
within the coming years. But
this also has been blighted
by rampant corruption in the
health care docket. Policy
implementation, monitoring
and evaluation in the health
sector is a challenge in a
SEPTEMBER 2023 61
country where corruption has
gone deep, tearing the fabrics
of the society.28 Corruption
in health sector has gone
far in such a way that it has
been normalized.29 Another
example of corruption and
ethical indecency is diversion
of patients to privately
owned hospital by a public
hospital doctor or pharmacist
or nurse. This is unethical
behaviour. Corruption
features nearly everywhere in
Kenya, and it is a social virus
which has almost destroyed
efficiency, effectiveness and
performance or organisations
providing service delivery is in alignment with the is found guilty. Such action/
in Kenya. However, one anticorruption crusade. attitude is also incompatible
advantage the health sector Paradoxically, most of the with their professional ethical
has is that each of the team rules of professional conduct codes.30
has ethical oath if it ethically are at times blatantly violated
complies with e.g. Physician by some health workers for At the county levels,
Oaths (Hippocratic Oath); one personal reason or the challenges of devolution
Code of Ethics for Nursing other. In the same vein, some as depicted in the media
Profession; Pharmacist nurses in the antenatal and have emerged in the form of
Oath etc. The Declaration labour wards in some hospitals poor management, resource
of Geneva (Physicians Oath have been notorious for being distribution, ethnicity fears,
Declaration) adopted by the rude to patients and are said poor working conditions
General Assembly of the to have been in the culture and delayed salaries, among
World Medical Association of abusing pregnant women other factors. Reports of
at Geneva, Switzerland, at the crucial stage of labour health workers resigning due
September 1948 and pain when they seriously to these issues have been
amended by 22nd World need their care. This is also a rampant and so are strikes
Medical Assembly, Sydney, very serious challenge in the and strike threats. There
Australia, August 1968, is obstetric department and in has also been a massive
antithetic to corruption if hospitals in general. This type exodus of staff from other
complied with and respect of behaviour is tantamount to communities from the area
strict senso. Again, like battery and assault in the law where they were initially
the Doctors' Hippocratic of medicine and is actionable stationed before devolution.31
Oath, the Nurses pledge and punishable if the culprit This out-migration has

28
Macintyre, K (1999). Hotchkiss DR. Referral revisited: community financing schemes and emergency transport in rural Africa. Social Science and
Medicine 1999;49(11):1473_/87.
29
Kariuki, P., 2014, Corruption Devolved to the Counties, Daily Nation, 4 April, Nairobi.
30
Kinuthia, M., 2016, Challenges Facing Devolution in Kenya Nairobi: Kenyatta University..
31
Kenneth, Okwaroh. (2013). Devolution: Challenges and opportunities for Kenya’s health sector. Development Initiatives- African Hub.

62 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 How then can Kenya cross
the quality chasm in its
health care system?

Regarding public health

been partly supported
by ethnic fears, general
desertion of the health
sector by professions due
to frustrations experienced
since devolution as well as
subtle political statements
made by leaders in the area
to the effect that they were
discouraging outsiders from
employment in the county.
Moreover, challenges in
resource distribution have
been witnessed whereby the
allocation of funds to counties
is inconsistent. This has led
to stalling of functions at the
county level, further creating
inefficiencies. The lack of
strong institutions at the
county level means that there
is no effective communication
and follow-up between the
two levels of government to
speed up the disbursements,
and therefore facilities are
left on their own to follow up
with the national government,
which is a rather challenging
task, given their physical,
social and capacity distances
from the national Ministry
of Health in Nairobi.32 The
delay in funds disbursement
is also experienced at the
county level where allocations
from the national Ministry
of Finance are often delayed
leading to delays downstream
with such results as frequent
strikes over salaries by health
personnel, lack of drugs
and other basic necessities
at health facilities and,
ultimately, desertion of the
health sector by qualified
staff due to the arising
frustrations.33
spending, there are two
major objectives that must
be addressed if we are
to evaluate public health
spending in Kenya: First,
how do we facilitate citizen
access to the basic basket of
health services? And secondly,
how do we guarantee health
protection for the poor
and spread health services
across society, throughout
the villages? The ideal level
of public health spending
depends on the level of social
development.34 We should
not address this issue in terms
of the budget deficit or the
relationship between health
spending and the deficit but
in terms of the relationship
between health expenditure
and prevailing socioeconomic
conditions.35 Budget deficits
can be discussed elsewhere,
but when dealing with
health expenditure, the issue
is: How appropriate are
spending levels to the nature
of existing health problems
and the structure of health
expenditure itself? Health
expenditure might be high,
but at the same time, the
structure of spending might
not be conducive to efficient
health expenditure. There are

32
Center for Health Solutions in Kenya, 2013, CHS Forum on Health System Strengthening in the Devolved System of Government, https://www.
chskenya.org/wp-content/uploads/2014/04/chs-forum-on-hss-in-devolution-report.pdf, accessed 7 July 2023.
33
Ibid.
34
Collins, D., Quick, JD., Musau, SN., Kraushaar, D. & Hussein, IM.(1996). The fall and rise of cost sharing in Kenya: the impact of phased
implementation. Health Policy and Planning 1996;11(1):52_/63.
35
Egyptian Initiative for Personal Rights (EIPR) and Mohamed Ali Jinnah, "Challenges Facing Health Expenditure in Egypt, Report on the proceedings of
a roundtable discussion Health and Human Rights Program, Egyptian Initiative for Personal Rights, September 2009

www.theplatformmagazine.co.ke SEPTEMBER 2023 63

several questions that can be
raised here:36 What standards
and criteria are used when
we discuss government
expenditure on health?
How can this expenditure
be funded? What are the
impacts of government
investment programs in
the field of health? Which
segments of society will
benefit from government
spending programs in the
health sector? Finally, how
can we better allocate
public health expenditure in
general?37 It is not the case
that more public spending on
health automatically means
a healthier society. On the
ground, the services provided
might be less efficient or of
substandard quality, meaning
that there is a substantial
waste of resources. The
key here is the structure,
development and nature of
spending. When we look at
the development of public
health expenditure in Kenya,
we find that the most recent
national budget, FY 2023/24,
allocated KES 141.2 billion
to health in total public
spending. Total spending on
health came to only 3.8% of
total public spending in FY
2023/24 budget.
If we examine this number,
KES. 141.2 billion, we will
find that most of it will go
to pay salaries. Salaries
Health spending is a critical indicator of a country's commitment to the well-
being of its population.
and wages are the single
largest subset of health
expenditure, accounting for
more than 50% of all health
spending. Although this
percentage could suggest
that the wages of health-
sector workers are high,
in fact, they are not. Thus,
there are two problems here:
the high level of spending
on wages as an element of
public health spending, and
the insufficiency of wages
to guarantee a dignified life
for health-sector workers,
which has a negative impact
on government performance.
In the health sector, we find
a high rate of absenteeism
in health units, particularly
in rural and peripheral areas;
we also find that health-
sector workers hold down
more than one job at a time
to make a decent income.38
There are many other
problems as well in rural
health units, all of which,
in my opinion, are largely
attributable to low incomes.
Since most public spending
goes to wages; as a result,
preventive medical services,
curative services and other
matters that shape health
policy are unable to achieve
health policy objectives in
accordance with social public
spending and budget analysis.
The basic issue here can be
summarized in two points:
First, how can we achieve
effective public spending?
In other words, how can
this KES. 141.2 billion be
used to benefit the greatest
number of Kenyans? Public
expenditure must be allocated
in accordance with targeted

36
Ibid.
37
The World Bank. (1996). Health Policy in Eastern Africa: A Structured Approach to Resource Allocation, Washington DC.
38
Egyptian Initiative for Personal Rights (EIPR) and Mohamed Ali Jinnah, "Challenges Facing Health Expenditure in Egypt, Report on the proceedings of
a roundtable discussion Health and Human Rights Program, Egyptian Initiative for Personal Rights, September 2009.

64 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 Adequate health spending is essential
for maintaining a functioning healthcare
system that can provide timely and quality
care to individuals. Insufficient health
spending can lead to issues such as limited
access to care, inadequate facilities, and
disparities in healthcare delivery.

objectives; and secondly, exercise pressure on the budget, FY 2023/24, we see

how can public health
expenditure be increased in
the State budget to become
a priority? Of course, this is
linked with the more general
question of how the public
budget can be shaped by
society, and how they can
influence this process. We
have an advantage created
by the 2010 Constitutional
pronouncements, one of
which allows the legislative
authority, represented by the
National Assembly, to amend
the state budget in full.
This could be an important
tool for the public at large
if they become capable of
understanding the budget
and know exactly what they
want to change. When the
budget is up for discussion
in parliament, the public can
legislature, by addressing
parliament, by speaking in
parliamentary committees,
or through other channels.39
As such, the public can
restructure spending by
demanding specific changes
to certain sections and
redirect public spending to
achieve what it views as
necessary objectives. It can
exercise pressure in some
form or other in this field.40
Whereas an economist
looks at a budget through
the prism of public finance,
lawyers/political scientists
approach it as a political
document indicative of
changing circumstances, a
mirror that reflects existing
power balances in society.41
When we look at the Kenyan
a sharp increase in allocations
to the security agencies,
KES. 338.2 billion from the
previous KES. 177.8 billion.
The question is why has the
share for health has declined
in this year's budget? The
sectors that receive the
largest shares of the public
budget are, to a great extent,
the stronger political forces.
In short, the budget share
of any particular sector is
determined according to
two basic factors: the will of
the political leadership and
government, which depends
on how much the political
system stands to benefit
from a particular sector, and
the ability of a particular
sector to exert pressure
and extract the required
allocations.42 For example,

39
Article 10, Constitution of Kenya 2010.
40
Ibid.
41
See n. 38.

www.theplatformmagazine.co.ke SEPTEMBER 2023 65

if we look at increased
government spending on
the security agencies, it
is obvious to any lawyer/
political analyst that the army
is the strongest institution
in Kenya, along with other
security institutions. So,
when we see how low health
allocations in Kenya are, we
should ask about the political
influence of the group to
which these allocations are
directed. Of course, patients
are the primary beneficiaries
of health expenditure, in other
words, the entire population
benefits from an increase in
health expenditure, but the
‘population’ never acts as a
political lobby group.
Further, low-income
households are plagued by
financial risk, and health
shocks are often the most
important type of unexpected
event with respect to
financial distress.43 Insurance
solutions not only promise
to protect households from
a poverty trap but might
also improve their long-term
health and productivity.
Kenya is a country known
to have produced some of
the economic turn-around
blueprints in the world
but has lagged behind due
to poor implementations.
There are good health
sector policies the country
needs to implement fully
and rejuvenate or retrieve
others that are still lying
on the government shelves
without being implemented.
With the KES. 18.4 billion
allocated for Universal Health
Coverage, our country Kenya
has the potential in making
greater strides in the health
care system and reforms for
the good of her populace.
Greater integration is needed
to facilitate the delivery
of services, reduce out-of-
pocket spending on health
and improve monitoring and
data collection. This can only
be achieved with proper
implementation and curbing
corruption in the health
sector. Healthcare institutions
should therefore be managed
by competent and responsible
professionals. This is entirely
achievable if the well-being of
Kenyans is the driving force.
Moreover, it is also clear
that the process of change
needs to extend beyond
the redefinition of policy
objectives and discussions
of the ideological orientation
of the healthcare system.
Without institutional or
structural change, it is
unlikely that the existing
organizational structures and
management systems will
be able to strengthen the
weak and fragile healthcare
delivery system and improve
its performance.44 Health
sector reform will therefore
be concerned with defining
priorities, refining policies,
and reforming the institutions
through which those policies
are implemented, etc.45 From
the foregoing arguments
about how devolution is
currently playing out in
Kenya as well as lessons
from other countries that are
implementing devolution(for
example Thailand), a number
of key lessons towards making
devolution work can be
drawn. First, it is evident that
devolution is not an event
but a process whose ultimate
aim is better healthcare with
more meaningful access for
the majority of citizens in
Kenya.46 It is also clear that
healthcare will remain a
devolved function and will
not revert to the central
government as some political
actors are pushing for. This
is because for this to be
possible, a referendum is
needed which is both very
expensive to execute, and
with unpredictable results. It
is therefore not in the interest
of the political elite to push
for a referendum on the same.
Therefore, while time has to
be given to the instruments
of devolution to be nurtured,
it is important to ensure that
the requisite frameworks and

42
Ibid.
43
Gsaenger, H. (1994). Social Security and Poverty in Kenya: Developing Social Security Systems for Poverty Alleviation. Germany: Deutsches Institut
fur Entwicklungspolitik
44
Evans Mbicha, "Judicial Enforcement of the Right to Health Under the New Constitution of Kenya," A thesis submitted in partial fulfillment of the
requirement for Masters of Laws, University of Law, October 2014, p. 30-7.
45
Ibid.
46
Kenneth, Okwaroh. (2013). Devolution: Challenges and opportunities for Kenya’s health sector. Development Initiatives- African Hub.

66 SEPTEMBER 2023 www.theplatformmagazine.co.ke

institutions are in place.47
Failure in this respect presents
the risk of making wrong
investments in terms of time
and resources. In the end,
some people will be more
alienated from the system
than before devolution.48 The
changes envisaged should
provide both immediate and
long-term gains; in the short
term, they should foster trust
in devolution as a system,
and, in the long run, lead to
institutional strengthening of
the health system.49
Further, the situation where a
graduated medical doctor, as
an example will have to wait
around for years before being
absorbed into the health care
system is frustrating and
absurd. It is disheartening to
observe that after 60 years
of independence, the Kenyan
government is yet to develop
its human resources in the
health sector to meet or draw
close to WHO's template.50
Government should therefore
expand hospitals, medical
centers and health clinics
to absorb the newly trained
and inducted doctors,
pharmacists, etc., as it may
be a waste of funds, time and
human resources if health
professionals are trained
by the Kenyan government
only to be utilized by other
47
Ibid.
48
Ibid.
49
See n. 44.
50
Patrick, I., 2013, Relooking at Healthcare in Kenya in the Age of Devolution, University of KwaZulu-Natal.
51
Ibid.
52
Murray, C. & Frenk, J. A. (2000). Framework for assuring the performance of health systems. Bulletin of the World Health Organization
2000;78(6):717_/31.
53
Patrick, I., 2013, Relooking at Healthcare in Kenya in the Age of Devolution, University of KwaZulu-Natal.
www.theplatformmagazine.co.ke
countries (Brain Drain).
This situation calls for the
urgent attention of the
Kenyan government. More
importantly, both the national
and county governments
must bear in mind that
capital needs labour and vice
versa. Labour should not be
enslaved by the employer.
The relationship between the
two parties (employee and
employer) must be symbiotic
and harmonious in order to
achieve organizational set
goals of healthy citizens.
It should not be a master/
servant relationship at all.51
In spite of the other inherited
challenges/problems and
the new challenges of
today in Kenya, hope is
not lost in overhauling
the system to meet the
standard that citizens can
benefit from. However, to
build a sustainable, reliable,
accessible and standard health
sector, hospitals, medical
centres, health centres,
health posts, clinics and other
health institutions should
be brought to the required
standard of the World Health
Organization at both curative
and preventive levels of
health administration. These
institutions must also be
well equipped with modern
medical gadgets, structural
facilities and uninterrupted
electricity supply, portable
water, internet provision, and
good communication system
across all the wards, offices
and hospital environment.52
As life-saving institutions, it
is a trite fact and of course
irrefutable that hospitals
require service specialization
in various health fields such as
medicine, surgery, gynecology,
obstetrics, psychiatry,
pediatrics, cardiology, and
public health among others.
To this end, there is a need
for meticulous selection/
recruitment of hospital
staff. It is also necessary to
train and retrain the human
resources on the ground
for health technological
updating as knowledge gets
obsolete if not renewed.
Development is a continuous
phenomenon. The staff must
also be promoted when due,
motivated, and remunerated
accordingly. Health matters
should not be subjected
to political rhetorics and
bureaucratic rigmarole as
life has no duplicate. If the
identified challenges and
problems are sincerely
addressed as analysed in the
above discussion, the future
prospect of the Kenyan health
sector is prosperous.53
SEPTEMBER 2023 67

Conclusion
While the face of health care
is changing globally, we would
not continue to be satisfied
with what Kenya has at the
moment.54 Improved access
to health care for all will come
through; provision of a robust
health infrastructure network
countrywide, strengthening
existing health care policies,
improving the quality of
health service delivery
to the highest standards,
promotion of partnerships
with the private sector, and
providing access to those
excluded from health care for
Rutter, D., & Quine, L. (eds) (2002). Changing health behaviour. Open University Press, Buckingham
54
International Rescue Committee, 2015, Every Voice Counts Program Report, Nairobi: International Rescue Committee.
55
68 SEPTEMBER 2023
financial or other reasons. The
government of Kenya should
be determined to improve
access and equity to essential
healthcare services and to
ensure that the health sector
plays its essential role in the
realization of the Kenyan
Economic Recovery Strategy
for Wealth and Employment
Creation (ERSWEC).
The Kenyan health sector
can only be improved if
Kenya's statesmen are less
self-centred but much more
committed to health policy
formulation, implementation,
Healthcare is a critical aspect of
society, as it directly impacts the
well-being and quality of life of
individuals and communities.
monitoring and evaluation.
The public also needs to
roll up its sleeves and get to
work to bring the healthcare
system up to world-class
standards by holding its
leaders accountable and
questioning the budget
allocation, particularly the
health budget.55 It’s thus
imperative that Kenya uses
the same spirit and approach
for allaying criminals and
terrorists in dealing with the
health care system if the
country intends to meet the
Millennium Development
Goals (MDGs).
www.theplatformmagazine.co.ke
 The need for public defenders in
Kenya’s criminal justice system
“It is a denial of justice not to stretch out a helping hand to the fallen; that is
the common right of humanity.” ~ Seneca the Elder.

By Mohammed Abdullahi Hassan

Introduction

The Kenyan criminal justice

discourse has always been
mired by questions of
injustice, justiciability of rights
and rescindment of the rule of
law vis-a-vis equality before
the law. One of the key roles
of a well-functioning justice
system is the protection of
vulnerable groups within
a society. The justice
system should be tailored
in a manner that addresses
power imbalances and avails
access to justice for all. The
Kenyan Criminal Justice
system has implemented
little to address the power
imbalances and injustices that
arise due to lack of enough
legal awareness and legal
representation especially
in the indigent parts of the
society.
“Access to justice” is a broad
concept that has no easy and
concise definition. The term
“access to justice” has been
used in different ways in
different contexts. Generally,
the term has been used to
refer to opening up the formal
systems and structures of the
law to disadvantaged people
in society. This includes the
removal of barriers such as
legal and financial barriers,
as well as social barriers such
as language, inadequate
knowledge of legal rights and
intimidation by the law and
legal institutions.1
Inadequate knowledge of
legal rights and intimidation
by the law and legal
institutions has been one
of the colossal factors that
continue to impede vulnerable
people's access to criminal
justice. The Kenyan Criminal
Justice System continues to
receive indigent people who
have been accused of various
crimes every day without
giving them a chance to
combat these allegations. It is
fundamental to note that the
independence and discretion
of the Office Director of
Public Prosecution (ODPP)

Francis Kariuki, “Applicability of Traditional Dispute Resolution Mechanisms in Criminal Cases in Kenya: Case Study of Republic V Mohamed
1

Abdow Mohamed [2013] eKLR” (2014) 2(1) Alternative Dispute Resolution 210

www.theplatformmagazine.co.ke SEPTEMBER 2023 69

are important in the criminal
justice system. However, the
power imbalance it creates
when facing an indigent
layperson with no legal
knowledge and no legal
representation leaves the
layperson to the harshness of
the law.2

The creation and existence

of the Office of the Public
Defender alongside the office
of the prosecutor will be
paramount in the restoration
of confidence in the criminal
justice system and also
empower all vulnerable
people a chance to exercise
their rights3 as per Article 48
of the Constitution which
states that “The state shall
ensure access to justice for
all persons and, if any fee is
required, it shall be reasonable
and shall not impede access
to justice.”4
According to the Public
Defender’s Office of New
South Wales, “ Public
defenders are salaried
barristers independent of
the government who appear
in serious criminal matters
for clients who have been
granted legal aid”.5 Justice
Ketanji Brown Jackson of
the Supreme Court of the
United States, likened her
intent as a former public
Justice Ketanji Brown Jackson of the Supreme Court of the United States.
defender to the framers of
the US Constitution where
she declared: “In order to
guarantee liberty and justice
for all, the government has
to provide due process to
the individuals it accuses of
criminal behavior, including
the rights to a competent
legal counsel”.6
The Government of
Kenya should be lauded
for availing various legal
aid programs, such as the
National Legal Aid Program
(NALEAP). Nevertheless, it
is a program that has been
crippled since its initiation
by the administrative
bureaucracies of the office
of the Attorney General.7
Therefore it is necessary to
set up an institution that is
independent, integral and
competent in fostering access
to justice to all vulnerable and
indigent persons who have no
legal knowledge of their rights
and able legal representation.
International and
domestic basis
The right to equality before
the law and access to justice
have been the bedrock of the
rule of law, democracy and
elite constitutionalism since
the conception of modern
states and the United Nations.
The rule of law ensures that

2
Masitta C, ‘Introduction of Public Defender System in Kenya: A Prerequisite for Justice’ (Academia.edu, 20 February 2015) <https://www.
academia.edu/10954250/Introduction_of_Public_Defender_System_in_Kenya_A_Prerequisite_for_Justice> accessed 17 August 2023
3
Ibid
4
Article 48 of the Constitution of Kenya 2010
5
‘The Public Defenders’ (The) <https://www.publicdefenders.nsw.gov.au/> accessed 18 August 2023
6
Cineas F, ‘Why Ketanji Brown Jackson’s Time as a Public Defender Matters’ (Vox, 21 March 2022) <https://www.vox.com/22979925/ketanji-
brown-jackson-public-defender> accessed 18 August 2023
7
Supra

70 SEPTEMBER 2023 www.theplatformmagazine.co.ke


everyone is equal before the
law regardless of wealth,
gender or culture inter alia.
The main aim of the criminal
justice system is to safeguard
and promote the rule of law.
Principles like the right to fair
trial and the rights of arrested
persons are crucial principles
that emanate from the rule of
law which seek to protect and
promote the rights of people.
Article 11(1) of the Universal
Declaration of Human Rights
declares that “ Everyone
charged with a penal offense
has the right to be presumed
innocent until proven guilty
according to law in a public
trial at which he has had all the
guarantees necessary for his
defense.”8 Similarly, Article 14(3)
(d) of the International Covenant
on Civil and Political Rights
provides that, “Anyone with
8
Article 11(1) of the Universal Declaration of Human Rights (1948)
9
Article 14(3)(d) of the International Covenant on Civil and Political Rights (1966)
10
Article 7(1) of the African Charter on Human and Peoples Rights (1981)
11
Article 2(5) of the Constitution of Kenya 2010
12
Article 50 of the constitution of Kenya 2010
www.theplatformmagazine.co.ke
criminal charges leveled against
them, to be tried in his presence,
and to defend himself in person
or through legal assistance of his
own choosing; to be informed,
if he does not have legal
assistance, of this right; and to
have legal assistance assigned
to him, in any case where the
interests of justice so require,
and without payment by him
in any such case if he does not
have sufficient means to pay for
it….”9
The African Charter on
Human and Peoples Rights
Article 7(1) additionally
reiterates that every
individual has the right to
have his cause heard and the
right to defense, including
the right to be defended by
a counsel of their choice.10
Furthermore the Principles of
Natural Justice, Nemo judex
in causa sua and Audi Alteram
Partem, which are the rules
against bias and rule of fair
hearing respectively bolster
this forward trudge on the
promotion of the rule of law,
allowing access to justice and
adequate protection of those
brought charges against them.
By dint of Article 2(5) of the
Constitution of Kenya 2010,
Kenya supposedly becomes
a monist state hence all
international instruments
shall form part of the laws
of Kenya.11 Constitutional
provisions which seek to
protect and promote equality
enjoy the right of not being
limited, the right to fair
hearing which is stipulate in
Article 50 of the Constitution
enjoys this right and by virtue
of this Article an accused
person has the right “to have
adequate time and facilities
to prepare for defense, to
choose, and be represented
by, an Advocate, and to
be informed of this right
promptly, To have an advocate
assigned to the accused
person by the state and at
state expense…..”12
The national legal aid
service and its challenges
The National Legal Aid service
came into existence after the
promulgation of the Legal Aid
Act, 2016. The National Legal
SEPTEMBER 2023 71

Aid Act was promulgated so
as to deeply ensconce and
safeguard the constitutional
entitlements such as fair
hearing and the right of an
accused to have counsel.
Some have argued that this
is a progressive right and not
an urgent right like the right
to healthcare and housing.
Due to this it can be argued
that the right be limited to
grave and capital offenses
where an accused’s life and
right to freedom are at stake.
The foregoing could be seen
from the High Court case
Sheria Mtaani na Shadrack
Wambui V Office of the Chief
Justice & another; Office of the
Director of Public Prosecutions
& another (Interested Parties)
[2021] eKLR13 where the
13
Sheria Mtaani na Shadrack Wambui V Office of the Chief Justice & another; Office of the Director of Public Prosecutions & another (Interested
Parties) [2021] eKLR
14
Muia, ‘The Right of an Accused Person to Legal Representation’ (CFL Advocates, 17 August 2021) <https://cfllegal.com/the-right-of-an-accused-
person-to-legal-representation/#:~:text=Article%2050%20(2)%20(g,be%20represented%20by%20an%20advocate.> accessed 18 August 2023
15
Ibid
16
Supra
17
Legal Aid Act, 2016
72 SEPTEMBER 2023
court ruled on the nature
and extent of the right to
legal representation and the
eligibility of persons charged
with sexual offenses to legal
representation at the state’s
expense. The Petitioner
argued that failure of the
state to provide accused
sexual offenders with legal
representation at the state’s
expense violates their right to
a fair trial.14
The court distinguished
between the right to choose
to be represented by an
advocate and be informed of
the right promptly; and the
right to have an advocate
assigned to the accused
person by the state at the
state’s expense.15 The court
affirmed that the right to
legal representation relates
to informing an accused
person of their right to be
represented by an advocate
of their choice as stated in
Article 50(2) (g).16 The court
stated that the Legal Aid Act,
No.6 of 2016 places a duty on
judicial officers to inform the
accused of their right to legal
representation immediately
after their appearance in
court.17 The court held that a
failure on the part of a judicial
officer to do so, having regard
to the circumstances of a
particular case, may result in
an unfair trial and injustice
and render the trial a nullity.
The court however stated
that the constitutional
requirement under Article
50(2) (h) to assign an
accused person with legal
representation at the state’s
expense is not absolute. An
accused person is required
to make an application to the
National Legal Aid Service
created under the Legal
Aid Act, No.6 of 2016 for
consideration. In its finding,
the court reaffirmed the
right provided in Article
50(2)(h) and stated that legal
representation is a qualified
constitutional right and any
eligible person is at liberty to
apply for legal representation
under the Legal Aid Act.
www.theplatformmagazine.co.ke
The National Legal Aid
Service from its conceptions
harbors a number of purposes
such as; the collection and
availing of funds to be used
for the provision of legal aid;
the screening, identification,
and acceptance or rejection
of potential beneficiaries or
candidates.18 The service is
also required to carry out
investigations to establish
that the beneficiaries are
well deserving in order not to
needlessly waste important
resources.19
It was also given the mandate
to determine and recognise
those deserving of legal
assistance; the establishment
of standards and requirements
for accreditation; and the
accreditation of qualified legal
practitioners who can work
within the view of achieving
its functions. Additionally,
the service is tasked with the
responsibility of reclaiming or
collecting awards.20
In spite of the lauded
functions stipulated by the
Act, it nevertheless has posed
a number of challenges that
not only impede its ability
to do its functions but also
inhibit the same access to
justice that it seeks to protect
and promote. One of the
18
Ibid
19
Ibid
20
Ibid
21
Okoth Onyango Aaron, ‘Rethinking the National Legal Aid Service’ (2021) 7 Journal of Cmsd
22
Ibid
23
Ibid
24
Ibid
25
Ibid
26
ibid
www.theplatformmagazine.co.ke
implications of having a lot
of functions is the inability
to perform all functions well
due to divided attention.21
Paying more attention to
ancillary functions such as
the accreditation of qualified
legal practitioners rather than
solely looking for people who
are accused and helping them
can impede justice.22
The legal service also suffers
a lot of cost implications
due to the bloated nature of
employees hired to perform
ancillary functions.23 Due
to the nature of the Legal
Aid Service being held as an
independent body that is
capable of suing and being
sued, it loses a lot of money
by suing and being sued
due to the costs that follow
these lawsuits. This therefore
pushes the focus of the legal
aid fund being focused more
on other functions rather than
helping those who are in dire
need of it.24
Quality assurance is a
predicament encompassing
numerous aspects that
work in tandem to ensure a
suitable outcome. This quality
assurance involves setting
standards and continually
revising and improving them.
This will ensure that the
attention of the service is
fully focused on ensuring
compliance with required
standards hence ultimately
leading to well-regulated
and coherent legal services
encompassing both public
and private players.25 This lack
of quality assurance poses
a challenge in that the legal
service will be stagnant and
the problems that exist within
its parameters have little to no
chance of being fixed. This can
be attained through if there
is an independent overseeing
body that regulates the
service and ensures that it
offers top notch legal aid
whilst also ensuring that the
fiscal responsibilities are well
managed and accounted for.26
Many of the people who
are brought before criminal
courts are indigent and have
inadequate legal knowledge
which puts them at a losing
position compared to the
prosecutors understanding
of both the substantive and
procedural law. This puts
the accused at a corner from
the plea-bargaining stage
to the sentencing stage.
Furthermore, postponements
due to procedure often puts
the accused at an unfair
position where they can
spend long times in prison
SEPTEMBER 2023 73
before their case is even
mentioned again. Due to
lack of legal knowledge and
legal awareness oftentimes
accused people cannot access
legal aid since they cannot
apply to get one.

The Legal Aid Act, 2016

states that a court before
which an unrepresented
accused is presented shall
inform the service to provide
legal aid to the accused
person.27 This is a progressive
provision as it follows the
principles of the right to
representation which is one
of the foundations upon
which the act is premised.
However, an incongruous
provision under Section 43(6)
stipulates that ‘despite the
provisions of this section,
lack of legal representation
shall not bar the continuation
of proceedings against a
person.’28 This provision is
not only conflicting but also
ambiguous as to the intention
of the drafters of the Act. It
is obscure why the act would
emphasize the importance
of legal representation to
an accused and still proceed
that it is insignificant when
it comes to proceedings in
court. Such ambiguities can
be ripe grounds for abuse and
impediment of justice.29 Due
to this provision the National
Justice Hugo Black
Legal Aid Service cannot
perform its mandates well due
to the incongruent nature of
the provisions in the Act and
hence make little to no effort
in helping accused people.
Putting up the public
defender system
In the American case of
Gideon V Wainwright [1963],30
the appellant who was
charged with breaking and
entering a pool hall in Florida
was denied the right to a
counsel; the trial judge argued
that right was reserved for
indigent defendants who
were at the risk of a death
penalty if found guilty.31
The case reached the US
Supreme Court after the
Florida Supreme Court
denied his habeas corpus
petition claiming his arrest
was unconstitutional. The
US Supreme Court in a
unanimous decision written
by Justice Hugo Black, ruled
that Gideon’s conviction was
unconstitutional because
Gideon was denied a defense
attorney at trial. The Court
ruled that the Constitution's
Sixth Amendment gives
defendants the right to
counsel in criminal trials

27
Supra
28
Section 43(6) of the Legal Aid Act, 2016
29
Omedo KR, ‘The Efficacy of the Legal Aid Act 2016 in Enhancing Access to Justice’ (eujournal.egerton.ac.ke, 2021) <https://eujornal.egerton.
ac.ke/index.php/elj/article/view42/48> accessed 18 August 2023
30
Gideon V Wainwright [1963]
31
McBride A, ‘The Supreme Court . Expanding Civil Rights . Landmark Cases ... - Thirteen’ (Expanding Civil Rights- Landmark cases) <https://www.
thirteen.org/wnet/supremecourt/rights/landmark_gideon.html> accessed 18 August 2023

74 SEPTEMBER 2023 www.theplatformmagazine.co.ke


where the defendant is
charged with a serious offense
even if they cannot afford
one themselves; it states that
"in all criminal prosecutions,
the accused shall enjoy the
right to have the Assistance of
Counsel for his defense."32
Justice Hugo Black quoted
that, ‘Even the intelligent and
educated layman has small
and sometimes no skill in the
science of law. If charged
with a crime, he is incapable,
generally, of determining for
himself whether the indictment
is good or bad. He is unfamiliar
with the rules of evidence. Left
without the aid of counsel, he
may be put on trial without a
proper charge, and convicted
upon incompetent evidence,
or evidence irrelevant to the
32
Ibid
33
‘Clarence Earl Gideon, Petitioner, V. Louie L. Wainwright, Director, Division of Corrections.’ (Legal Information Institute) <https://www.law.cornell.
edu/supremecourt/text/372/335> accessed 18 August 2023
34
Abargil V State of Israel
35
Supra
www.theplatformmagazine.co.ke
issue or otherwise inadmissible.
He lacks both the skill and
knowledge adequately to
prepare his defense, even
though he has a perfect one.
He requires the guiding hand
of counsel at every step in
the proceedings against him.
Without it, though he be not
guilty, he faces the danger of
conviction because he does
not know how to establish his
innocence’.33
From the foregoing it affirmed
the undeniable right set in
the US Constitution’s Sixth
Amendment, it has set up
an effective public defender
system that has served many
accused people in claiming
their rights and accessing
the justice which accrued to
them. Many countries have
adopted this system and it has
solved many of the problems
associated with inadequate
legal awareness and lack of
legal representation.
Similarly in the Israeli
Supreme Court case of State
of Israel V Abargil,34 the trial
court had refused to appoint
a counsel for the defendant
in a burglary charge after
the accused pleaded not
guilty. The prosecution put
a witness on the stand and
the defendant refused to
cross-examine. The accused
applied to the Supreme Court
and it quashed the lower
court’s decision on grounds
of refusing to appoint a
counsel, even though they
were also of the opinion that
the lower court’s decision
was influenced by a lack of
adequate legal services for
the poor.35
Kenyan courts need to
establish a jurisprudence that
protects the rights espoused in
Article 50 of the Constitution
and put in place an efficacious
system of justice that ensures
every defendant despite the
alleged crime has a right to
counsel. Despite the existence
of the National Legal Service
Aid, National Legal Aid and
Awareness Program (NALEAP)
and the National legal Aid Act,
the accused person’s rights
are still elusive because of
SEPTEMBER 2023 75
the existence of bureaucratic
bottlenecks such as in
NALEAP as aforementioned
earlier.

Therefore, it is necessary to
entrench the Office of Public
Defender in the Constitution
the same way that the Office
of the Director of Public
Prosecution (ODPP) can be
found under Article 157 of the
Constitution.36 Historically,
the office of Public Defender
was unceremoniously
removed from the draft
Constitution on the grounds
that the Ministry of Finance
had made provisions for
the legal aid program. The
2007-08 post-election
violence sought to create the
office of Public Defender by
which the evident unequal
outcomes in courts between
the well-armed hand of
the government could be
balanced by that of the
indigent and vulnerable.
Funding
Notwithstanding the ardent
feelings of justice that may
emanate from the creation of
the office of Public Defender,
it will be a big hurdle financing
such a feat especially for a
developing nation like Kenya.
The United States currently
has a $1.49 billion budget
set aside for public defender
services,37 the UK which has
around the same population
as Kenya uses nearly the same
amount a year to fund such
an endeavor. Due to these
high figures, it seems like a
near impossibility that these
funds could be raised. For
instance, drunk drivers are
charged $200 which churns
nearly $2 million in revenue
which goes straight to the
public defender's office, the
same could be done in Kenya
where petty offenses and
misdemeanors funds could be
directed towards the running
of the office.38
Owing to the nature
of colossal funding it is
necessary to continue with
the means test which includes
investigating and looking
whether the accused can
afford a counsel which the
legal aid service already
does. Since the Office of the
Public Defender is a resource
intensive program, Article
27(6) of the Constitution
provides for the progressive
realisation through legislative
measures that are designed
to redress any disadvantage
suffered by indigent and
vulnerable persons. Due to
the nature of this enormous
funding the Kenyan
Government would have
to improve and refine their
existing laws like the Legal Aid
Act which has an enormous
lacuna which need be fixed
or rather found the Office
of the Public Defender and
improve as a progressive right
through the years as similar
third world states like Nigeria

36
Article 157 of the Constitution of Kenya 2010
37
Lynch SN and Cowan R, ‘US Public Defenders Could Lose Hundreds of Staff in Budget Shortfall, Officials Say’ (Reuters, 19 July 2023)
<https://www.reuters.com/world/us/us-public-defenders-could-lose-hundreds-staff-budget-shortfall-officials-2023-07-19/#:~:text=An%20
appropriations%20bill%20moving%20through,its%20current%20%241.49%20billion%20budget.> accessed 18 August 2023
38
Supra

76 SEPTEMBER 2023 www.theplatformmagazine.co.ke

have established in the State
of Lagos.
Additionally, countries
like Uganda are moving
to establish pilot projects
for the creation of the said
office in order to reduce
the pretrial detentions and
case backlogs. Currently a
detained person can stay even
up to a year or two because
of postponement of cases
due to procedure, hence it is
necessary to declutter this by
establishing the office of the
Public Defender who would
move to ensure that accused
peoples cases are heard
expeditiously as per Article
159 of the Constitution.39
The Public defender System
should be an independent
system which is self-regulated
like that of the Office of the
Director Public Prosecution.
This will allow the system to
be self-sufficient to run its
own functions without undue
influence from powerful
outside players. One of the
shortcomings of the national
legal aid service as noted
was divided attention in that
focusing on ancillary functions
like cost and accreditation
of advocates for aid seem to
impede and obscure the main
function which is helping
indigent people access justice.
Allowing other departments
and ministries to focus on
the ancillary functions whilst
making the Public Defender's
office undeterred in its
pursuit of justice. This would
Article 159 of the Constitution of Kenya 2010
39
www.theplatformmagazine.co.ke
additionally ensure quality
assurance to be there making
the office independent and
also held accountable with
regards to the funds they
spend this would also allow a
room to benchmark mistakes
and improve them accordingly
to promote quality assurance.
Additionally, this would
allow Public defenders to
make investigations into
their clients' cases as much
as the prosecutors and
investigating officers make
into the accused’s case. This
is something that Legal Aid
service and Private actors
are not fully able to do, this
may be due to the complexity
of the case and even the
willingness of those aiding
the accused in giving their all.
With the office of the Public
Defender, advocates working
there will have unfettered
focus and determination
in helping accused people
since that is their main job
compared to other lawyers
who are aiding but have their
attention in many places.
Conclusion
In summary, there is need
to bolster Kenya’s Criminal
Justice System considering
the evident inadequacies
of both the National
Legal Aid Service and the
incongruencies seen in the
Legal Aid Act of 2016, it is
clear that the implementation
of a comprehensive public
legal Justice involves the fair and
equal treatment of individuals under
the law. It includes ensuring that laws
are applied consistently and without
discrimination, and that individuals
receive a fair trial and due process.
defender system is not only
necessary but also a crucial
step towards rectifying the
current shortcomings in
legal awareness and legal
representation. By instituting
a robust public defender
framework, we can bridge
the gaps in access to justice,
uphold constitutional
rights, and ensure a fair and
equitable legal process for
everyone, ultimately fostering
a more just and accountable
legal system.
Mohammed Abdullahi Hassan
is a third year Law student at the
University of Nairobi, Parklands.
His research interests include
Human rights law, constitutional
law and Alternative dispute
resolution. He can be reached at
mohammed075779@gmail.
SEPTEMBER 2023 77
 Bibliography
African Charter on Human and Peoples
Rights, 1981
Constitution of Kenya 2010
International Covenant on Civil & Political
Rights, 1966
Legal Aid Act, 2016
Universal Declaration of Human Rights, 1948
Gideon V Wainwright [1963]
Sheria Mtaani na Shadrack Wambui V Office
of the Chief Justice & another; Office of the
Director of Public Prosecutions & another
(Interested Parties) [2021] [2021] Kenya law
(High court of Kenya)
Cineas F, ‘Why Ketanji Brown Jackson’s Time
as a Public Defender Matters’ (Vox, 21 March
2022) <https://www.vox.com/22979925/
ketanji-brown-jackson-public-defender>
accessed 18 August 2023
Francis Kariuki, “Applicability of Traditional
Dispute Resolution Mechanisms in Criminal
Cases in Kenya: Case Study of Republic V
Mohamed Abdow Mohamed [2013] eKLR”
(2014) 2(1) Alternative Dispute Resolution 210
Lynch SN and Cowan R, ‘US Public
Defenders Could Lose Hundreds of Staff
in Budget Shortfall, Officials Say’ (Reuters,
19 July 2023) <https://www.reuters.com/
world/us/us-public-defenders-could-
lose-hundreds-staff-budget-shortfall-
officials-2023-07
Masitta C, ‘Introduction of Public Defender
System in Kenya: A Prerequisite for
Justice’ (Academia.edu, 20 February 2015)
<https://www.academia.edu/10954250/
Introduction_of_Public_Defender_System_
78 SEPTEMBER 2023
in_Kenya_A_Prerequisite_for_Justice>
accessed 17 August 2023
McBride A, ‘The Supreme Court . Expanding
Civil Rights . Landmark Cases ... - Thirteen’
(Expanding Civil Rights- Landmark
cases) <https://www.thirteen.org/wnet/
supremecourt/rights/landmark_gideon.
html> accessed 18 August 2023
Muia, ‘The Right of an Accused Person
to Legal Representation’ (CFL Advocates,
17 August 2021) <https://cfllegal.com/
the-right-of-an-accused-person-to-legal-
representation/#:~:text=Article%2050%20
(2)%20(g,be%20represented%20by%20
an%20advocate.> accessed 18 August 2023
Okoth OA, ‘Rethinking the National Legal
Aid Service’ (2021) 7 Journal of Cmsd
Omedo KR, ‘The Efficacy of the Legal Aid
Act 2016 in Enhancing Access to Justice’
(eujournal.egerton.ac.ke, 2021) <https://
eujornal.egerton.ac.ke/index.php/elj/article/
view42/48> accessed 18 August 2023
‘US Public Defenders Could Lose Hundreds
of Staff in Budget Shortfall, Officials Say’
(Reuters, 19 July 2023) <https://www.
reuters.com/world/us/us-public-defenders-
could-lose-hundreds-staff-budget-shortfall-
officials-2023-07-19/#:~:text=An%20
appropriations%20bill%20moving%20
through,its%20current%20%241.49%20
billion%20budget.> accessed 18 August
2023
‘Clarence Earl Gideon, Petitioner, V.
Louie L. Wainwright, Director, Division
of Corrections.’ (Legal Information
Institute) <https://www.law.cornell.edu/
supremecourt/text/372/335> accessed 18
August 2023
‘The Public Defenders’ (The) <https://www.
publicdefenders.nsw.gov.au/> accessed 18
August 2023
www.theplatformmagazine.co.ke
 An open letter to the President
of the Republic of Kenya
H.E DR. WILLIAM
SAMOEI RUTO
Dear Mr. President,
I hope this letter finds you in good health
and high spirits. Without the necessity of
obfuscating words, I am writing to you in
concern for the entire Kenyan population
and essentially to add my little voice to
some of the plethora of issues that could
make or mar Kenya's solemn desire for its
quest for peace and stability, social justice
and prosperity. It is my right, and so 53
million others, to address ourselves to you
sir, as Kenyan citizens, whose servant you
are, and to whom you are bound to listen,
and for whom you are equally bound to
speak, and upon occasion to act. Suffice
to say, that I am very appreciative of your
current efforts to reposition Kenya on
the path of greatness for which many
of us are grateful. There are however a
number of concerns which to my mind
if left unchecked could lead us to a dead
end, may God forbid that. Mr. President,
before I engage you on the matters, let me
place it on record that I strongly share your
hustler ideology, and that this letter is not
in support of the opposition leader, Mr.
Raila Odinga, or Azimio or any other similar
group or person. This is us, Kenyans,
crying! For we are suffering.
Mr. President, your strength of character
and your values of perseverance has
endeared your personality to my heart
www.theplatformmagazine.co.ke
that I see you as a role model whose
virtues the Kenyan youths would do good
to emulate. In the build up to the 2022
general elections, I was one amongst many
young Kenyans who eagerly waited for you
to emerge victorious at the presidential
polls not because the United Democratic
Alliance (UDA) was full of ‘saints’, but
because we share in your aspirations of
selfless service to our great nation. It
is more on this premise that I have the
audacity to write you this letter so that
Kenya can be better for it.
Mr. President, because I voted for change
for which I have no regrets, and as a
stakeholder in the Kenyan project, I am
duty-bound to actively contribute to the
much-desired change so that my fellow
youths and millions of other Kenyans who
voted for you will not be put to shame.
Everyone I know who voted for you is
now turning in the other direction, but I
have faith in you that you will turn this
around. Therefore, in raising the issues
even though it may sound bitter to you, I
have nothing to lose and have everything
to gain should this translate into better
living standards for the Kenyan people.
When I voted for you, I really was inspired
that you would make the changes to help
us, Kenyans, but all I see is suffering.
It's not fair. We never asked for this, Mr.
President!!! This is heartbreaking. I want
SEPTEMBER 2023 79
 you to hear how we are struggling. Put
yourself in our shoes Mr. President.
Firstly, Mr. President, I'd like to draw your
attention to the pressing issue of the
high cost of living that has burdened our
nation's populace. While acknowledging
the immense challenges faced by our
government, I wish to emphasize the
negative impact of over-taxation on
our citizens' livelihoods and their ability
to sustain a decent standard of living.
Kenyans are suffering and groaning. It is no
secret that the cost of living in Kenya has
skyrocketed since you came into power,
with many families struggling to make ends
meet. Essential commodities such as food,
housing, and healthcare have become
increasingly unaffordable for a significant
portion of our population.
Mr. President, do you know that 2kg
of Maize flour, Kenya's staple food is
currently at Kshs. 250 same to a 2-kg
packet of sugar? The burden of over-
taxation is one of the major contributors
to this unfortunate state of affairs.
While it is crucial to generate revenue to
fund essential government services and
infrastructure development, we must
strike a balance that does not excessively
burden the very citizens we aim to uplift.
Mr. President, George Bernard Shaw
argued more than 100 years ago (in the
preface to his 1907 play Major Barbara)
that, ‘The greatest of evils and the worst
of crimes is poverty’. This certainly goes
well beyond noting the fact that poverty is
a huge tragedy, which is currently ruining
the lives of a great many people in Kenya.
The immense tragedy of poverty is obvious
enough: the lives of many people are
being battered, their happiness has been
stifled, creativity destroyed, and their
freedoms have been eradicated by the
misfortunes of poverty. Overburdening
the populace with heavy taxes has placed
an unfair and disproportionate burden
on those who are already struggling to
meet their basic needs. The resulting
80 SEPTEMBER 2023
high cost of living exacerbates inequality
and stifles economic growth, hindering
our nation's progress. Moreover,
the impact of over-taxation extends
beyond individuals and families.
Small and medium-sized enterprises
(SMEs), which are the backbone of our
economy, are also severely affected.
These businesses provide employment
opportunities and contribute significantly
to the national GDP. However, excessive
taxation hampers their growth and
competitiveness, resulting in reduced
investment, layoffs, and even business
closures. This further compound the
economic challenges faced by our citizens.
Mr. President, the pains Kenyans are going
through is excruciating and unspeakable
and can hardly represent the change we
voted for. If anything is worthwhile, if
it is excellent, if it is noble and people
oriented, please think and act about it
and fast too. Kenya is in dire need of a
team of seasoned economists who can
think outside the box and bring us out of
this economic morass in which we have
found ourselves. Albeit it may seem an
early call to pass a verdict on your ten
months old government, the suffering
is increasing by the day and something
drastic needs to be done; desperate times
require desperate measures. Even though
you have apologized to Kenyans and
sought our understanding and patience,
the only language Kenyans understand
is food on their table and anything less
would amount to flogging a dead horse.
Poverty has a deep existential impact,
being denied the opportunity to flourish,
whether for yourself or your children, cuts
very deep indeed. Mr. President, you have
only four years left, to prove your mettle
and woo your detractors and nay sayers to
your own side of history. Time is running
out. You must make hay while the sun
shines for night cometh when no man can
work! As Nelson Mandela said, poverty
and extreme inequality rank alongside
slavery and apartheid as evils that can be
www.theplatformmagazine.co.ke
 vanquished, I humbly request that you
consider the following measures:
• Review and rationalize the tax
structure: Assess the current tax
system to identify areas where rates
can be adjusted, exemptions can
be granted, and more progressive
tax policies can be implemented.
This will ensure that the tax burden
is distributed more equitably and
proportionately, thereby alleviating
the strain on low and middle-income
earners.
• Promote transparency and
accountability: Enhance transparency
and accountability in the use of public
funds, ensuring that tax revenues are
effectively utilized for the betterment
of our nation. This will foster public
trust and confidence in the taxation
system and its role in national
development.
• Encourage investment and job
creation: Introduce incentives and
initiatives that attract both local
and foreign investment, stimulating
economic growth and job creation.
This will broaden the tax base and
reduce reliance on individual income
taxes, ultimately alleviating the
burden on citizens.
• Foster dialogue and citizen
participation: Establish platforms for
constructive dialogue between the
government, citizens, and relevant
stakeholders. Encourage public
participation in the decision-making
process, particularly in matters
related to taxation. This will ensure
that policies reflect the needs and
aspirations of the people, promoting
a more inclusive and responsive
governance framework.
Mr. President, development is about
transforming the lives and expectations
of a nation’s inhabitants, an ambition
that goes far beyond simply increasing
monetary income. Although the past
www.theplatformmagazine.co.ke
60 years have seen enormous progress,
huge and urgent challenges remain in
tackling injustice, inequality, and needless
suffering. The starting point for this effort
must be guaranteeing that all people enjoy
their basic rights and the ability to exercise
them. People living in poverty must take
or create power over their own lives and
destinies.
To develop, countries need educated,
informed, and healthy citizens and a
state both willing and able to provide
the essential services on which their
well-being depends. The State must also
ensure that both the quality and quantity
of economic growth meets developmental
needs. Through their interaction, the State,
citizens and the holders of economic
power (be they businesses, landowners
or financiers) determine (not always
peacefully) the nature of development. I
firmly believe that by implementing these
measures, we can alleviate the heavy
burden of over-taxation and create an
environment that supports economic
growth, social development, and improved
quality of life for all Kenyans. Our nation
has shown resilience and the ability to
overcome challenges in the past, and I am
confident that we can work together to
address this pressing issue.
Secondly Mr. President, I have observed
with great dismay the ‘’unfriendly’’ attitude
towards youths and the wanjikus of this
great country of the present government
under your leadership. The number of
appointments made by your highly revered
and exalted office and hustler ideology
so far suggests to me that there may be
just too little for the wanjikus and youths
in the scheme of things. For me, it is a
great source of concern, and the situation
needs to be redressed. Mr. President,
please do not allow the old guards most
of whose interest is a penchant for self-
aggrandizement/preservation to mislead
you into forgetting so soon the gigantic
role the wanjikus and youths played in
SEPTEMBER 2023 81
 supporting you and the UDA to victory
during the last general polls. Never forget
that history is replete with nations who
forgot their youthful populations and
had to pay dearly for it. I do not wish
that Kenya follows the same path for any
nation that ignores its youths and does so
at its own peril. To this end, I implore you
Mr. President to as a matter of priority
reconsider mainstreaming more wanjikus
and youths into your change agenda by
way of giving them more opportunities
to serve and to take proactive steps in
formulating clear-cut policies that are
sensitive to their needs in the real sense of
the word and not just by word of mouth.
Let there be initiatives capable of creating
decent jobs for the teeming population
of Kenyan youths, empowering the
wanjikus to cater well to their families
and so on and so forth. Any attempt to
ignore these very important segments of
our society would be a recipe for social,
economic and political instability. Going
by our demographics, it is very clear that
the Kenyan population is a youthful one;
the youth represent about 75% of our
productive and voting population. I am
sure Mr. President will not need a crystal
ball seer to tell him the implications of
ignoring the concerns of the wanjikus and
youths. After all you are a hustler.
Thirdly, Mr. President, there has been
increasing dissatisfaction with the electoral
process in Kenya. Between 2010 to 2023,
there were countless overt protests
manifested in industrial actions and anti-
government activities to send home
heated grievances with unmet political
promises in Kenya. Political campaigns
are supposed to address the development
needs of the people. Accordingly, voters
are inspired to work for the candidate or
political party whose campaign promises
agree with their social, economic and
political needs. Mr. President, some
members of your political faction and
political loyalists rely on the use of
82 SEPTEMBER 2023
violence, with the collusion of security
agencies, to suppress Kenyans when they
tend to become more vocal in demanding
the fulfillment of campaign promises.
In recent times, the whole process has
not been encouraging. The campaigns
in 2022 general elections in Kenya were
full of excitement on the part of the
electorates, which now ends in discourse
and bitterness. Mr. President, you're
probably wondering why Kenyans come
in masses to protest. It is because people
working together to determine the course
of their own lives, fighting for rights and
justice in their own societies, are critical
in holding states and others to account.
Mr. President, active citizenship has
inherent merits: people living in poverty
must have a voice in deciding their own
destiny, rather than be treated as passive
recipients of welfare or government action.
What is more, the system (governments,
judiciaries, parliaments, and companies)
cannot tackle poverty and inequality by
treating people as ‘objects’ of government
or other action. Rather, people must be
recognised as ‘subjects’, conscious of and
actively demanding their rights, for efforts
to bear fruit. Feeling that one has a right
to something is much more powerful than
simply needing or wanting it. It implies
that someone else has a duty to respond.
Rights are long-term guarantees, a set
of structural claims or entitlements that
enable people, particularly the most
vulnerable and excluded in society,
to make demands on those in power,
who are known in the jargon as ‘duty-
bearers’. These duty-bearers in turn have
a responsibility to respect, protect, and
fulfil the rights of ‘rights-holders’. Rights,
therefore, are naturally bound up with
notions of citizenship, participation, and
power.
Mr. President, don't let democracy be an
ambiguous story in Kenya. Some years
ago, the main concern was that the “third
wave of democracy” had reached a peak
and that the processes of transition to
www.theplatformmagazine.co.ke
 democracy had come to a standstill.
Lately, the main concern is about
democratic backsliding, which refers to
the eroding quality of Kenya's democracy.
The backsliding is evidenced by both
the gradual and intentional weakening
of checks and balances, as well as the
decline of civil liberties, brutal repression
of the freedom of expression, freedom of
association and assembly, and civil society
participation; in sum, a shrinking of civic
space, which is essential for democracy.
Since the Universal Declaration of Human
Rights, human rights norms advanced
rapidly, the UN and regional human rights
regimes issued many declarations and
treaties, Kenya ratified most of these
conventions, it even established human
rights agency, advocacy organizations
proliferated in Kenya, the perpetrators
of some gross violators were brought
to justice and people and activists
increasingly articulated their issues by
employing a language of human rights.
Then, I look around and see all kinds of
violations and discrimination going on as
always, if not increasing. Mr. President,
you can help change the face of this state
of affairs. Never doubt that a group of
concerned citizens can change the world.
Indeed, it is the only thing that ever has.
Finally Mr. President, the Kenya Kwanza
government under your watch is not doing
enough to actively engage and get the
necessary buy in of Kenyans on what it
intends to achieve. While I do not seek
to undermine the current efforts, I am
just thinking that as a government you
can engage citizens better. Meetings
in banquet halls of five-star hotels can
only achieve but a little. Is it possible
that we replicate these meetings at
lower levels such as town halls or village
squares? Can we patronize other local
media outfits like radio and television
stations in the counties using their local
dialects and resources so we can reach
out to more people? For me the answer
is an emphatic YES! I am pretty sure that
www.theplatformmagazine.co.ke
doing this will help us educate our people
about government’s policy directions, it
will help us douse unnecessary tensions
and ‘’wailings’’ amongst the people and
generate positive energy for national
development. The Kenyan government
needs to become an actor of important
decision-making, but not the only one
making decisions. It is necessary to
build power from different “places”,
the state, the public sphere, popular
organizations, civic groups, and in the
political space governed by the principles
of independence and cooperation, with
the direct participation of the public in
development, implementation and control
of state policy towards the horizon: the
collective construction of order. To do
this will require ‘’uncommon’’ courage and
sacrifice by both leaders and the led so
that together we can realize the Kenya
of our dreams. Like Albert Einstein would
say, ‘’In the midst of our adversities lies an
opportunity’’.
Mr. President, I look forward to a day
when your government will take Kenyans
to the promised land so it can muster the
courage to ask Kenyans for yet another
opportunity to serve. I wish you Godspeed,
good health and strength as you pilot the
affairs of this great country to an expected
end. Thank you for your attention to this
matter. I remain hopeful that, under your
leadership, Kenya will continue to progress
toward a brighter future where the cost of
living is affordable for all citizens and their
rights respected.
Yours in the struggle for a better Kenya!
Nicole Dempster is a
third-year law student at
The Catholic University of
Eastern Africa.
SEPTEMBER 2023 83
 Exploring the goal of
imprisonment and the debate over
certificates of good conduct
By Emma Ella Katiba
Abstract
In the realm of incarceration,
a complex tapestry unfurls,
weaving together diverse
objectives that shape its
purpose. Retribution stands
as a cornerstone, seeking
a proportional response to
the harm caused by criminal
actions. Deterrence looms as
an enigmatic force, driven by
the belief that punishment can
dissuade future transgressions.
Incapacitation, a strategy of
physical separation, aims to
shield society from potential
harm. Amid these aims,
rehabilitation emerges as a
beacon of hope, endeavouring
to unravel the underlying
causes of criminal behaviour
and pave the way to
reintegration. Behind prison
walls, a dichotomy exists – a
struggle between personal
transformation and lingering
denial. Convicted individuals,
steadfastly asserting their
innocence, challenge the notion
of reform within the confines
of incarceration. The enigma
deepens as questions arise:
84 SEPTEMBER 2023
Can genuine transformation
occur when the denial of
committed offenses persists?
Is the process of custodial
sentencing an effective means
of fostering change? Central to
the discourse is the contentious
topic of certification.
certificates of good conduct,
a testament to an individual's
past, become passports to
opportunities, influencing
employment, immigration, and
licensing prospects. Yet, ethical
quandaries surface. Does the
requirement of such certificates
perpetuate stigma, hindering
the journey of reintegration?
Can alternative measures
provide a fairer assessment
of rehabilitation, shifting the
focus from past actions to
present potential? Amidst these
intricacies, real-world examples
beckon our attention. Global
landscapes vary, showcasing
diverse approaches to balancing
the scales between public
safety and individual rights.
The saga unfolds against the
backdrop of ongoing criminal
justice reform efforts, where
insights into the labyrinthine
dynamics of incarceration and
reintegration hold the key to a
more just and compassionate
society.
1. Introduction
“The Kenya Prisons Service is
a Department in the Ministry
of Interior and Coordination
of National Government. It
contributes to public safety
and security by ensuring there
is safe custody of all persons
who are lawfully committed
to prison facilities, as well as
facilitating the rehabilitation of
www.theplatformmagazine.co.ke
custodial sentenced offenders
for community reintegration.”1

Witnessing individuals
succumb to despair upon
receiving their imprisonment
sentences is not an
uncommon occurrence. In
such moments, it is evident
that many perceive their
lives as irrevocably altered.
Nonetheless, a glimmer
of hope persists for some,
motivating them to seek
an appeal in anticipation of
overturning their convictions
or securing sentence
reductions. Although
instances of convictions
being overturned are rare,
the outcome often involves
adjustments to the duration of
imprisonment, either through
reduction or non-custodial
sentences.
A prevailing sentiment among
prisoners is the steadfast
denial of culpability even
in the face of conviction.
Many assert their innocence,
attributing their predicament
to wrongful framing or, in
more extreme cases, claiming
to have taken responsibility
for others' actions. This raises
an intriguing dilemma: How
can meaningful rehabilitation
take root within prison walls
if individuals remain in denial
about the very transgressions
that led to their incarceration?
Moreover, it prompts us
to question the efficacy of
custodial sentencing as a
means of transformation.
2. The aims of
imprisonment
The aims of imprisonment
are multifaceted and
mainly include inter alia,
retribution and punishment,
incapacitation, deterrence
and prevention of crime,
rehabilitation and reformation
and protection of society.
2.1. Retribution and
punishment
Retribution is the idea that
punishment should be
proportionate to the harm
caused by the crime. It aims
to satisfy society's sense
of justice by ensuring that
offenders "pay" for their
wrongdoing. Retribution
is probably the oldest
justification of punishment
and can be found in the
theories offered by Kant and
Hegel (Brooks, 2001). It is
the fact that the individual
has committed a wrongful act
that justifies punishment and
that the punishment should
be proportional to the wrong
committed.2 The philosopher
Kurt Baier has summarized
its underlying premise as
follows:3
• All those convicted of
wrongdoing or crime
deserve punishment;
• Only those convicted
of wrongdoing or crime
deserve punishment;
• The severity of the
punishment should not

1
Kenya Prisons Service Online Portal <https://prisons.go.ke/> Accessed 11 August 2023.
2
UNODC, ‘Justifying punishment in the community’ (United Nations Office on Drugs and Crimes) , <https://www.unodc.org/e4j/en/crime-
prevention-criminal-justice/module-7/key-issues/2--justifying-punishment-in-the community.html#:~:text=Retribution%20is%20probably%20
the%20oldest,proportional%20to%20the%20wrong%20committed.> Accessed 11 August 2023.
3
Kurt Baier, ‘The Strengths And Limits Of The Retributive Theory Of Punishment’ (1977) Pg 37-53.

www.theplatformmagazine.co.ke SEPTEMBER 2023 85

 influence the perceived
proportionality of the
punishment.

2.2. Incapacitation

This aim seeks to protect

Efforts to combat violence involve a multi-faceted approach that encompasses
legal, social, educational, and community-based strategies.
be less than the gravity of cycles of violence and
the crime; revenge. Instead of
• The severity of the breaking the cycle, it
punishment should not be might escalate tensions
greater than the gravity of between offenders and
the crime victims, leading to further
harm.
Proponents argue that 2. Lack of rehabilitation:
retribution provides a moral An exclusive emphasis
balance and holds individuals on retribution
accountable for their actions. might overshadow
It is often seen as a way to rehabilitation efforts.
restore a sense of order and Offenders may not have
fairness in society. the opportunity to reform
and reintegrate into
While the idea of retribution society if the sole focus is
as a justification for criminal on punishment.4
punishment often enjoys 3. Subjectivity: Determining
intuitive support, it has been a "just" punishment
subjected to various strains of can be subjective and
criticism. These include: influenced by societal
biases. Factors such as
1. Cycles of violence: Critics race, socioeconomic
argue that a focus on status and the severity
retribution perpetuates of the crime can
society by physically removing
dangerous individuals from
the community. The theory
of incapacitation assumes
that the state has a duty
to protect the public from
future wrongs or harm
and that such protection
can be afforded through
some form of incarceration
or incapacitation.5 By
incarcerating offenders, the
potential for them to commit
additional crimes is reduced.
The most extreme form of
incapacitating punishment
is the death penalty, but
there are several other forms
including imprisonment,
curfews, house arrest,
electronic monitoring,
and disqualification from
driving for drunken drivers.
Incapacitating sentencing,
however, has been subject
to serious criticism, on both
moral and empirical grounds.6
Critics argue that long
sentences can lead to
institutionalisation and
a lack of preparation for
reintegration upon release.
Besides, the fact that
incapacitating penalties
essentially penalize people for
crimes yet to be committed is

4
See Lucia Zedner, Criminal Justice (2004)
5
UNODC (n2).
6
See for example: Zedner, 2004 (n4); Binder and Notterman, 2017.

86 SEPTEMBER 2023 www.theplatformmagazine.co.ke

one of the biggest concerns;
an inherent danger of
incapacitation is that some
criminals who are now
confined or disabled might
not have committed another
crime had they not been
incapacitated.

2.3. Deterrence

Theories of deterrence
draw on Jeremy Bentham's
philosophy of utilitarianism,
captured in the maxim, "the
greatest happiness of the
greatest number".7 Relatedly
to incapacitation, deterrence
justifies punishment based
on what it will achieve in the
future. There are two types
of deterrence - general and
specific. General deterrence
aims to discourage potential
offenders from committing
crimes by making examples
of those who are punished.
Specific deterrence targets
the individual offender,
seeking to prevent them
from re-offending due to the
fear of further punishment.
Theorists contend that the
social advantages as a result
of the punishment outweigh
the pain of the punishment
and the costs associated with
inflicting the suffering upon
the perpetrator of the crime.
Nonetheless, critics of
deterrence as an aim of
imprisonment argue that
it often fails to effectively
The goal of rehabilitation for prisoners is to reduce the likelihood of reoffending
and to promote positive changes in prisoner's attitudes, behaviors, and skills.
deter crime due to factors
like lack of certainty, unequal
application,8 and the fact that
many crimes are driven by
impulsive decisions rather
than rational calculations of
consequences. Additionally,
some believe that focusing
solely on deterrence ignores
the rehabilitative potential
of imprisonment and can
contribute to a cycle of
recidivism.
2.4. Rehabilitation
The rehabilitation aim
focuses on addressing
the underlying causes of
criminal behaviour and
helping offenders reintegrate
into society as law-abiding
citizens. Its central premise
is that punishment can
prevent future crime by
reforming the individual
offender's behaviour. This
can involve educational
programs, vocational training,
therapy, and mental health
support to address factors
that contribute to criminal
behaviour.
Although it had previously
dominated criminal discourse,
the idea of reform lost favour
in the early 1970s, in part
because of research findings
that revealed punitive policies
were no more effective than
those meant to rehabilitate
criminals in reducing
recidivism.9 Furthermore,
rehabilitative approaches have
been criticized for holding
an overly-deterministic view
of behaviour, that places too
much emphasis on social
and cultural conditions, and
too little on the ability of
individuals to make decisions

7
See for example: Shackleton, 1972; Baujard, 2009.
8
See Hudson, 2003; see also von Hirsch et al., 1999 ‘…, deterrence allows for punishments to be imposed that are disproportionate to the harms
done, for the innocent to be punished and for the punishment of crimes that have not yet been committed’.
9
Martinson, Robert (1974). What works? Questions and answers about prison reform. The Public Interest, 35, 22–54.

www.theplatformmagazine.co.ke SEPTEMBER 2023 87


and choices.10 Yet, reform
remains a key rationale within
many penal systems, justifying
punishment which aims
to address and reduce the
risk and needs of individual
offenders.11
3. Personal transformation
and the complex dynamics
of recidivism
Personal transformations
behind bars can certainly
occur, as individuals often
have time for reflection,
access to educational and
rehabilitative programs, and
the opportunity to re-evaluate
their life choices. Educational
programs, vocational training,
therapy, and counselling can
provide inmates with tools
to address the root causes
of their criminal behaviour
10
UNODC (n2).
11
See Lucia Zedner, Criminal Justice (2004).
12
Cheti Praxides, ‘I choose jail: Why Lamu prison is teeming with repeat offenders’ (The Star, 25 May 2023) < https://www.the-star.co.ke/news/
big-read/2023-05-25-i-choose-jail-why-lamu-prison-is-teeming-with-repeat-offenders/> accessed 14 August 2023.
13
Maltz, M. D., & McCleary, R. (1977). The mathematics of behavioral change: Recidivism and construct validity. Evaluation Quarterly, 1(3),
421–438. https://doi.org/10.1177/0193841X7700100304.
88 SEPTEMBER 2023
and develop new skills. There
are several success stories
of individuals who have
successfully transformed
their lives after being released
from prison. These stories
often highlight determination,
resilience and a combination
of the factors such as
avoiding negative influence,
rehabilitation programs,
employment and housing and
community resources.
Some people have gone on
to achieve academic success,
start businesses, become
advocates for change, and
make positive contributions
to their communities. An
example is a user on Twitter
going by the username ‘A
pimp named Slickback (@
TheOtherDelo_), who has
previously been convicted
and imprisoned, and who
advocates for reformation.
He promotes the slogan
#KureformNdioForm. He also
has a book called ‘Tales of an
ex-convict’. These success
stories demonstrate that
with the right support and
mind-set, transformation is
possible even after a period of
incarceration.
However, the rate of
successful transformation
varies, and repeat offending
can still happen due to
complex factors such as
lack of support, limited job
prospects upon release, or
underlying psychological
issues. Rehabilitation efforts
both inside and outside of
prison play a crucial role in
reducing recidivism rates; but
even with these countless
forms of rehabilitation and
the blueprint on the aims of
imprisonment, the rate of
recidivism in Kenya is at 47%
and growing, according to
data from the Kenya Prisons
Division.12
3.1. Recidivism
Recidivism in a Criminal
Justice context is defined as
the reversion of an individual
to criminal behavior after he
or she has been convicted of
a prior offence, sentenced
and presumably corrected.13
www.theplatformmagazine.co.ke
It is generally measured by
a former prisoner’s return
to prison for a new offence.
From the trend in the high
prevalence of recidivism in
Kenya, there is a staggering
high number of people
being incarcerated and
eventually released back
to the community and
the high risk of re-arrest
and re-incarceration is a
concern for policymakers,
criminologists, and those
involved in corrections.14
High rates of recidivism
result in tremendous costs
both in terms of public
safety and in monies spent
to arrest, prosecute, and
incarcerate reoffenders. High Principal Secretary for Correctional Services, Salome Wairimu
rates of recidivism also lead
to devastating social costs
to the communities and explored’.17 In Kenya, released capacity is approximately
families of offenders, as well citizens have a seventy-five 22,000 inmates. According
as the personal costs to the percent chance of committing to the Principal Secretary
offenders themselves.15 another crime and a fifty for Correctional Services
percent chance of returning to Salome Wairimu, about half
Prison populations are out prison two years after release of the current prisoners are
of control, for many reasons. from prison.18 remandees, who could be
Not only are more offenders released by the end of the
imprisoned for less serious Recently, the government year through leniency.19
offences, more are being of Kenya has been making Others likely to also be
imprisoned for breaching attempts to decongest released will be petty
their release conditions.16 As prisons to improve their offenders, and prisoners,
Baroness Corston stated in conditions. The Kenya including those serving
her report, ‘breach is racketing Prisons, whose current long sentences, who can
up the use of custody to little capacity is 62,000 inmates, demonstrate that they have
avail and there are alternative is in excess of about 40,000 changed their ways. While
community solutions to be inmates, as the prison's previously, releases were

14
Evans Makori Oruta, ‘Socio-Economic Factors That Influence Recidivism in Kakamega
County, Kenya’ (2016) Vol.47, JLPG, 117-125.
15
Ibid.
16
Ibid.
17
Baroness Corson, ‘The Corson Report; A report by bAroness JeAn Corston of A review of women with pArtiCulAr vulnerAbilities in the CriminAl
JustiCe system’ (Corston, forward: I, 2007).
18
Gathu O. (2012) Improving Prison in Kenya. Nairobi: Foundation Press.
19
Anthony Ndwiga, ‘Gov’t Plans To Decongest Prisons Through Leniency, PS Wairimu Says’ Citizen Digital (Nairobi, 10 August 2023) < https://
www.citizen.digital/news/govt-plans-to-decongest-prisons-through-leniency-ps-wairimu-says-n325271> accessed 14 August 2023.

www.theplatformmagazine.co.ke SEPTEMBER 2023 89


only done at the prerogative
of the President, this time
the Judiciary and other
stakeholders in the justice
sector are being engaged to
facilitate the decongestion of
prisons. Community Services
Orders by the judicial officers
have been scaled up as one
of the ways to address the
congestion.
The question that begs
then is, will the ‘rushed’
decongestion be effective?
How certain will the probation
officers be that the inmate
being put forward for release
has completely reformed
and is ready to reintegrate
into society? As has been
stated above, one criterion
for release is that the prisoner
has demonstrated that they
have changed their ways. As
the probation officers will be
working under pressure to
fill the probation reports, will
they be able to fully conduct
[2009] eKLR.
20
90 SEPTEMBER 2023
a background check to ensure
that indeed the inmate has
learned his lesson?
Presumptively, there is a
high probability that several
individuals who will be
released shall neither have
been properly retributed,
reformed nor rehabilitated.
Hypothetically then, we
are looking forward to a
scenario where several of
these individuals shall fall
back into crimes. As per
the retribution theory by
Kart Baier, the severity of
the punishment should be
equal to the gravity of the
crime, and speculatively,
the imprisonment term
meted is what it would have
taken to completely reform
the perpetrator. With the
imprisonment term suddenly
cut short on the basis of
decongestion, coupled with
the pressure on probation
officers to have these people
out, it is safe to say that there
is an imminent rise in the rate
of recidivism.
3.1.1. Causes of
recidivism
Examining the phenomenon
of repeat offenders offers
a compelling glimpse into
the complexities of criminal
behaviour and its recurrence
within certain individuals.
The recurrence of criminal
activities among individuals
with prior convictions raises
important questions about
the efficacy of rehabilitation
efforts and the multifaceted
factors contributing to their
propensity for re-engaging
in unlawful acts. In this
discussion, we will explore
notable cases of repeat
offenders, aiming to gain
insights into the patterns,
motivations, and potential
interventions that can break
the cycle of recidivism.
1. Drug offenders:
Those arrested for
drug possession
might reoffend due to
addiction. Treatment
programs focusing
on rehabilitation and
breaking the cycle of
addiction can significantly
reduce the likelihood
of repeat offenses. In
Patrick Kithi Ngombo V
Republic,20 the appellant
was found in possession
of 54 ½ rolls of cannabis
sativa and that he was a
www.theplatformmagazine.co.ke
 repeat offender. He was
sentenced to 5 years
imprisonment.

2. White-collar crimes:
Offenders involved
in financial fraud may
repeat such crimes
if they view them as
low-risk or profitable.
Enhanced regulations,
stricter penalties, and
effective monitoring
can deter potential
repeat offenders. In
Joan Wanjiku Mungai v
Republic,21 the Applicant Unlike street crimes that involve physical violence, white-collar crimes are
was convicted for twelve characterized by their reliance on intellect, education, and professional skills.
(12) counts of obtaining
by false pretences
contrary to Section
313 of the Penal Code.
This was in three (3)
separate criminal cases
namely; 4033, 4102 and
4103 of 2009. She was
sentenced in Criminal
case 4033 of 2009 in a
judgment delivered on 3rd
of October, 2017 for six
(6) counts to serve three
(3) years imprisonment
on each count to run
concurrently.
In Criminal Case 4102 of
2009 the was judgment
delivered on 20th June,
2018 in which she faced
four (4) counts and was
sentenced to serve three
(3) years imprisonment.
The court noted that the
objectives of community
protection and
deterrence had not been
satisfied as the Applicant
was a repeat offender of
similar offences. Justice
G.W.Ngenye-Macharia
(as he then was) held;
“The Judiciary Sentencing
Policy Guidelines provide
sentencing objective
as; rehabilitation,
denunciation, deterrence,
retribution and
community protection.
The Applicant has
submitted that she had
undergone rehabilitation
and produced letters of
recommendation and
various certificates to
demonstrate this. Further,
she has through her
counsel argued that the
sentences as passed had
a denunciative effect.
She submitted that she
was remorseful for her
actions hence, the import
that the objective of
retribution has been
attended. However, the
objectives of community
protection and deterrence
remain unsatisfied as
the Applicant is a repeat
offender of similar
offences. The aggravating
circumstances are the
number of victims involved
and the Applicant's repeat
offending.”
3. Assault: Some individuals
with a history of assault
may repeat the offense
due to unresolved
anger management
issues. Mandatory anger
management classes and
therapy can address these

[2020] eKLR.
21

www.theplatformmagazine.co.ke SEPTEMBER 2023 91

 (51.7%) of which were
repeat offenders.
Although demographic
and mental health
characteristics were
similar across the two
groups, repeat offenders
reported more extensive
substance use and
criminal histories.23
With these statistics,
a mandatory ignition
interlock devices and
education on the risks of
Driving under the influence is dangerous because substances like alcohol and
impaired driving can help
drugs can significantly impair a driver's coordination, reaction time, judgment prevent recidivism.
and overall ability to operate a vehicle safely.
5. Shoplifting: An individual
caught shoplifting might
underlying problems. some individuals with repeat the offense if
In Brian Chirchir v a history of assault are they have unresolved
Republic,22 The appellant high likely to repeat the financial issues or a lack
sought reduction of his offence. of alternative coping
sentence of 5 years for mechanisms. Addressing
the offence of Grievous 4. Driving under the the root causes through
harm contrary to section influence (DUI): DUI counseling and financial
234 of the Penal Code offenders may reoffend assistance could help
passed on him by the trial if they continue to prevent future incidents.
Court. The DPP opposed disregard the dangers
the appeal, pointing out of drinking and driving. In each case, addressing
that the offence was According to the National the underlying causes
committed in prison Highway Traffic Safety of the initial offense and
where he was serving Administration in the providing appropriate
another sentence from United States, about support, education,
offence of assault, and one third of all drivers and intervention can
that he was, therefore, a arrested or convicted of contribute to reducing
repeat offender. DUI each year are repeat the likelihood of repeat
DUI offenders. A further offenses.
The offence of assault report by the National
and that of causing Library of Medicine 4. The debate over
grievous harm are almost indicated that a total of certificates of good
similar in nature and the 118 rural DUI offenders conduct Certificates
above highlighted case were interviewed, of Good Conduct,
only serves to show that approximately half also known as police

[2019] Eklr.
22

Dickson, Megan F et al. “A Comparison of First Time and Repeat Rural DUI Offenders.” Journal of offender rehabilitation vol. 52,6 (2013): 421-437.
23

doi:10.1080/10509674.2013.813616.

92 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 clearance certificates
or criminal record
checks, are official
documents issued
by law enforcement
agencies to certify an
individual's criminal
history or lack thereof.
These certificates serve
as a means to assess an
individual's past actions
and behavior, intending
to gauge their suitability
for specific opportunities
or privileges. They
Ethical behavior is essential for creating a harmonious and just environment,
also play a significant fostering trust, and maintaining the integrity of interpersonal and societal
role in evaluating a relationships.
person's suitability
for various activities,
such as employment, a security measure to and potential drawbacks.
immigration, adoption, ensure that incoming Among the benefits of
and licensing. This individuals do not pose a this requirement is that it
analysis delves deeper threat. has enhanced Security as
into the definition, c) Adoption: Adoption requiring certificates helps
purpose, pros and cons of agencies request these prevent individuals with
requiring good conduct certificates to safeguard criminal histories from
certificates, alternatives the welfare of adopted engaging in activities that
for measuring children and ensure could endanger others.
rehabilitation, and case suitable homes. These certificates further
studies from countries d) Licensing and provide valuable information,
with and without such certification: Certain enabling organizations to
certificates. professions (e.g., law make informed choices about
enforcement, healthcare) individuals' involvement.
4.1. Purpose of good and activities (e.g., gun Requiring certificates may
conduct certificates ownership) require also reduce liability by
certificates to ensure demonstrating due diligence
Good conduct certificates public safety. in evaluating candidates'
serve multiple purposes, backgrounds.
including: The concept of requiring The requirement has however
good conduct certificates been met by criticisms such as
a) Employment screening: stems from the aim to ensure the argument that accessing
Employers use these a certain level of ethical and an individual's criminal history
certificates to assess the responsible behavior from can infringe upon privacy
trustworthiness, honesty, individuals, often in the rights, potentially stigmatizing
and potential risks above-mentioned contexts. those with past convictions.
associated with hiring a While the idea is rooted It has also been argued
candidate. in the desire to maintain a that demanding certificates
b) Immigration and travel: certain standard of conduct, might hinder reintegration
Some countries mandate it also raises debates about into society, perpetuating
these certificates as its fairness, effectiveness, cycles of unemployment and

www.theplatformmagazine.co.ke SEPTEMBER 2023 93

 prospective employee. While mandatory clearance
tabling the amendment bill, certificates from the
the then Jubilee Nominated relevant entities.
MP and the sponsor of the (7) Notwithstanding
Bill Gideon Keter, argued that subsection (6), an
job-seeking should not be an employer may, where an
adventure, where job seekers employee does not satisfy
must prove that they are not the requirements under
criminals, or haven’t engaged subsection (6), withdraw
in any crime in the past. “This an offer of contract of
country is not graduating service.
criminals from universities
and colleges every year,” he Section 9(5) provides that an
argued.24 employer shall not require
a job applicant to procure
The Act under Section 9 now clearance certificates25 for
reads; which the applicant must pay
unless the employer intends
(5) In respect of to employ the applicant.
Nominated MP Bill Gideon Keter recruitment, an employer
shall not require an A further interpretation of
employee to submit any Sections 9(6) and (7) is that
recidivism and further that clearance or compliance an employer may request
requiring certificates can certificate unless such the relevant Clearance or
disproportionately affect employer intends to enter Compliance Certificates from
marginalized communities into a contract of service prospective employees only
and perpetuate systemic with the employee: upon granting them an offer
inequalities. Provided that an applicant of employment. An employer
for a state office shall is further at liberty to rescind
4.2. Implications of provide compliance or an offer of employment
eliminating clearance clearance certificates where the prospective
certificates requirement at such times in the employee is unable to
in employment recruitment or approval provide the necessary
process as they may be clearance or compliance
The Employment required. certificates. Additionally,
(Amendment) Act, No. (6) An employer who the amendment allows an
15 of 2022 amended The intends to enter into a employer to withdraw an
Employment Act, 2007 written contract of service offer if the candidate does
(the Act) to eliminate the may, in compliance satisfy the requirements set
requirement for a prospective with chapter six of the out in Chapter Six of the
employee to submit clearance Constitution, request Constitution on Leadership
or compliance certificates to a an employee to submit and Integrity.

24
Betty Njeru, ‘Why you will no longer need clearance certificates when looking for jobs’ The Standard (Nairobi, August 2022)< https://www.
standardmedia.co.ke/national/article/2001428900/why-you-will-no-longer-need-clearance-certificates-when-looking-for-jobs> accessed 16
August 2023.
25
The clearance certificates include; Police Clearance Certificate to confirm the criminal record of an individual; Credit Reference Bureau
clearance certificate to confirm the debt-standing record of an individual, the Higher Education Loans Board Certificate to ensure that the
individual has repaid their student loan, the Ethics and Anti-corruption Certificate to confirm that the individual has no record of corruption.

94 SEPTEMBER 2023 www.theplatformmagazine.co.ke

In practice and in compliance
with Chapter 6 of the
Constitution, employers in the
public sector have required
job applicants to attach
clearance certificates from
various institutions while
applying for jobs. Chapter 6 of
the Constitution requires that
persons working for the public
sector, otherwise known
as state officers, exhibit
leadership and integrity. As
a result, employers need
clearance certificates to
confirm that the employee
exhibits personal integrity, A person with integrity is known for their strong moral compass, reliability, and
competence and suitability.26 consistency in doing what is right.

While employers in the public

sector have requested for
clearance certificates, the
amendment applies to all
employers in both private and
public sectors. The Act now
places ethics and integrity at
the forefront of employment.
This change implies that
the employer will have the
ability to revoke the job
offer if a potential employee
fails the integrity and ethics
test after the evaluation of
the applicable Clearance or
Compliance Certificates.
As the discussion was
focused on the requirement
of certificates of good
conduct, and based on the
interpretation of the above
provisions, have we really
repealed altogether the said
requirement altogether?
The answer is negative; an
employer can still rescind
the contract of employment
should the prospective
employee happen to not fit
the ‘ethical and integrity’
bracket, having submitted a
certificate showing that he
or she has previously been
convicted of a crime. We are
then left with more questions
than answers.
It was argued at the time of
tabling the bill that several
individuals with a criminal
record are prejudiced and/
or discriminated against
at the time of recruitment
simply by having a criminal
record. With the current
amendment, an employer
may still rescind the contract
upon such discovery, after the
recruitment, is that still not
prejudice and discrimination?
The only difference that this
amendment has brought
is that it has lessened
the number of people
incurring costs to obtain
this certificate during the
recruitment process, those
to be offered employment
are constructively still called
upon to produce it, the
effect of which is potentially
prejudicial.
While it is important to
acknowledge that not every
individual with a criminal
record has undergone
reformation, it is equally
vital to recognize that not all
individuals with such records
pose a threat to society. To
promote fairness and equality,
there needs to be a more
nuanced approach during
recruitment that transcends

Purity Ngigi, ‘Clearance Certificates No Longer a Requirement During Recruitment’ Matthew and partners llp https://matthewandpartnersllp.
26

com/clearance-certificates-no-longer-a-requirement-during-recruitment/ accessed 16 August 20-23.

www.theplatformmagazine.co.ke SEPTEMBER 2023 95

mere judgment based on
past criminal involvement.
By adopting a broader
perspective that considers
an individual's potential
for rehabilitation and
contributions to society, we
can create a more inclusive
environment that allows for
a second chance and fair
treatment.
4.3. Alternatives for
measuring rehabilitation
Hereunder is a detailed
analysis of the alternatives
for measuring rehabilitation
instead of solely relying on
good conduct certificates.
4.3.1. Holistic
assessment
This approach entails a
comprehensive evaluation
of an individual's journey
towards rehabilitation. By
considering a range of factors,
such as their personal growth,
involvement in rehabilitation
efforts, references from
mentors or professionals,
and consistent positive
behavior, employers can gain
a deeper understanding of the
candidate's transformation.
This method goes beyond
a single document, like a
good conduct certificate, to
provide a more accurate and
holistic view of an individual's
readiness to reintegrate into
society.
4.3.2. Ban the box
By deferring the inquiry
into an applicant's criminal
history until later stages
96 SEPTEMBER 2023
of the hiring process,
employers can ensure that
initial evaluations are based
purely on qualifications and
skills. This policy promotes
fairness, granting candidates
an opportunity to showcase
their abilities before their
past is taken into account. It
prevents immediate dismissal
of candidates based on
their criminal record, giving
them a chance to be seen
as individuals with potential
beyond their past mistakes.
4.3.3. Character
references
Relying on character
references and
recommendations from
mentors, employers, or
rehabilitation professionals
offers insight into an
individual's growth and
dedication to change. These
references can shed light on
a candidate's commitment to
rehabilitation, work ethic, and
positive behavior since their
criminal involvement. This
approach shifts the focus from
the past to the present and
future potential, encouraging
employers to consider an
individual's current qualities
and contributions.
4.3.4. Counseling and
support programs
Encouraging participation
in counseling, vocational
training, and support
programs as indicators of
commitment to rehabilitation
recognizes the proactive
steps taken by individuals
to transform their lives.
This approach emphasizes
personal development and
skills acquisition, highlighting
a candidate's efforts to
improve themselves and
reintegrate into society. It
demonstrates an individual's
dedication to change and
growth, highlighting their
potential contributions to the
workplace.
Incorporating these
alternative measures into the
recruitment process promotes
a more inclusive and equitable
approach. It acknowledges
the complexity of
rehabilitation and recognizes
that individuals should not be
solely defined by their past
mistakes. By adopting these
methods, employers can tap
into a diverse pool of talent
while providing individuals
with a criminal record the
opportunity for redemption
and a chance to rebuild their
lives.
4.4. Case studies
1. United States: Various
states have "Ban the
Box" policies that delay
criminal history inquiries,
promoting fairer hiring
practices. However,
background checks
remain prevalent for
specific professions and
volunteer roles.
2. Canada: Police clearance
certificates are required
for immigration,
employment, and
volunteer activities
involving vulnerable
populations. There
is an ongoing debate
about striking a balance
www.theplatformmagazine.co.ke
 between safety and
individual rights.
3. Germany: Ban the Box
policies and legislation
put emphasise
on rehabilitation,
encouraging employers
to focus on current
qualifications and
character rather than past
convictions.
4. Norway: Norway's
progressive approach
prioritises rehabilitation,
using individual
''Ban the Box" is a campaign aimed at removing the checkbox on job applications
assessments and that asks applicants about their criminal history. The purpose of this campaign
support programs to aid is to give people with criminal records a fair chance at employment by delaying
reintegration and reduce inquiries into their criminal history until later in the hiring process.
recidivism.

To sum up, certificates of understanding of punishment Case studies from different

good conduct serve as tools
to assess an individual's
criminal history, but their use
requires careful consideration
of security, privacy, and
rehabilitation. Alternatives
such as holistic assessments,
character references, and
support programs can provide
a more balanced approach
to evaluating an individual's
suitability. Case studies from
different countries highlight
diverse strategies in striking
the balance between public
safety and individual rights.
5. Conclusion
In conclusion, the exploration
of imprisonment goals,
personal transformations, and
the debate over certificates
of good conduct reveals a
complex landscape in the
criminal justice system.
The multifaceted aims
of imprisonment, from
retribution to rehabilitation,
reflect society's evolving
and reform. While personal
transformations behind bars
are indeed possible, the
intricate interplay of factors
such as support, education,
and societal reintegration
underscores the challenges in
reducing recidivism.
The debate surrounding
certificates of good conduct
highlights the delicate
balance between public
safety and individual rights.
While these certificates can
provide valuable information
about an individual's criminal
history, their use necessitates
careful consideration of
potential stigmatization
and discrimination. The
presented alternatives for
measuring rehabilitation
offer a promising shift
towards holistic assessment
and fairer hiring practices,
acknowledging the potential
for growth and change
beyond past mistakes.
countries underscore the
diverse approaches taken to
address these complex issues,
demonstrating the nuanced
ways in which societies
navigate the tension between
maintaining security and
promoting rehabilitation. As
societies continue to evolve
and seek more effective ways
to address crime and support
reintegration, it becomes
evident that a comprehensive
and inclusive approach is
crucial to achieving a just
and balanced criminal justice
system. Ultimately, the pursuit
of a safer and more equitable
society requires a continued
exploration of these themes
and an ongoing commitment
to improving the lives of those
who have encountered the
criminal justice system.
Emma Ella Katiba is an LL. B
student at the University of Nairobi.
She can be reached via email
address katibaeella@gmail.com.

www.theplatformmagazine.co.ke SEPTEMBER 2023 97

 Wangari
wa Equity’s
remarkable journey from the
courtroom to the boardroom
98
www.theplatformmagazine.co.ke
SEPTEMBER 2023 www.theplatformmagazine.co.ke
SEPTEMBER 2023 98

By Gertrude Wachira
A
mong the women
that stand as
beacons of
inspiration in the
corporate world, we have one
Mary Wangari, commonly
known as Wangari wa Equity.
Wangari’s resilience and
willpower to succeed shine
as guiding stars, illuminating
her astounding journey from a
village girl in Nyeri to leading
one of the most prestigious
banks in Kenya. Drawing
strength from her humble
background she embraced
discipline and hard work to
transcend limitations.
Mary Wangari’s power of
resilience, hard work and
pursuit of excellence is
exemplified through her
academic life. She holds a
master’s degree in leading
Innovation and Change from
St John University in the UK
and an LL.B Degree from the
University of Nairobi. Wangari
graduated from Strathmore-
IESE Business School,
Barcelona-Spain, where
she studied the Advanced
Management Programme.
Wangari’s professional
journey began in the law field.
Fueled by her unwavering
belief in justice Mary started
a law firm, Wangari and
Co-advocates where she
practiced for 14 years before
www.theplatformmagazine.co.ke
joining Equity Bank as the
head of legal services. With
her indomitable spirit, she
rose through the ranks to
company secretary and head
of legal services in 2005.
Shattering the glass ceiling of
excellence, in 2014, Wangari
was promoted to Group
Director of Strategy, legal
services, and Group Company
Secretary a position she held
for the longest time.
Beyond law practice,
Wangari has showcased her
immense talent in leadership
by spearheading various
projects such as assisting
the bank in conversion from
Equity Building Society
to a commercial bank in
2004, setting up greenfield
operations in Tanzania, South
Sudan, and Rwanda, mobilizing
investors to amass US$185
million in 2007 and setting
up the legal and secretarial
division of the bank.
Despite her many triumphs,
Wangari admits that the
journey has not always been
as rosy, she has had to go
through challenges. For
example, a while back there
were misconceptions that
were going around about
Equity in the market when
the company was converting
from a building society bank
to being listed in the Nairobi
Stock Exchange (NSE). The
conversion was a very risky
venture however, she decided
to take the bulls by the horns.
Mary vividly remembers how
they had to put out a lot of
information about the bank
to counter the words of the
naysayers. Today, Equity beat
all the odds and is now the
largest service provider on the
bourse and the second-largest
company.
Additionally, Mary Wangari
is also passionate about
mentorship, she recently
led in the development of
the Equity Inspire program,
abbreviated as, EQUIP.
“EQUIP” is a 360-degree
intervention strategy
encompassing leadership
development, mentorship,
coaching, and capacity
building among staff to
prepare them for career
development. The program
recognizes women as the
backbone of equity’s success
and aims at providing an
environment that inspires
both men and women.
Still, in line with mentorship,
Mary has written a book called
“The Village Girl” where she
gives her story on her journey
from upbringing, chattering
her own path in her career and
cracking the glass ceiling.
Currently, Wangari is at the
pinnacle of her success in
her career, as she holds a
role as the Group Executive
Director for Equity Group
holdings. This role gives her
the authority to oversee the
management of the Group’s
banking subsidiaries in DRC
Congo, Rwanda, Uganda,
Tanzania and South Sudan.
Gertrude Wachira is a student
at Strathmore University and an
intern in this publication.
SEPTEMBER 2023 99
 Curtailing sexual misinformation
through mandatory comprehensive
sex education

By Leency Awino Ogutu

Abstract

The digital environment is

increasingly becoming an
integral part of children’s lives.
It serves various purposes
including but not limited to
education and entertainment.
Such increased exposure means
that the digital environment
is a space where children’s
rights should be protected.
Like every other Kenyan
citizen children have a right
to the freedom of expression
including the freedom to seek,
receive, or impart information
or ideas.1 The internet makes
this possible. However, not all
of the information available
there is credible and verifiable.
Misinformation is one of the
major risks that children are
exposed to in their interactions
with the digital environment.
This article focuses on sexual
misinformation as a major
challenge. At times, children are
Children using a tablet connected to the internet
exposed to explicit, confusing
and age-inappropriate content
either in the form of photos,
videos, audio and literature on
sex that could have a direct
negative impact on their lives.
However, topics surrounding
sex and sexuality are quite
sensitive, especially in regard to
discussing them with children
within the African context
since they are shrouded in
religious and moral opposition.2
Therefore children are unable to
comfortably raise their concerns
about the credibility of this
content with trusted adults.
This article takes the view that
the introduction of compulsory
comprehensive age-appropriate
sex education alongside
awareness of verifying
information on the internet
may assist to protect children
from misleading information on
sex as they navigate the digital
environment.
Introduction
Research shows that there has
been a surge in the number of
internet users over the years.
As of April 2022 there was

1
Constitution of Kenya 2010, Article 33(1)(a)
2
Doris Kathia, ‘Sexuality Education Empowers Youth, Ignorance Destroys Them’(2021) Network for Adolescent and Youth of Africa https://
nayakenya.org/2021/06/11/sexuality-eduation-empowers-youth-igornace-destroys-them/ accessed on 30 June 2023

100 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 and unreliable information.
Ultimately, they end up
acquiring and disseminating
misleading sexual and
reproductive information
among their peer groups.6 This
is quite unfortunate given
that the adoption of wrong
information often leads to
greater disadvantages in real
life.

Some may argue that

Young users might not fully understand the implications of sharing personal
information online, making them susceptible to privacy breaches and identity theft.
43% of internet penetration
in Africa. That is about
590 million users including
children who make up a third
of all internet users globally.
Within Kenya, there were
17.86 million internet users
within the first three months
of 2023 when internet
penetration was at 32.7%.3
A study by UNICEF indicates
that 67% of children between
the ages of 12 and 17 use the
internet.4 In years to come,
the number of children users
is definitely bound to grow
rapidly and greatly.
Children are naturally
curious, and as they grow
their curiosity increases. At
adolescence, children undergo
various changes as they
develop into young adults.
At this point, they become
conscious and more curious
about their bodies, sex,
sexuality and relationships.
When they lack a credible
source of information on the
same, they automatically
turn to the internet as it
is accessible, promotes
a sense of belonging,
guarantees a certain
degree of anonymity and it
provides the information in
an attractive aesthetically
pleasing manner.5 Due to their
evolving cognitive capacities,
children may not successfully
differentiate between reliable
denying children access to
the internet until they are
old enough would be a great
solution, however even those
children that lack access to
the internet still come across
such information from their
peers or age inappropriate
literature from the older
audiences they interact with
either at home or at school.7
Furthermore, internet access
to children is inevitable in this
age of digital migration and
increased internet penetration
within Kenya, Africa and the
world at large. However, the
presence of unreliable sexual
information on the internet
exposes them to inaccurate
and age-inappropriate content
as they seek answers on
their experiences leading to
misinformation.
The sections below
comprehensively discuss
how sexual misinformation
occurs on the internet,

3
Simon Kemp, Digital 2023:Kenya(2023) Data Reportal https://datareportal.com.reports/digital-2023-kenya accessed on 30 June 2023
4
Innocenti Research Brief: UNICEF 2022
5
Jahvani Sunkara, ‘Sexual Health Misinformation and Potential Interventions Among Youth on Social Media’ 1(1)(2021) The Cardinal Edge https://
ir.library.louisville.edu/tce/vol1/iss1/16 accessed on 30 June 2023
6
Steven Vosloo, ‘Digital Misinformation/disinformation and Children 10 things you need to know’ (2021) UNICEF Office of Global Insight &
Policy https://www.unicef.org/globalinsight/stories/digital-misinformation-disnformation-and-children accessed on 30 June 2023
7
‘Media, peers and misinformation’ (1996) PAC AIDS Alert bulletin https://pubmed.ncbi.nlm.nih.gov/12291523 accessed on 30 June 2023

www.theplatformmagazine.co.ke SEPTEMBER 2023 101

comprehensive sex education,
techniques of mitigating
misinformation, and their
contribution to the protection
of the child within the digital
environment.
Sexual misinformation and
the internet
There are various techniques
utilised by the internet
and social media to spread
information that contributes
to misinformation and its
retention among users.
One of the techniques is
increased emphasis on
negative consequences.
The characteristic of health
misinformation that is often
utilised by the internet and
social media creators to gain
and retain views is dread.
Dread entails the spread
of rumours that instill fear
among the consumers of such
information. This emphasis
on negative consequences
often manipulates users by
appealing to their emotions,
gaining more coverage
than scientifically accurate
information. Dread rumours
are greatly disadvantageous
since they have a long lasting
effect that ultimately has
negative impacts on internet
users.8 The damage is worse
when the users are children in
search of sexual information.
When fear is utilised to
pass information, it clouds
the critical thinking of the
receivers making it difficult
for them to better understand
sexual and reproductive
health-related concepts.9
The second technique
utilised is the propagation
of conspiracy theories.
Conspiracy theories tend
to capture and retain
the attention of internet
users faster than accurate
information. They not only
spread misinformation but
also persist even though they
lack evidence to authenticate
their claims.10 Conspiracy
theories like the emphasis on
negative consequences tend

8
Alton Chua & Snehasish Banerjee ‘Intention to Trust and Share Online Health Rumours: An Experiment with Medical Professionals’ (2018) White
Rose University Consortium https://doi.org/10.1016/j.chb.2028.05.021 accessed on 30 June 2023
9
Estelle M. Sidze and others ‘From Paper to Practice; Sexuality Education Policies and Their Implementation in Kenya’(2017) Guttmacher Institute
https://www.guttmacher.org/report/sexuality-education-kenya accessed on 30 June 2023
10
Stephan Lewandowsky and John Cook ‘The Conspiracy Theory Handbook’ (2020) The University of Nebraska Lincoln < http://sks.to/cosnpiracy>
accessed on 30 June 2023

102 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 from myth as they will easily
believe whatever sexual
information they access
on the internet. Sexual
misinformation could result
in; risky sexual behaviour
among teenagers13 ultimately
leading to increased teenage
pregnancies and the adoption
of misconceptions on sex and
sexuality.14

Comprehensive sex
education

Every child has the

Sex education in schools is a vital aspect of a comprehensive education that
aims to provide students with accurate information about sexual health,
relationships, and related topics.
to appeal to the emotions of
their consumers and hence
have a long-lasting effect and
a great potential to spread
and retain misinformation.11
The third technique is the
use of individual testimonies.
Testimonies on contraception
and unintended pregnancy,
HIV, STIs and STDs, Sexual
and reproductive physiology
tend to appeal as a more
credible source of information
than factual accurate
information. Unfortunately,
most of these individual
testimonials are usually
negative experiences laden
with misinformation.12
Therefore, children end up
basing their knowledge on
the speculation that their
experience in adolescence
might be similar to those
of persons giving out their
testimonies on social media.
Consequently, they end
up acquiring wrong, age-
inappropriate information.
The techniques outlined
above, make the dissemination
of misinformation easier
and faster. This has dire
consequences, especially
on a younger audience who
are unable to separate fact
right of access to age-
appropriate information
on health promotion,
and the prevention and
treatment of ill-health and
disease, mental health and
reproductive health. This
information should affirm
human dignity in human
relationships and promote
sexual risk avoidance.15 Age-
appropriate comprehensive
sex education falls well within
the ambits of the foregoing
statutory provisions as it
addresses the need for sexual
and reproductive health
information and services
among children.
Comprehensive sex education
provides young people with
accurate, age-appropriate
information about sexuality
and their sexual and

11
Danyl Bosomworth ‘Emotional Content to Earn More Attention’ (2014) Smart Insights https://www.smartinsights.com/content-management/
content-marketing-creative-and-formats/emotional-content-to-earn-more-attention accessed on 30 June 2023
12
Nora Anderson and others ‘Women’s Social Communication about IUDs: a Qualitative analysis’ (2014)Perspective on Sexual and Reproductive
Health https://doi.org/10.1363/46e1814 accessed on 30 June 2023
13
‘Media, peers and misinformation’ (1996) PAC AIDS Alert bulletin https://pubmed.ncbi.nlm.nih.gov/12291523 accessed on 30 June 2023
14
Angel M. Foster ‘Misconceptions and Ignorance About Sexual and Reproductive Health’ 34(11) (2009) Female Patient (Parsippany) https://www.
researchgate.net/publication/320888514_Misconceptions_and_Ignorace_About_Sexual_and_Reproductive_Health> accessed on 30 June 2023
15
Children Act 2022, Section 16(4)(a) and (e)

www.theplatformmagazine.co.ke SEPTEMBER 2023 103

reproductive health critical
for health and survival. The
programmes are required
to adhere to the United
Nations Technical guidance16
which recommends that
the programmes should be
based on an established
curriculum, scientifically
accurate, tailored for different
ages and comprehensive
in terms of coverage. They
should cover a range of
categories such as Sexual and
reproduction physiology, HIV/
STI prevention, contraception
and unintended pregnancy,
values and interpersonal
skills; Gender and sexual and
reproductive health rights17
along with topics on puberty,
physical changes, where to
access HIV/STI services,
contraceptive methods and
how to use them, prevention
of violence and sexual abuse
and equality between men
and women.18
advantages including;
decreasing the number of
young people engaging in sex
at a very young age, increasing
knowledge and promoting
positive attitudes in relation
to sexual and reproductive
health and increasing
effective and consistent
use of contraception.
This is contrary to the
myths propagated by anti-
comprehensive sex education
ambassadors that it destroys
the innocence of children by
introducing knowledge of
sexual activity at a young age.
In Kenya, the Kenya Institute
of Curriculum Development
rejected the idea of
introducing comprehensive
sex education into the school
curriculum. Citing the inability
of school-going children who
are minors to consent to any
sexual activity and that such
lessons would be tantamount
to a violation of children’s
rights as guaranteed under
the laws of Kenya. The Senior
Deputy Director in charge
of Curriculum and Research
Services Jacqueline Onyango
was specifically sceptical
about introducing lessons on
contraceptive use claiming
that such information was
inappropriate for children
in primary and secondary
schools.20
On the flip side, research
conducted in 2017 in Kenya
by the Guttmatcher Institute
uncovered a differing

In countries where
comprehensive sex education
is school-based, evidence
indicates lower teenage
pregnancy and abortion
rates, increased rates of
contraceptive use among
young people and less cases
of discrimination based on
gender differences and sexual
orientation.19 Various studies
show that comprehensive Promoting sexual health is about fostering a holistic and respectful approach to
sex education has various sexuality that considers both physical and emotional well-being.

16
Developed by UNESCO, UNFPA, UNICEF, UN Women, UNAIDS and WHO
17
Estelle M. Sidze and others ‘From Paper to Practice; Sexuality Education Policies and Their Implementation in Kenya’(2017) Guttmacher Institute
https://www.guttmacher.org/report/sexuality-education-kenya accessed on 30 June 2023, 8
18
Comprehensive sexuality education (2023) World Health Organization https://www.who.int/new-room/questions-and-answers/item/
comprehensive-sexuality-education accessed on 30 June 2023
19
Comprehensive Sexuality Education Factsheet Series (2020) Federal Centre for Health Education Germany,6
20
Lewis Nyaundi, ‘Protecting Minors: State says no to Comprehensive sex education’ The Star(Nairobi, 26 September 2021)

104 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 education and protection
within the digital
environment

In order to deal with

misinformation, there are
two major researched
interventions that are
potentially effective,
these are; corrections and
inoculation. Corrections
entail the presentation
of information to refute
an inaccurate claim or
misperception.23 Corrections
may be carried out through
the provision of highly
credible fctual information by
ensuring that children have
The digital environment has given rise to new cultural phenomena, internet access to links displaying
memes, online trends, and virtual communities that shape modern culture and expert and scientifically
societal norms.
accurate information on sex
and sexuality.
perspective from learners. learners also looked forward
According to the research to the integration of new Inoculation on the other hand,
learners in Kenya actually methods of content delivery involves the presentation
wanted more information including; the use of audio of credible, factual
on contraceptives, their visual material, the internet information in anticipation
use and where to access and social media.21 Teachers of misinformation. It is
them; including a shift agreed that the participatory more precautionary than a
in the teaching methods methods and learner-centred corrective. Here, children are
utilized during sex education methodologies aimed at equipped with knowledge
lessons. They requested for building students values beforehand, to ensure they
the abolition of the fear- and critical thinking skills are able to sieve information
inducing, authoritarian revolutionised learning by on the internet promoting
methods of teaching sex encouraging more positive the adoption of accurate
education urging teachers outcomes as opposed to full and age appropriate sexual
to adapt more participatory reliance on lectures.22 information.24
teaching methods such as
peer engagement, group Nexus between After understanding
learning and role playing. The comprehensive sexual the importance of the

21
Estelle M. Sidze and others ‘From Paper to Practice; Sexuality Education Policies and Their Implementation in Kenya’(2017) Guttmacher Institute
https://www.guttmacher.org/report/sexuality-education-kenya accessed on 30 June 2023, 27
22
‘Emerging Evidence, Lessons and Practice in CSE; A global review’ (2015) United Nations Educational, Scientific and Cultural
Organization(UNESCO)
23
Sylvia Chou and others ‘Where we go from here: Health Misinformation on social media’ (2020) American Journal of Public Health https://doi.
org/10.2105/ajph.2020.305905 accessed on 30 June 2023
24
Stephan Lewandowsky and others ‘ Misinformation and its Correction’ 13(3) (2012) Psychological Science in the Public Interest https://doi.
org/10.1177/1529100612451018 accessed on 30 June 2023, 106-131

www.theplatformmagazine.co.ke SEPTEMBER 2023 105

 In today's digital age, the rapid sharing of
information through social media, websites, and
other online platforms has amplified the spread
of misinformation.

introduction of comprehensive misinformation, children may who will be required to ask

sex education, how then
does it reinforce protection
of children within the digital
environment? The advantage
of comprehensive sex
education is that it could
serve both purposes that of
corrections and inoculation.
Depending on the children’s
age and their interaction
with the digital environment,
parents, guardians and
teachers could carry out an
evaluation to gauge the rate
of misinformation. Afterwards
they will be better equipped
to determine whether the
children would benefit most
from the corrections approach
or the inoculation approach.
Techniques of dealing with
misinformation
In order to effectively
combat the issue of sexual
be taught various skills on
how to safely navigate the
internet. First of all children
should be taught to question
all the information they
encounter on the internet.
This skill may be instilled by
raising children to become
critical thinkers, especially
though answering their
questions as they grow
and providing reasons for
taking various actions. This
will enable them to also ask
questions and seek answers
about sexual information that
they come across as they use
the internet.25
The C.R.A.P detection test
is one reliable method of
challenging misinformation
on the internet. Due to its
simplicity it is best suited for
younger audiences. The test
may be utilized by children
themselves whether the
information in question is
Current, Reliable, who are
its Authors and whether it
has Purpose or Perspective.
In case the response to any
of the questions under the
C.R.A.P test is negative,
then the information fails to
meet the threshold of factual
and accurate information
and should therefore be
disregarded lest it leads to
misinformation.26
Another technique is lateral
reading. This is especially
suitable for children between
the ages of 11 to 17. Lateral
reading entails seeking facts
or evidence on a particular
piece of information from
an alternative source just to
verify its credibility.27 This
will involve providing children
with trusted sources of sexual

25
‘Fact or Fake? How to Help kids (and adults) spot misinformation online’(2013) Children and Screens Institute of Digital Media and Child
Development https://www.childrenandscreens.com/media/press-releases/fact-or-fake-how-to-help-kids-and-adults-spot-misinformation-online/
accessed on 30 June 2023
26
Howard Rheingold Net smart: How to Thrive Online (MIT Press 2012)
27
Civil Online Reasoning https://cor.stanford.edu/ accessed on 30 June 2023

106 SEPTEMBER 2023 www.theplatformmagazine.co.ke


The internet exposes children to a wide range of content, including explicit,
violent, or otherwise inappropriate material, which can negatively impact their
emotional development.
information that they can use
to crosscheck the accuracy
of sexual information from
other online sources. The
presence of discrepancies will
allow children to flag down
inaccurate sexual information
consequently disregarding it.
Lastly, responsibility is
key in the war against
misinformation. Encouraging
children to desist from
consuming and sharing
information from unreliable
sources will go a long way
since this may spread fear
and uncertainty.28 Internet
responsibility may be
promoted through teaching
children to ensure information
is factually accurate before
sharing it online or with their
peers.29
Progress on the protection
of children within the
digital environment
in Kenya
The Kenyan government
and stakeholders have taken
various steps to ensure that
children are protected within
the digital environment. Some
of these measures include
the enactment of legislation
and the introduction of
comprehensive policy and
strategy aimed at ensuring
that the digital environment
adheres to children’s rights
as set out in conventions and
domestic statutes.30
Kenya has ratified the
Convention on the Rights
of the Child and the African
Charter on the Rights and
Welfare of the Child. In
terms of domestic statutes,
the Children Act 2022
operationalizes Article
53 of the Constitution of
Kenya 2010 which touches
on the rights of the child.
The statute has provisions
that guarantee child online
safety and may be used to
protect children from sexual
misinformation. It categorizes
the exposure of children to
emotionally traumatic and
age-inappropriate content,
information, or photos of
any kind as child abuse. The
dissemination to a child of
any material information,
education or health services
that promotes, induces,
condones or normalizes
sexual activity or behaviours
among children with children
also amounts to child abuse.31
The Act further makes it an
offence for any person to
transmit any obscene material
or otherwise make such
material accessible to children
through any electronic
system, network or other
communication technology. 32
As discussed above,
sexual misinformation
may be transmitted in the

28
Children online protection, Communications Authority of Kenya https://cop.ke-cirt.go.ke/?page_id=10#child accessed on 30 June 2023
29
Sinan Aral The Hype Machine: How Social Media Disrupts our Elections , our Economy and our Health and How we Must Adapt ( Crown, 2020)
30
Convention on the Rights of the Child: General comment No. 25 on children’s rights in relation to the digital environment (2021)
https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsqlkirKQZLK2M56RF%2F5F0vEG%2BcAAx34g-
C78FwvnmZXGFUl9nJBDpKR1dfKeKJxW2w9nNryRsgArkTJgKelqeZwK9WXzMKZRZd37nLN1bFc2t accessed on 30 June 2023
31
Children Act 2022, Section 2
32
Ibid. Section 3(b)

www.theplatformmagazine.co.ke SEPTEMBER 2023 107

The internet has transformed the way we live, work, and interact, but it also presents various challenges and
considerations when it comes to children's well-being and development.

form of exposure to age-
inappropriate, explicit and
confusing content within
the digital environment that
could end up influencing
risky sexual behaviour among
children. The techniques used
by social media to transmit
and retain misinformation
may also be described as
emotionally traumatic since
they induce fear in children.
Other laws on protection
from misinformation include;
the Computer Misuse and
Cybercrimes Act 201833
and the Data Protection Act
201934 which both criminalise
the intentional publication
and dissemination of false,
misleading or fictitious data
that misinforms with the
intent that the data shall be
considered or acted upon
as authentic. The National
Information Communications
and Technology Policy 2019
calls for measures to promote
child online protection.35
The effect of such laws and
policies is that they ensure
the internet is free from false
information that could result
in misinformation among
children who are users.
Furthermore, the
Communications Authority
of Kenya has embraced child
online protection by initiating
a programme in 2015 to bring
together various stakeholders
to equip children, parents and
guardians with information
and skills to enable them to
practice safe internet use
and minimize exposure to
risks and vulnerabilities36.
The Authority encourages
caregivers to teach their
children how to safely
navigate the internet from
an early age, as soon as the
children show interest in the
digital environment. Dealing
with the spread of untrue or
misleading information over
social media may be mitigated
through; education and
creating awareness on how to
recognize fake news and the
dangers of spreading such,
users are highly discouraged
from sharing information
they are unsure about while

32
Ibid. Section 3(b)
33
Compute Misuse and Cyber Crimes Act 2018, Section 22(1)
34
Data Protection Act 2019, Section 19(3)
35
National Information Communications and Technology policy 2019, 35
36
Children online protection, Communications Authority of Kenya https://cop.ke-cirt.go.ke/?page_id=10#child accessed on 30 June 2023

108 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 and scientifically accurate
and utilise infographics that
are attractive to a younger
audience. The Kenya Institute
of Curriculum Development
after ensuring that the
information is indeed age-
appropriate and adheres to
the United Nation’s Technical
guidelines could then publish
such information for use by
children under school-based
Comprehensive Sexuality
education.

Furthermore, the introduction

of a comprehensive sex
education curriculum will
provide guidance to parents
Competency-Based Curriculum aims to produce graduates who are better and guardians on when and
equipped to enter the workforce with practical skills, reducing the skills gap how to introduce sexual
between education and industry requirements.
education to children as
their cognitive abilities
making sure they report Curriculum within Kenya develop. The state in the
incidences to the relevant might just be the perfect performance of its functions
organizations.37 opportunity to introduce should support parents and
the comprehensive sex caregivers in the performance
In terms of the promotion education curriculum of their child-rearing
of comprehensive sex within schools. This will responsibilities. Through
education, the Kenyan provide a clear structure of promoting awareness for
government has enacted implementation, objectives of caregivers to ensure they
the National Adolescent the course, credible sources respect children’s evolving
Sexual Reproductive Health of information, the roles autonomy, capacities and
Policy under which one of of teachers, parents and privacy. Furthermore, they
the strategic objectives is to the community at large in should support parents and
increase access to Adolescent promoting comprehensive caregivers in acquiring digital
Sexual and Reproductive sex education as a mode of literacy and awareness of
Health information and age- protecting children within risks to children to assist
appropriate comprehensive the digital environment. The in the realization of their
sexuality education.38 Ministry of Education in rights including protection
conjunction with stakeholders in the digital environment.
Recommendations from the health sector could This is because they are
come up with online sources likely to come across sexual
The implementation of on sexual and reproductive misinformation as they
the Competency-Based information that are current, acquaint themselves with the

Communications Authority of Kenya: General Information Security Best Practice Guide, 9

37

National Adolescent Sexual and Reproductive Health Policy, 2015

38

www.theplatformmagazine.co.ke SEPTEMBER 2023 109

digital environment.39 Since
the education may either be
carried out by the teacher or
a parent, trust is built and the
child is comfortable enough to
address sexual misinformation
concerns with them before
discussing it with their peers
who may then contribute to
the misinformation.
Aside from utilizing the
Competency-Based
Curriculum to introduce a
comprehensive sex education
curriculum, facilitators could
utilize Information and
communication technology
(ICT) lessons to sensitize
learners on the risk of
misinformation and how to
safely navigate the digital
environment. This will
require the integration of
the techniques of dealing
with misinformation as
discussed earlier into the
existing ICT curriculum while
taking into consideration the
needs of the Kenyan child.
Children will be enabled to
approach information from
a critical point of view to
avoid believing everything
they come across on the
internet or other digital
spaces. Furthermore, they
could also receive training
on reporting mechanisms to
ensure they flag down and
report sites perpetuating
sexual misinformation. The
state should also ensure that
sites providing information on
39
Convention on the Rights of the Child: General comment No. 25 on children’s rights in relation to the digital environment (2021)
https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsqlkirKQZLK2M56RF%2F5F0vEG%2BcAAx34g-
C78FwvnmZXGFUl9nJBDpKR1dfKeKJxW2w9nNryRsgArkTJgKelqeZwK9WXzMKZRZd37nLN1bFc2t accessed on 30 June 2023
40
Ibid. part VI(a)(55)
110 SEPTEMBER 2023
the internet apply concise and
intelligible content labeling
that adequately touches
on the age appropriateness
of the content and its
credibility.40
The implementation of the
foregoing recommendations
could considerably assist
in overcoming sexual
misinformation among
children consequently
reinforcing their protection
within the digital
environment.
Conclusion
Children are an important part
of society hence their rights
must be protected whether
in the online or physical
environment. Following the
increase in their exposure
to the digital environment it
is paramount to ensure that
they are adequately protected
from any risks that they may
face therein. It is not enough
to impose restrictions on how
children utilise the internet
but letting them in on the
risks present and teaching
them how to navigate them is
quite effective. Involving the
children in their safety on the
internet is the best route to
ply.
Equipping the child with
the right information to
combat misinformation and
disinformation revolutionises
Children have the right to live, grow,
and develop to their full potential.
their protection within the
digital environment since
it is more child-centred
and it prompts them to
become wiser users and
consumers within the digital
environment. Although the
government and various
stakeholders have put
various measures in place to
guarantee child online safety,
misinformation especially
sexual misinformation
unfortunately persists.
The implementation of the
recommendations in this
article will assist to combat
the same consequently
reducing the effects that
sexual misinformation has on
children in real life.
Leency Awino Ogutu is a law
student at the University of
Nairobi Parklands Campus; she is
passionate about children’s Sexual
and Reproductive health rights. She
can be reached at:
ogutuleency@gmail.com
www.theplatformmagazine.co.ke
 The concept of odious
debts and its implications
on the African context

By Collins Tieni

Introduction

The concept of “odious debts”

has taken on a growing legal
and political significance
in the early 21st century.
Since the post-colonial era,
and continuing in recent
years, a large number of
political regime changes have
occurred, whether due to articulated in the post-World against it, etc., this debt is
war, revolution, secession, War I context, by the jurist odious for the population of
or the peaceful evolution of Alexander Nahun Sack, in the State.1 The debt is not an
societies from one form of his 1927 book The Effects obligation for the nation; it
government to another. Such of State Transformations on is a regime’s debt, a personal
transitions pervasively raise their Public Debts and Other debt of the power that has
issues of the continuity of Financial Obligations. For Sack, incurred it, consequently it
legal obligations from the old odious debts were debts falls within this power. The
regime to the new, including contracted and spent against reason these ‘odious’ debts
the disposition of debt the interests of the population cannot be considered to
obligations acquired by the of a State, without its consent, encumber the territory of the
previous regime. and with full awareness of State, is that such debts do
the creditor. If a despotic not fulfil one of the conditions
Definition of odious power incurs a debt not for that determines the legality
debts concept the needs or in the interest of of the debts of the State,
the State, but to strengthen that is: the debts of the State
The modern concept of its despotic regime, to repress must be incurred and the
odious debts was first its population that fights funds from it employed for

1
Alexander Sack, Les effets de transformations des États sur leur dettes publiques et autres obligations financières. Paris, Recueil Sirey, 1929

www.theplatformmagazine.co.ke SEPTEMBER 2023 111

the needs and in the interest
of the State. ‘Odious’ debts,
incurred and used for ends
which, to the knowledge of
the creditors, are contrary to
the interests of the nation,
do not compromise the latter
– in the case that the nation
succeeds in getting rid of the
Government which incurs
them – except to the extent
that real advantages were
obtained from these debts.

Sack believed that state

practice was such that the
doctrine of odious debts
could be said to be part of
positive international law
– a generally accepted rule
of law. However, to avoid
opportunistic use of the
doctrine in inappropriate
situations, he proposed a
process for the practical
application of the doctrine
that would be fair to all
parties:
(1) The new government
would have to prove and
an international tribunal
would have to ascertain
the following:
(a) That the needs
which the former
Government claimed in
order to contract the
debt in question, were
odious and clearly in
contradiction to the
interests of the people
of the entirety of the
former State or a part
thereof, and
(b) That the creditors, at
the moment of paying
out the loan, were
aware of its odious
purpose.
(2) Upon establishment of
these two points, the
creditors must then prove
that the funds for this
loan were not utilized
for odious purposes –
harming the people of the
entire State or part of it –
but for general or specific
purposes of the State
which do not have the
character of being odious.
Like many concepts in
international law, the
concept of odious debt has
been shaped by multiple
normative sources: formal
concepts of sovereignty
and statehood have been
influential and so have
notions of political justice
and accountability, as well
as ideas of fair dealing and
equity in contractual relations.
In recent and contemporary
treatments of odious debt,
human rights elements have
attained importance – as
they have more generally in
thinking about problems of
transitional justice.2 However,
to understand properly the
normative foundations of
the concept of odious debt,
it is necessary to bear in
mind that it constitutes a
limitation on the international
legal obligation to repay
state-to-state debts. This
obligation has generally been
articulated as based on the
notion of pacta sunt servanda,
the requirement that States
honour their agreements with
one another. However, the
concept of pacta sunt servanda
concerns treaties, that is to
say, state-to-state agreements

R Teitel, Transitional justice genealogy, 16 Harvard J. Human Rights, 2003

2

112 SEPTEMBER 2023 www.theplatformmagazine.co.ke

Corruption undermines human development, increases inequality, and hinders development. Photo: IStock
that evidence the intent of
the States in question to be
bound in international law.
When States enter into loan
contracts with other States,
do they intend that the
obligations in question be
international law obligations,
private law obligations or
both?
Equity and justice have been
brought into the disposition
of debt in the case of
succession because, both
within the main private law
systems of the world and in
public international law, they
have been long recognized as
limits or qualifications to legal
obligation – albeit limits that
typically are not expressed
as “rules”, but rather as
modifications or adjustments
H Grotius, Of the Rights of War and Peace, J. Morrice, trans. 1725.
3
DP O’Connell, State Succession in Municipal Law and International Law, Vol. I., 1967
4
www.theplatformmagazine.co.ke
to rules in individual cases.
Thus, Grotius3 held that
contracts made by the
sovereign that are of no
advantage and harmful to the
State should not be honoured,
and in particular where public
money has been pledged for
purposes that are not for the
public good. Similarly, Grotius
held that contracts made
by a usurper regime that
has overthrown a legitimate
regime should not be
honoured when the usurper
has been removed.
The African context
In light of this, it is important
to look at the African context
of odious debt and how
corruption is a major trigger
for this claim. It is no doubt
that corruption has destroyed
the economies of many
African states, but the big
question is, how is this related
to the concept of odious
debt? In order to understand
this position, we shall
consider several case studies.
The bottom line is that,
external borrowing by African
countries imposes a double
burden on these nations.
Public funds that could
be used to provide social
services, such as health care
and education, are diverted to
servicing debts some of which
fuelled capital flight4 and the
heavy debt burden makes
these countries ineligible
for external financing to
support national development
initiatives. This has been
the main cause of Africa’s
SEPTEMBER 2023 113
stagnating developments in
the global scale.

Debt is not inherently bad for

a nation. Debt is necessary
and seemingly unavoidable
if a nation seeks to develop.
African leaders justify these
debts on the basis that
large-scale infrastructural
development on the continent
is only possible with this
kind of financing. Therefore,
let us for a moment agree
with this valid argument
and concede that the debt
incurred is a necessary and
justifiable risk. There still
remains a glaring problem-
these funds continue to be
lost to corruption, re-routed
for personal use and are not
directed to the intended
projects. If these large-scale
infrastructural projects do not
come to fruition, the debts all of the official development all African states and that
incurred to fund them are assistance received by Africa IFFs are by nature secret and
no longer justifiable in any in the same period. Simply difficult to track. In the face
way. Therefore, the issue is put, the two have cancelled of these statistics it is not
not necessarily that Africa is out each other.6 To put this farfetched to say that Africa is
simply incurring debt; it is that in context, it is estimated haemorrhaging funds.
Africa is incurring debt yet that just a third of this loss
these funds are continually would have been enough to From 1970 to 2008, the
illegally diverted- the cycle of fully cover the continent’s combined foreign debt of
odious debt continues. external debt.7 Currently, The African countries rose from
United Nations Economic less than $50 billion to more
Where does the money go? Commission For Africa than $200 billion in constant
(UNECA) estimates that dollars. During the same time,
Over the last 50 years, Africa the continent loses 30 to capital flight from the 33
is estimated to have lost in 60 billion US dollars to IFFs sub-Saharan African countries
excess of 1 trillion US dollars every year.8 This is a moderate for which decent data exists
in illicit financial flows (IFFs).5 estimate considering that came to a total of $735 billion.
This is roughly equivalent to the data does not exist on In this arresting analysis, two

5
Report of the High Level Panel on Illicit Financial Flows from Africa Commissioned by the AU/ECA Conference of Ministers of Finance, Planning
and Economic Development, 13. IFFs are defined as money illegally earned, transferred or used
6
High Level Panel Report on Illicit Financial Flows, 13.
7
Ibid 91
8
Ibid 34

114 SEPTEMBER 2023 www.theplatformmagazine.co.ke

 Gabon, General Sani Abacha
of Nigeria among other
African leaders who enriched
themselves with foreign
loans and left their countries
grappling to repay the loans
at the expense of developing
their countries.12

Some of the other corruption

General Sani Abacha came into power through a military coup 1993 and ruled
Nigeria until his death in 1998.
economists show that those
numbers are closely related.
A large proportion of the
publicly contracted debt was
siphoned off by individuals,
often in key policymaking
roles, and then expatriated for
private gain. African countries
continue to lead indices of
the most corrupt nations.
In 2015, Transparency
International found Sub-
Saharan Africa to be one of
the most corrupt regions
in the world.9 Ndikumana
and Boyce estimate that as
a result, Africa, the world’s
poorest region, is actually a
net creditor to the rest of the
world.10 While people enrich
themselves with loans, the
repayment is made by hard
earned tax payers’ money
and thus the citizens end up
suffering for reasons that
are not their fault. Similar
scenarios were witnessed
with the South African
apartheid debts which were
filed for repatriation11 among
other scenarios such as
the case of Omar Bongo of
figures already alluded to
include Mobutu’s widespread
corruption in the Democratic
Republic of Congo, which left
the country’s debt burden at
14 billion US dollars by the
time he left office.13 More
recent instances of corruption
in DRC include an estimated
1.36 billion US dollars the
country lost from 2010 to
2012 in illegal mining deals
and concessions. In Nigeria,
General Sani Abacha’s is
estimated to have diverted
4.3 billion US dollars, which is
largely unrecovered today.14
The Arab Spring also exposed
the offshore assets of African
leaders. In Tunisia, President
Ben Ali’s family had hidden
an estimated 18 billion
US dollars from Tunisian
authorities15 while Libya’s
Muammar Gaddafi had hidden
assets whose conservative
estimate value stands at 200
billion US dollars.16

9
Transparency International, Corruption Perceptions Index, 2015
10
Available in <https://www.investopedia.com/terms/c/capitalflight.asp> accessed on 19 June 2023
11
J Hanlon J, Defining illegitimate debt and linking the cancellation to economic justice, Open University, 2002
12
ibid
13
A Hanauer , ‘The Odious Debt System’ Master's Theses, University of San Francisco, 2012
14
David Pallister and Peter Capella, ‘British banks set to freeze dictator's millions’ The Guardian, 18 July 2000, <http://www.theguardian.com/
uk/2000/jul/08/davidpallister?INTCMP=ILCNETTXT3487> on 19 June 2023
15
Eileen Byrne, ‘Tunisia struggles to trace up to £11bn hidden abroad by Ben Ali regime’, The Guardian, 13 January 2012 <http://www.
theguardian.com/world/2012/jan/13/tunisia-11bn-hidden-funds-ben-ali> on 19 June 19, 2023
16
Paul Richter, ‘As Libya Takes Stock, Moammar Kadafi’s Hidden Riches Astound,’ Los Angeles Times, 21 October 2011 <http://articles.latimes.
com/2011/oct/21/world/la-fg-kadafi-money20111022> on 19 June 2023

www.theplatformmagazine.co.ke SEPTEMBER 2023 115


The Late Muammar al-Qaddafi
In conclusion, it is economically
unjust for a nation to struggle
with repayment of foreign loans
which only benefited a handful
at the expense of fulfilling
international obligations. There
is need to restructure these
obligations, it is not in contention
that debts should be paid, but
they should be recovered from
the proceeds of the development
projects they advanced. In
the absence of such, those
who should be responsible for
the repayment are those who
received it based on the principal-
agent doctrine where the principle
is held liable for the debts of the
agents in his case being the state,
if there was no consent from the
citizens and if there is no proof
of any development using the
money.17
E Altvater, The Poverty of Nations: A Guide to the Debt Crisis—From Argentina to Zaire, New Jersey, Zed Books, 1991
17
116 SEPTEMBER 2023
Bibliography
Altvater E, The Poverty of Nations: A Guide to the Debt Crisis—
From Argentina to Zaire, New Jersey, Zed Books, 1991
Available in <https://www.investopedia.com/terms/c/
capitalflight.asp> accessed on 19 June 2023
Byrne E, ‘Tunisia struggles to trace up to £11bn hidden abroad
by Ben Ali regime’, The Guardian, 13 January 2012 <http://
www.theguardian.com/world/2012/jan/13/tunisia-11bn-
hidden-funds-ben-ali> on 19 June 19, 2023
Grotius H, Of the Rights of War and Peace, J. Morrice, trans.
1725.
Hanauer A, ‘The Odious Debt System’ Master's Theses,
University of San Francisco, 2012
Hanlon J, Defining illegitimate debt and linking the cancellation
to economic justice, Open University, 2002
High Level Panel Report on Illicit Financial Flows, 13.
O’Connell DP, State Succession in Municipal Law and
International Law, Vol. I., 1967
Pallister D and Capella P, ‘British banks set to
freeze dictator's millions’ The Guardian, 18 July
2000,<http://www.theguardian.com/uk/2000/jul/08/
davidpallister?INTCMP=ILCNETTXT3487> on 19 June 2023
Report of the High Level Panel on Illicit Financial Flows from
Africa Commissioned by the AU/ECA Conference of Ministers
of Finance, Planning and Economic Development, 13. IFFs are
defined as money illegally earned, transferred or used
Richter P, ‘As Libya Takes Stock, Moammar Kadafi’s Hidden
Riches Astound,’ Los Angeles Times, 21 October 2011 <http://
articles.latimes.com/2011/oct/21/world/la-fg-kadafi-
money20111022> on 19 June 2023
Sack A, Les effets de transformations des États sur leur dettes
publiques et autres obligations financières. Paris, Recueil Sirey,
1929
Teitel R, Transitional justice genealogy, 16 Harvard J. Human
Rights, 2003
Transparency International, Corruption Perceptions Index, 2015
www.theplatformmagazine.co.ke
 Unmasking the
Shakahola phenomenon
Religion as the sedative of the mind

By Pascillah Chitai

Introduction

“Yesu wangu wananiua

waangalie wananiua, Yesu uko
wapi umeniachia wauwaji.”1

This is the voice of a woman

being rescued from the
Shakohola massacre. She has
been held captive by a false
doctrine for long, instead
of her being happy that she
escaped the demise, the
opposite is seen or rather
heard. How should we
understand this, and should
we refer to it as a religious
mind-numbing effect?
In the diverse and culturally
rich landscape of Kenya,
religious beliefs have played
a profound role in shaping
society and the minds of its
people.2 The Constitution of
Multi-agency team exhumes more bodies at Shakahola Forest.
Kenya, established in 2010,
recognizes and protects the
freedom of religion, allowing
individuals to practice and
propagate their faith of
choice. While this freedom
fosters diversity, it also brings
forth questions about the
impact of religion on the
human mind and its ability
to influence social behaviour
and perception. This article
delves into the intriguing
concept of the “Shakahola
phenomena,” referring to the
phenomenon in which religion
is seen as a sedative for the
mind, potentially affecting
critical thinking, progress, and
societal development
in Kenya.
This raises a lot of questions
about whether people really
know the meaning of religion.
According to the biblical
perspective and this is seen
in James chapter two, religion

A woman rescued from Shakahola refuses treatment, update com,26 April 2023,0:04 to 1:06-<https://youtu.be/fcVIWa303eE>.
1

Jonathan Haidt, The righteous mind: Why good people are divided by politics and religion, New York Times Book Review, 2013.
2

www.theplatformmagazine.co.ke SEPTEMBER 2023 117

is helping the poor, visiting
the sick, and paying attention
to the needy. Well does this
really match what people are
doing in terms of religion?
No, I disagree because if so
Shakahola forest would not be
famous today. Is spirituality
and religion the same thing?
Not really because spirituality
allows us to embrace our
priorities in a more profound
way unlike religion.

Senate proposal on
regulation of churches and
its rejection

The Ad Hoc Committee, led

Senator Shakila Abdalla
by Senator Shakila Abdalla,
visited Vihiga County to
investigate the proliferation
of Religious Organizations
and the tragic fatalities in
Shakahola.3 The committee
interacted with victim
families who shared their
distressing experiences,
including challenges in
retrieving their deceased
relatives due to complex
identification processes and
police custody. Some families
faced stigmatization in their
communities due to the
Shakahola association. The
County Security Intelligence
Committee's report was
incomplete, prompting
the Ad Hoc Committee
to instruct collaboration
with Kilifi County to gather
comprehensive data within
two weeks.
During the visit, the Vihiga
County Religious Interfaith
Forum supported self-
regulation for religious
organizations, emphasizing
their commitment to ethical
teachings. Non-Governmental
Organizations cautioned
against regulations that might
infringe on religious freedoms
provided by the bill of rights,
emphasizing Kenya's secular
character.
The committee expressed
concern about influential
individuals exploiting
the masses under church
facades, leading to financial
predations and, in extreme
cases, homicide to conceal
misappropriation of assets.
They also visited the Vihiga
County Executive, where
Governor Wilber Otichilo
advocated for rigorous vetting
and accountability in church
registration.
The investigation revealed
ongoing leadership disputes
in several churches, such as
the Pentecostal Assemblies
of God and the African Israel
Church of Nineveh. Senators
Wakoli, Kibwana, and Nduati
accompanied Senator Abdalla,
with Senator Osotsi attending
as a committee friend.
In a separate development,
the Jesus is Alive Ministries
(JIAM) and the Repentance
and Holiness Ministries
rejected government
regulation of religious

3
Parliament of Kenya, inquiry into the Shakahola disaster: Ad hoc committee journey to Vihiga <http:/www.parliament.go.ke/index.pjp.
node/20075>.
4
Parliament of Kenya, Support self-regulation of religious institutions, Prophet Owuor tells Shakahola Committee <http://www.parliament.go.ke/
index.php/support-self-regulation-religious-institutions-prophet-owour-tells-shakahola-committee>.

118 SEPTEMBER 2023 www.theplatformmagazine.co.ke


Prophet David Owuor of Repentance and Holiness Church.
institutions following the
Shakahola deaths.4 The
presiding Bishop of JIAM
argued that existing laws
under the Societies Act
and other legislations
are sufficient to regulate
churches, and religious
matters should be left
to spiritual leaders and
organizations. She proposed
a new law to anchor
religious organizations and
a self-regulation structure
with different levels to
accommodate all faiths.
A lawyer representing Prophet
David Owuor of Repentance
and Holiness supported
self-regulation, stating that
existing laws already govern
all citizens, regardless of
religion. He emphasized that
religious leaders should set
Virkler Henry, A Christian’s Guide to Critical Thinking, United States: Wipf and Stock Publishers,2006. .
5
www.theplatformmagazine.co.ke
their own standards to which
they agree to be bound.
In conclusion, the Ad Hoc
Committee's visit to Vihiga
shed light on the distressing
aftermath of the Shakahola
disaster and revealed the
need for comprehensive data
gathering and self-regulation
within religious organizations.
Meanwhile, some religious
institutions rejected
government regulation,
advocating for self-regulation
as they believe existing laws
are sufficient to govern their
activities.
Religion and its effects
on the mind
One aspect that merits
examination is the potential
impact of religion on critical
thinking. While many religious
practices emphasize faith
and devotion, some argue
that this might lead to the
suppression of critical inquiry
and skepticism. In some cases,
religious doctrines might
discourage questioning or
challenging beliefs, leading
to a stagnant mindset
impervious to new ideas and
knowledge. As a result, this
could inhibit innovation and
progress in various spheres,
from scientific advancements
to social reforms.5
The Shakahola people were
being brainwashed and told
to follow some doctrines
that led to their demise. Here
people were told to starve
themselves in order to meet
their God. They were in
captivity and even after being
rescued some of them refused
to eat and even treated
because of the teachings they
had received from their lead,
Paul Nthenge Mackenzie.
Children who were not able to
carry out the fasting process
they were suffocated or
attacked on the head leading
them to lose their life. The
right-hand men of Paul walked
while armed just incase their
followers tried to run away; they
will “do the necessary”. What is
surprising is that their teachings
included that the children
should not attend school.
Does the scenario herein
have any limpid connection
SEPTEMBER 2023 119
to religion? Yes, maybe it
is related because people
becoming literate about their
rights and how they should
not be violated that could
lead to Mackenzie lose his
followers. This paper will lay
out how being illiterate about
religion led them to fall into
the hands of Mackenzie. What
is absurd is that Mackenzie
never did what he told his
followers, because according
to Professor Kithure Kindiki
he had a weekly food
timetable. Outside his house
there was a hole of water
meaning he ate and drunk.
According to Doctor Johansen
Oduor, the head of forensic
operations, some people
were strangled, beaten or
suffocated to death.6
Pastor Ezekiel Odero
To make matters worse,
there was evidence that Inside Shakahola forests, if organs.8 The question is
some people flew to go to one is not a member, they where the organs are. This led
shakahola forest only to meet were not granted access into us to pastor Ezekiel Odero
their death. This is violation of the forest. This was said by at some point they said he
human rights. Literature about one of the neighbors around was an accomplice of pastor
religion should be encouraged the forests. Autopsy showed Mackenzie. This suspicion
and even freely offered to starvation caused most of his derived from him receiving
avoid such kind of mass death followers’ deaths. But then money from different people
and this is not the first time left me asking myself was this from different parts of the
this is happening. This also cultism, religion or business. world. This led to the state
happen in Northern coast of Well, you will ask yourself why freezing his fifteen bank
South Africa in a place called I am mentioning business. accounts. Well, what could
Guyana where nine hundred Well through Professor lead a person to open fifteen
and fifteen lost their life Kithure Kindiki some autopsy bank accounts if he or she is
because of wrong knowledge showed that some people not receiving big amount of
about religion.7 were missing some body money.

6
Brian Mbuthia, Shakahola: Autopsies on 123 to begin next week as search and rescue operations continue, Citizen digital, May 20,
2023. <https://www.citizen.digital/news/shakahola-autopsies-on-123-bodies-to-begin-next-week-as-search-and-rescue-operations-
continue-n320071>
7
https://www.britannica.com/event/Jonestown.
8
Brian Mbuthia, Shakahola: Autopsies on 123 to begin next week as search and rescue operations continue, Citizen digital, May 20,
2023. <https://www.citizen.digital/news/shakahola-autopsies-on-123-bodies-to-begin-next-week-as-search-and-rescue-operations-
continue-n320071>.

120 SEPTEMBER 2023 www.theplatformmagazine.co.ke


Self-proclaimed pastor Paul Nthenge Mackenzie
This is sad not only in Kenya
but also in Guyana in South
America where there was
revolutional suicide where
most people lost their lives
and family member under the
leadership of James Warren
Johns. Here in Kenya Paul
Mackenzie is being charged
with mass murder, genocide
and radicalization. One is left
asking myself why Mackenzie
was released in prison over
previous arrests in the
previous years.
Religious Polarization
and Its Impact
Kenya’s diverse religious
landscape is a potential
breeding ground for religious
polarization.9 When different
religious groups advocate
strongly for their beliefs
9
Rink A & Sharma K, The Determinants of Religious Radicalization: Evidence from Kenya. The Journal of Conflict Resolution, 62(6), 1229–1261,
2018 https://www.jstor.org/stable/48596825..
www.theplatformmagazine.co.ke
and values, it can lead to
divisions within society. Such
divisions might contribute
to tensions, conflicts, and
even violence. This polarized
environment can hinder social
cohesion, which is essential
for a nation’s stability and
prosperity.
Interreligious dialogue and
understanding are crucial
in fostering a cohesive
society that embraces
diversity.10 The Constitution
of Kenya recognizes this
importance by emphasizing
the right to freedom of
expression, association, and
assembly. Citizens should
be encouraged to engage in
constructive conversations
that transcend religious
boundaries, promoting mutual
respect and appreciation for
different beliefs. By promoting
dialogue and unity, Kenya can
harness its religious diversity
as a powerful tool for national
progress and strength rather
than a source of division.
If this was the case, then the
sufferers of the massacre
could have learned from
other denominations and
had second thought about
the dreadful choice that they
made.
Constitution of Kenya
2010 – A balancing law
The Constitution of
Kenya 2010 provides a
framework that guarantees
freedom of religion while
also safeguarding the
rights and liberties of all
citizens. It promotes the
value of a united, inclusive,
and progressive society,
recognizing the importance
of striking a balance between
individual religious freedoms
and the collective welfare
of the nation. It is essential
for policymakers, religious
leaders, and citizens to work
in harmony to uphold the
spirit of the Constitution and
ensure that religious beliefs
do not become a hindrance
to the country’s growth and
development.
The preamble of the
Constitution in paragraph one
talks about acknowledging the
supremacy of the Almighty
SEPTEMBER 2023 121
God of all creation. This
only means that the citizens Freedom of worship is a
know God as their leader, fundamental human right that
and they should worship and encompasses the right to hold any
religious beliefs, engage in religious
observe his teachings only practices, and worship according
when it comes to religion. to one's own conscience without
Article 32 clearly states that interference or coercion from the
every person has the right government, social institutions or
to freedom of worship or other individuals.
rather religion.11 The right to
freedom of worship is limited
which is limited which leads
us to check article 2512 which
again directs us to article 2413
which clearly state:

(1) A right or fundamental

freedom in the Bill of Rights
shall not be limited except by
law, and then only to the extent
that the limitation is reasonable
and justifiable in an open and
democratic society based on
human dignity, equality and
freedom, taking into account all
relevant factors, including—
(a) The nature of the right or
fundamental freedom;
(b) The importance of the
purpose of the limitation;
(c) the nature and extent of
the limitation;
(d) The need to ensure
that the enjoyment of
rights and fundamental
freedoms by any
individual does not
prejudice the rights and
fundamental freedoms of
others; and
(e) the relation between the
limitation and its purpose
and whether there are
less restrictive means to
achieve the purpose.
Mackenzie has the right to
practice the right to freedom
of worship but his practicing
was prejudicing other people’s
rights. For example, article
2614 the right to life, the right
to food, the right to clothing
and the right to shelter.
This explains why the state
had to step in and take the
matter into its hands. There
is no state religion when
you look at Article 8 of the
Constitution it clearly states
the same.
In the case of Jesse Kamau
and 25 others v Attorney
General, the court stated;15
“Section 66 of the current
Constitution [Repealed
Constitution]established and
entrenched the office of Chief
Kadhi and Kadhi courts which
was to be retained under the
bomas draft in Article 9.16
Reverend Kamau and 25 others
were against this seeing that
Kenya was secular state. They
said this inclusion amounted
to discrimination of applicants
and amounted to separate
development of one religion
and religious practice thus
it was unconstitutional. The
court ruled that there was no
losers and winners and waited
for the new constitution to be
promulgated. This only means

10
Alain Wolf, Analysing Religious Discource, Cambridge University Press (2021) 197-216.
11
Constitution of Kenya, article,32.
12
Constitution of Kenya, article,25.
13
Constitution of Kenya, article,24.
14
Constitution of Kenya,article,26.
15
Jesse Kamau and 25 others v Attorney general [2010] eKLR.
16
Bomas draft of 2005, article,9.

122 SEPTEMBER 2023 www.theplatformmagazine.co.ke


Religion often provides a moral framework, offering guidelines for ethical
behavior and personal conduct. These moral teachings can shape the way
believers interact with others and make decisions.
that Kenya is a secular state
and therefore no religion should
be domineering over others.”
Recommendations
This was not the case in
the Shakahola incident. It is
essential for policymakers,
religious leaders, and citizens
to work in harmony to uphold
the spirit of the Constitution
and ensure that religious
beliefs do not become a
hindrance to the country’s
growth and development.
Emphasizing the importance
of education, promoting
interreligious dialogue,
and fostering a culture of
critical thinking can lead to
an enlightened society that
respects individual beliefs
while striving for collective
progress.
Barnes L, Education, religion and diversity: Developing a new model of religious education, (2013) 1-272
17
www.theplatformmagazine.co.ke
There’s a need for the public
to be educated. Not only
on religious matters but
also on academic matters
to increase the reasoning of
the public. This will help in
people being able to make
well-informed decisions when
they are encountered by such
exacerbating matters.
Religious education in
schools should also be able to
embrace diversity. Students
need to be taught the
importance of interreligious
activities so that they can
learn from each other and not
fall victim to religious bigotry
and dogmatism.17
Conclusion
The Shakahola Phenomena
highlights the potential impact
of religion on the human mind
and society, raising important
questions about critical
thinking, social control, and
polarization. While religion
can serve as a source of
solace and spiritual guidance,
it is essential to remain
vigilant about its influence
on individual thinking and its
broader impact on society. As
Kenya continues to progress
as a nation, respecting the
principles outlined in the
Constitution of Kenya 2010
will be crucial in nurturing an
environment that encourages
diversity, inclusivity, and
forward-thinking, ensuring
that religion acts as a force for
positive change rather than a
sedative of the mind.
Eventually, people all over
the world should be aware of
religion, what entails to be a
Christian, a Muslim, a buddha
or an atheist, and lastly a
pagan. All these should be
teachable to people. The
materials concerning the
supremacy of God should
be given to people to help
them understand whom they
should worship and what they
need to do in order to receive
salvation or rather to ‘’see
God’’.
Pascillah Chitai is a first-year
student at Kabarak Law School.
Her interest areas include but are
not limited to constitutional law,
criminal law, family law and public
international law.
SEPTEMBER 2023 123
124 SEPTEMBER 2023 www.theplatformmagazine.co.ke

KIPYEGON
From walking to school in rural Kenya
to setting world athletics alight
By Wycliffe W. Njororai Simiyu
A
ll eyes were on Faith
Kipyegon at the
2023 World Athletics
Championships in
Budapest, Hungary. That’s
because the Kenyan 1,500
metre and 5,000 metre star
broke three world records
in less than two months on
her way to Hungary, where
she lifted gold in the 1,500m
for the third year in a row as
well as winning the 5,000m
event. She became the first
woman in history to win gold
over both distances at the
championships.
As expected, Ethiopia, Uganda
and Kenya spearheaded
Africa’s hopes for medals,
continuing their dominance in
middle and distance running
events.
www.theplatformmagazine.co.ke
www.theplatformmagazine.co.ke
FAITH
Over time, Africa is earning
fewer gold medals at the
event, even from Kenya’s
famous male distance
athletes. Kipyegon, however,
bucked the trend. Considered
by many as the greatest
female 1,500m runner in
history, she is the one athlete
who has been consistent for
the last eight years.
As a sports scientist with a
research focus on Kenyan
athletics, I have followed
Kipyegon’s career with
interest. But who is she, what
drives her and how did she
manage to achieve this level
of success despite taking a
break from competing to start
a family?
World record spree
Of the last six World Athletics
Championships or Olympics
dating back to 2016, the
29-year-old Kipyegon has
only missed out on 1,500m
gold once. That was in 2019
when the championships took
place 15 months after she
gave birth to her daughter.
She has comfortably won
Olympic gold medals in 2016
and 2021 as well as her
multiple world championship
titles. She broke the 1,500m
world record in June 2023
and just a week later stunned
the stadium – and herself
– by smashing the 5,000m
world record. It was only her
third race over the distance.
Her season has simply been
outstanding – also breaking
the world record for the mile.
The 2023 World Athletics
Championships cemented
her legacy and single-season
success – which compares to
other historic feats such as
US stars Usain Bolt’s 2009
and Florence Griffith-Joyner’s
1988 performances.
Who is Faith Kipyegon?
The eighth of nine children,
Kipyegon grew up on a farm
in Ndabibit, a village in the
SEPTEMBER 2023
SEPTEMBER 125
2023 125
Faith Kipyegon reacts after winning in a past event.
Rift Valley province of Kenya.
Like many kids educated in
rural areas, she walked and
jogged many miles to and
from school. Little did she
know that this would instil
the fundamental locomotion
and physical skills that would
form the foundation of her
athletics career. This walking
is enhanced by the physical
education and sports activities
that children engage in while
in school.
By 14, Kipyegon had tried her
hand at football when, during
a physical education class,
she took part in her first 1km
race. She finished far ahead of
everyone else in class.
In the words of Kipyegon,
126 SEPTEMBER 2023
winning that race created an
awareness that she could “run
fast and be a good athlete”.
Just two years later, she came
fourth in the World Cross
Country Championships
under-19 event. At 16 she
was the youngest finisher
in the cross country top 21.
Running barefoot, she started
her winning trend at a cross-
country event the following
year and achieved 1,500m
Olympic gold in 2016.
After world 1,500m titles in
2016 and 2017, Kipyegon
took a break to give birth to
her daughter, Alyn. She faced
the conflict of many women
athletes, between family and
career. “I was so afraid, maybe
I will not come back, I will just
disappear,” she said. “I thought
it was the end of my career,
but it was the beginning.”
It took great mental strength
to take a year off and gradually
rebuild her stamina, strength
and speed. In a vibrant
comeback, she seems stronger
than ever. Winning gold at the
Tokyo Olympics and last year’s
world championships made
her the first woman to claim
four global outdoor titles in
the 1,500m, thus the greatest
female mile runner ever.
Kipyegon spends five days a
week training, separated from
Alyn and her husband Timothy
Kitum, the 2012 Olympic
www.theplatformmagazine.co.ke
 Kenya's Faith Kipyegon points to her time after setting
a world record in the women's 5,000 metres at the
Meeting de Paris Diamond League meet on Friday at
Stade Charlety. (Sarah Meyssonnier/Reuters)

800m bronze medallist, who
serves in the army in Kenya.
For all three of her world
records, she wore a bracelet
adorned with her daughter’s
name and the colours of the
Kenyan flag. Alyn wears a
matching bracelet while doing
schoolwork back home.
Well deserved victories
Her successes on the track
have brought riches to her
and her family. The Kenyan
government has rewarded her
excellent performances with
cash and a house.
going to buy a car for him. So
now I can fulfil my promise.
Kipyegon’s humble
background meant that her
parents couldn’t watch her
win gold at the 2016 Olympic
Games because they didn’t
even have electricity in their
rural home. It is inspirational
to see what her vision, focus
and application have yielded
over time. Her training
environment at Kaptagat
in Kenya also reveals her
humility. She’s part of a group
of 30 or so athletes who
largely live together and share
chores, along with marathon
world record holder Eliud
Kipchoge.
Kipyegon’s story is worth
telling. She stands as an
inspiration to countless girls
back home and, indeed, a
continent.
Wycliffe W. Njororai Simiyu is a
Professor and Chair of Kinesiology
and Health Science, Stephen F.
Austin State University

During a recent speech she
broke into tears, saying:
Now I can buy my father a car. I
promised him when I was going
to break a world record that I’m
This article was first published in The Conversation:
https://theconversation.com/faith-kipyegon-lifts-gold-
from-walking-to-school-in-rural-kenya-to-setting-
world-athletics-alight-211915

www.theplatformmagazine.co.ke SEPTEMBER 2023 127

128 SEPTEMBER 2023 www.theplatformmagazine.co.ke