A Yes rally in Kisumu last month drew a crowd of supporters wearing green to show their approval of the new Constitution.

The new Constitution could represent a shift for the justice system in two ways – first, it would re-organize the structure of the judiciary and the way in which judges are appointed, and second, and more importantly, in the new and much more extensive bill of rights, the rights of the accused and the imprisoned are addressed in a much more detail. In terms of restructuring the judiciary, the new Constitution provides for the establishment of a Supreme Court, which for those already convicted opens up a new avenue for possible future appeals. In terms of the appointment process, the new Constitution provides for the approval of presidential appointments to the judiciary by the National Assembly, placing at least some semblance of a check on the president’s power of appointment. Previous administrations have been accused of giving out government positions as political favors, so with approval from the National Assembly necessary as well as a committee in place to recommend appointments to the president, the appointment process will be much more transparent.

Though this box was spotted at the post office, the new appointment procedures could help curb corruption.

More important than the structure of the judiciary are the provisions in the bill of rights for those accused and those convicted and subsequently detained. For those arrested, some of the most important clauses in section 49 are that they have the right to communicate with an advocate, the right to be held separately from those already convicted, the right to be brought before a court within 24 hours, the right to be released on bond or bail pending a charge or trial unless there are compelling reasons for them to be held, and the right to remain free from remand custody if their offence carries only a fine or a maximum sentence of six months or less. Section fifty continues by elaborating the rights contained under the heading “fair hearing,” which include the right to have adequate time and facilities to prepare a defense, the right to be represented by an advocate, the right to be informed of and to have access to the evidence being used against them, and the right to have the trial begin and end without “unreasonable” delay. Finally, section 51 provides for the rights of the detained, stating that they retain all fundamental rights outlined in the Constitution except those that are incompatible with detainment, that each person has the right to petition for an order of habeas corpus, and that Parliament shall enact legislation providing for “humane treatment of those detained that takes into account relevant international human rights instruments.”

All of these clauses speak to current problems with the Kenyan justice system, particularly those that concern the timeframe within which an accused person should have an initial appearance in court and within which a trial should begin and end. One of the primary problems under the current Constitution is that trials and appeals tend to drag on for very long periods of time for a variety of reasons including the unavailability of witnesses or the lack of proper paperwork. Meanwhile, the accused languishes in remand custody for months or years, time that is sometimes not even taken into consideration during sentencing. Section 51 could be very important in improving prison conditions, addressing the major problem of prison overcrowding in its mandate of humane treatment that comports with international standards.

Peter Daniel Onyango, an attorney with CLEAR (Christian Legal Education Aid and Research) in Kisumu, addresses prisoners at Kibos Prison about what the new Constitution could mean for them. CLEAR was among the recipients of the 2008 JusticeMaker awards.

While the new Constitution could be an important step for the Kenyan justice system, some questions remain and some obvious ambiguities arise. For example, what constitutes “unreasonable delay” under section 50? Parliament may choose to further define the term “unreasonable” in a revised penal code, but it may also leave it undefined and leave the door open for long delays before and during trials. In addition, some implementation problems may arise. If accused persons are not to be held with those serving sentences and overcrowding needs to be relieved, much of the prison system would have to be reorganized and new prisons possibly constructed. These could prove daunting tasks, even with the four year allowance for implementation that the Constitution provides.

Even with these possible pitfalls and ambiguities, the proposed Constitution undoubtedly represents an improvement from the current regime. In restructuring the judiciary, along with other branches, and in providing a much more detailed bill of rights, the new Constitution is at least a step in the direction of much needed reform. Next week, Kenyan voters will determine whether they’re ready for that reform or not.

Above: Muswahili and his assistant Brown walk to a nearby forum on a typical, red clay road, often found worse for wear after heavy rains. (Photo by Rachel Roberts)

Currently operating through an NGO called NOVOK (National Organization of Volunteers of Kenya), his continuing commitment to sharing information and encouraging others to share his passion for justice is clear, and often sees him working long weeks (conducting meetings on Saturdays!) and late evenings, much as he likely did during his JusticeMaker tenure. Muswahili mentioned that once his hectic June pace slows, he wishes to return to some of his JusticeMakers work, even though his formal year is over. The forums are part of the Western Kenya Rights Support Initiative (implemented through NOVOK with the support of Amkeni WaKenya and the UNDP), which shares many of the same goals as Muswahili’s IBJ sponsored project; namely to increase political participation within rural and marginalized populations, to increase the awareness of rights and the capability to monitor and report abuses, and to provide a framework for discussing community problems, including those related to the justice system, and proposing solutions.

Above: Muswahili addresses a forum near his home. Though many of the attendees can’t read or write, they are still eager to participate and discuss community issues. (Photo by Rachel Roberts)

Ideally, the forums will also serve as a nexus for dialogue with members of local government. Muswahili envisions local and district level administrative officers being invited to and attending future meetings, where citizens would have the opportunity to bring forth problems and possible solutions and hear the government’s responses.

Walking through his hometown of Mbale and surrounding areas, it is obvious that Muswahili has created quite a network of contacts from the sheer number of people who pause to greet him and inquire about his work. An engaging speaker who has already drawn many locals to his push for justice system and governance reform, he utilizes his network to help mobilize people into groups that congregate in churches or schools (or even on a lawn in a patch of shade)

Above: Looking more like a lawn party than a meeting, Muswahili addresses a forum in Kima. (Photo by Rachel Roberts)

and wait patiently for him to arrive and explain the project’s goals and structure. He seems to be knowledgeable on just about every subject – including areas as widespread as agriculture and world politics, but his most important knowledge bases remain the people and problems of Kenya’s Western Province. Muswahili’s rapport with local communities and his familiarity with their unique problems will be a significant asset in future pushes for reform.

Even in this early phase of his current project, some successes are materializing. At their first independent meeting on June 7, the forum in Emusenjeli focused on the rights of the elderly and of widows to receive periodic government aid in the form of food. Apparently this aid often does not make it to the intended beneficiaries, but is instead lost somewhere along the way within the delivery channels. The forum was able to get the Chief (a local administrative official) on the phone to discuss the problem with him as a group and press him for assurance of delivery in the future.

Above: A particularly youthful forum near Majengo votes for interim officers to call, run, and record their next meetings. (Photo by Rachel Roberts)

Future foci for discussion include criminal justice issues, particularly in areas Muswahili deems more “cosmopolitan,” such as Ekwanda, which is near Luanda town and where a forum was formed on June 9th. Particularly striking is the fact that many people accused of crimes are held for long periods in overcrowded prisons, unaware of their legal rights and without access to an attorney. Though the overcrowding issue may not be easily addressed without a long term overhaul, with interaction between the forums and local officials, and with education coming from individuals like Muswahili, the forums may start to address the knowledge deficit among the accused with regard to their rights. Muswahili stresses that it’s important for people to view their rights as an entitlement – if, as a result of these forums, even one person is able to successfully demand justice in the form of faster adjudication or the presentation of just cause and ample evidence for arrest and detainment, he’ll likely deem them a success.

The forums are ultimately about participation, discussion, and empowerment. People who would be reluctant to act individually draw strength from numbers and it enables them to push collectively for much needed reform in the justice system and related realms of governance.