The content of the manual will be jointly developed by an international expert in the field of criminal defense and a team of local experts, nominated by the national Bar associations, who are best poised to make sure that cultural and country-specific issues are tackled in the manual.  The manual will outline best practices and advocacy techniques with a focus on enhancing legal knowledge, practical defense skills – particularly trial skills, education on international norms and standards and some examples of their domestic implementation in all five countries. It will include practical tips about ways to mount a vigorous defense and include forms, checklists, and memos to help lawyers prepare and manage their cases.

It will be distributed through the national Bar Associations of the member countries and will be available online on the EALS website and IBJ’s Elearning platform. A French version will also be made available for Francophone lawyers in Rwanda and Burundi. We expect the first draft of the manual to be completed by April 2011.

Download the IBJ English/French Legal Lexicon

IBJ is committed to contributing to the growing regional integration in other ways aswell. On November 19 and 20, the EALS is hosting its Annual General Meeting (AGM) in Bujumbura, Burundi. IBJ Rwanda and Burundi Fellows John Bosco and Astère and IBJ Burundian Legal Fellows Aline Nijimbere and Janvier Ncamatwi will participate in the lively discussions that will undoubtedly take place, strengthening the relationship with the East Africa legal community. Furthermore, IBJ has produced a glossary of English/French legal terms for the use of East Africa Francophone lawyers which will facilitate the integration of Rwanda and Burundi into the Anglophone East Africa Community. We are hoping to distribute copies of the glossary at the EALS AGM.

Furthermore, this cooperation is an excellent opportunity for IBJ to establish a base to promote access to legal counsel and human rights across East African countries. With this project we have laid the first foundations for a possible East Africa Defender Resource Hub which will support – both at the national and regional level – criminal defender trainings as well as the implementation of coordinated answers to the challenges of the criminal justice system  throughout East Africa. This way, we will reduce the prevalence of torture in pretrial detention and help the accused in East Africa. Therefore, we are very excited to kickstart the development of the manual and future cooperation in East Africa and thank the International Bar Association for their support.

Above: John Bosco (left), IBJ Rwanda Fellow and Astère (right), IBJ Burundi Fellow at the EALS 2009 AGM where the foundations for cooperation between the EALS and IBJ were laid

Above: Astère (left) and Bruce Kyerere, the Uganda Law Society President at the 2009 EALS AGM (Photo by John Bosco Bugingo)

Above: Astère (right) with Dr. Fauz Twaib, the Tanzania Law Society President at the 2009 EALS AGM (Photo by John Bosco Bugingo)

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.

Follow him, emuswahili, and his JusticeMakers project developments at: http://twitter.com/ 

“Typewriter, goes teep, teep, teep, teep. It writes all of lifes stories.”

– From Merchant Ivory’s 1970 Film “Bombay Talkie” as sung by Asha Bhosle and Kisore Kumar

The Typewriter at Kibos Prison. Photo by Ian MacLellan

Kibos Prison’s documentation office is as black, white, and faded as any old photograph. The light falls heavily through the barred window and the posters on the walls have begun to fade. Sketched by a prisoner, one poster quotes Nelson Mandela; “It is said that no one truly knows a nation until one has been inside its jail…” A prison officer sits behind a pile of court records, while a prisoner, dressed in black and white stripes, works away on a worn out typewriter.

It’s the typewriter which captures my attention first. Somehow it belongs to the room; tired and heavy. While the Government of Kenya has moved to furnish prison offices with computers, Kibos has yet to acquire such technology. In fact, a computer in this room would feel rather out of place. The typewriter – donated to the prison by a local NGO, is the only machine available to the documentation office which assists over a thousand prisoners with their court proceedings.

Four hundred and fifty prisoners at Kibos are capital offenders sentenced to death row. Their only hope is to mount a successful appeal and CLEAR has been instructing prisoners on how to prepare the necessary documentation, notices of appeal, chamber summons, grounds of appeal, and affidavits. While the prisoners have become quite proficient at drafting legal documents, the task of typing it all up has proven to be the greater stumbling block.

The Documentation Office at Kibos Prison. Photo by Ian MacLellan

Each applicant is required to submit 7 copies of their application, along with copies of all previous court proceedings to the Court of Appeal within 14 days of receiving judgment. The result is a lengthy, technical, and tedious application – to be prepared within strict time constraints. Those who cannot afford an advocate draft their appeal themselves, submitting their papers to an officer to be typed on the typewriter.

While the prison staff are highly supportive, the workload is too great, and resources too few. It takes time to edit errors, to cross check records, and to type several copies. After prodding, one officer shyly confesses that it takes him 30 minutes to type each page. He has enlisted a friend to help him, but some days it is nearly impossible to submit the appeals on time.

The Prison Officer who does all the typing at at Kibos Prison. Photo by Ian MacLellan

The wheels of justice in Kenya turn very slowly, and the prisoners are no strangers to delay. But delays resulting from a prison official’s inability to prepare documents in time are particularly frustrating. Once the 14 day period has elapsed, the applicant must seek special permission from the court to hear his appeal out of time, slowing all future proceedings as a result. For those who have been sentenced to death, filing an appeal is a second chance, an opportunity to plead for leniency – and therefore, no small matter.

The weathered typewriter in Kibos Prison’s documentation office is a telling example of the systemic failures which afflict Kenya’s justice system – where even the mere task of typing can obstruct due process of law.

CLEAR Kisumu is a project of the Justice Makers Award, IBJ

A Prison Officer inside Kibos Prison. Photo by Ian MacLellan

A matatu stopped outside Lodwar to reshuffle passengers. Photo by Ian MacLellan

I can just make out the peeling yellow letters painted on the Matatu sitting next to us in traffic – We Don’t Break the Laws; We Bend Them. Matatus – old Nissan vans converted into public buses – make, break, and bend the laws on Kisumu’s streets. Notorious for their reckless driving, near accidents are a just part of the ride. And when the inevitable does occur, negotiations and a quick settlement are the accepted form of justice. Passengers sit tight, while the drivers reach a hurried agreement and get back on the road.

Matatu carwash as seen from a speeding matatu outside Oyugis. Photo by Ian MacLellan

Matatus give this city character. Conductors shout at passers-by, jump in and out of the moving vehicles, and tussle with competitors. The vans come in all colors, bright green and orange with upholstered interiors. Some are even outfitted with 30” television screens and blaring stereos. Bold statements and photographs are also an essential embellishment. Bible verses are sticker-ed up alongside oversized photos of Barack Obama and Britney Spears.

Camels strolling past a matatu outside Lodwar. Photo by Ian MacLellan

Ian and I have witnessed the construction of two new speed bumps since arriving in Kisumu, allowing pedestrians a few extra seconds to make the risky crossing. But amid the chaos there is some order. The conductor taps a fistful of change on the roof to tell the driver when to stop and go. There are numbered routes and destinations. Stroll out to the side of the road, and you are on your way in matter of minutes.

The view outside a matatu on its way to Kakuma refugee camp. Photo by Ian MacLellan

On our matatu to Oyugis courthouse we joined twenty-two people and two babies packed into a vehicle with seats for fourteen. These days, Kenyan police are cracking down on unsafe vehicles, a worthy undertaking – on our matatu back from Kakamega, the van door flew off at 80 km an hour, skidding six meters before settling down on the side of the road.

Matatu driver and conductors convene for a quick meeting to discuss what to do with the door that flew off. Photo by Ian MacLellan

We cross road blocks on nearly every outing – long wooden boards of 3” long, gnarled nails used by the police to stop vehicles for routine checks. The officers stroll up to the driver’s side and peer casually at the vehicle. They glance at Ian, the only Muzungu – white man – on board and tell him to put his seatbelt on. On these roads, matatus and police officers have a comfortable relationship. The driver promptly hands over the going rate – and the matatu is on its way.

Protestors loaded into a flatbed truck as seen from a matatu. Photo by Ian MacLellan

Matatus are perhaps the most dangerous part of our daily life, and usually the most entertaining. Drivers ride calmly on the wrong side of the road, force open new lanes, and jump off to go for a quick pee. The conductors are generally funny and friendly, with the exception of one who suffered a very real fear of swine flu. He refused to shake our hands. And a day wouldn’t be complete without at least two eager young men welcoming us to Kenya. Ian’s from America – and Kisumu is Obama’s homeland after all.

Boda Boda man as seen from a matatu outside Vihiga. Photo by Ian MacLellan

Peter Otieno Asienyo speaks at his family home in Kanyapir, Kenya – Photos by Ian MacLellan

On Tuesday, CLEAR staff visited Kanyapir, a rural settlement outside of Oyugis town. Staff interviewed Peter Otieno Asienyo, one of many Kenyans displaced by the post election violence of December last year. Asienyo described the politics of the election, the violence which followed, and the situation of IDP’s – internally displaced persons.

An estimated 350,000 people are said to have been displaced and 1,200 were killed in the violence which broke out in response to the announcement of election results which named Mwai Kibaki president. Provisions set aside by the government to support and compensate those who lost their homes and livelihoods in the post-election period have not been adequately distributed. Over a year later, many Kenyans continue to languish as the effects of the violence remain unresolved.

Remains of a building destroyed during the post-election period located outside Kisumu, Kenya 

Interview with IDP- Peter Otieno Asienyo, Kanyapir – July 07, 2009. Edited by Humera Jabir.

Where were you located at the time of the election?

I was in Naivasha during the post election violence. I went to Navaisha in February 1988. I was blessed to find a job and was able to start my own business. I used to provide scrap metals and construction building materials. I was also the chief campaigner officer for the party supporting ODM (Orange Democratic Party led by Raila Odinga) in Naivasha. Before the election, I was at our party base in Salama. I was then moved to government barracks. I was safe there, but blood is thicker then water and I needed to look for my children.

How did the violence unfold in Naivasha?

On the 27th of December, I was in Navaisha town. It was the day people started to cut off people’s necks. They were looking for Raila’s strong supporters. At around 10 PM, thirty people came to my house with pangas (machetes) and told us to lie down. I ran to save my life. I went to the house of a counselor and contacted a Major to take us to the prison camp. I traced my children and they were safe at school. One of my friends, a white man, went to the school and brought my son. My daughter remained safe at school.

I went to a prison camp at Navaisha where we were safe for a few days. We suffered a lot there. We didn’t have water. For 3 days we did not eat, drink, we could not do anything. There were a lot of people, 8-10 thousands staying at that prison camp. I have many friends that were killed. They were walking in the town and a group came and stabbed them using pangas.

Did you try to return to your home?

We went back to our homes later with prison wardens and found that everything was stolen and burnt.  I had a bicycle, a gas cooker, two sofas, a Sony radio, and a TV. My house, plot, everything was lost.  From my earnings, I bought two plots of land at 340,000 KSH in 1998. They burned everything, I have nothing now. I lost all my belongings.

Where did you go for help?

Sony Sugar, who are very good company and very good Samaritans, sent a lorry to Navaisha going back to Kisumu stadium. It was a difficult journey. There were 70 to 80 of us in the lorry. It rained heavily for most of the journey and our lorry did not have a canvass. But we were safe; we had a police officer in the lorry who escorted us.

We got home by the blessing of good Samaritans who gave us food and tea, and helped us to collect some money. We didn’t have a single cent. Those people collected us and helped us to reach home.

What assistance did you receive from the government?

I was told that I would be given 10,000 KSH in compensation but I never did. We didn’t even receive any food from the government, all the food that was brought was given to family and friends of the chief and counselors. The only food we received was from the Kenyan Red Cross, we got food from them once. I know that there was money set aside for IDP’s but the chiefs and counselors were writing the names of their relatives and friends, and the true IDP’s did not get this money.

I am an IDP, I owned land in Navaisha. We gave our report, and were promised that we would be assisted by the government with some cash and property. We never saw those things, never. I am feeling very bad because before I was not begging, but now I am begging. Before I didn’t sleep without food, and now I am sleeping without food. My children never went to a public school but now we can not afford school fees. I am feeling very bad about the government.

What action do you want the government to take now?

I want so many things. First, my property, my plots. Second, benefits for all that we have suffered. Third, I want a job – any job. I can never go back to work in Navaisha. When I think of going there it seems like I am looking into the darkness, my friends, most of them were killed.

I want the people who perpetuated the violence to be taken to The Hague. They are responsible for the death of innocent people. Kibaki himself should be taken to The Hague. I can’t take them to court because I don’t have the money. Court is money. Those who have money in court can do anything. But we did not get what we were promised, and we are still going to try.

]]> http://www.ibj.org/2009/07/night-fishing-on-lake-victoria/ Tue, 07 Jul 2009 20:52:27 +0000 http://www.ibj.org/wp_main/2009/07/07/night-fishing-on-lake-victoria/

On the lake at night with lantern trap fishermen off in the distance – Photos by Ian MacLellan 

Located on the shores of Lake Victoria, Kisumu is a city known for its fish. Lake Victoria is cool and dark at night, but the importance of fishing to the local culture led us to the lake one evening.

We joined the captain of a 10 men fishing boat for a night of fishing, wading onto the rowboat at eight in the evening and staying on board until six the following morning. We crept along the beachside keeping the lights low. The fishing industry has suffered greatly of late, and the much sought after Nile Perch and Tilapia species are in decline. The fishermen are weary of police patrols who enforce regulations by force or by payment.

Fishing here is a taxing profession. The men work all night long. They row out onto the lake, each stroke in rhythm, while the captain directs the boat from the stern. Once they reach their mark, they drop the net and row back to shore. On shore, the fishermen plant their feet firmly on the rocky lake bed and reign in the net by hand, one pull after another. Pulling in the nets alone can take over two hours. They store their catch and row out again.

We take a break on the beach while the fishermen store their boat far from prying eyes. Two fishermen wait with us; one is called Junior and claims to be eighteen years old, although he looks considerably younger. The other, a man of 32, asks us if we see now how much fishermen struggle. He explains that many fishermen are orphans, and all are poor. But hard work pays, so every night he hikes up his shorts and heads out. It’s better then stealing and ending up in jail, he says.

Sitting crouched in the bow, we become accustomed to the feel of fish beneath our feet. Looking up at the stars and across the dark lake, our eyes fall at times. The fishermen however, persist, feet dangling over the edge, they work mechanically, silently. In the end, their catch is still too small to turn a profit since most fish are too small to be sold. They will take the catch home to their families – to subsist another day.   

 Photo Ian MacLellan

On Wednesday afternoons, Peter Onyango, a Justice Makers advocate and Rodney Oluoch , a CLEAR pro bono lawyer set out to provide legal training to inmates at Kibos Prison. For two hours, the prison’s small welfare office is transformed into a makeshift law school. Fourteen students in black and white stripped uniform crowd into the small room carrying notebooks and pens provided by CLEAR. The course runs March through August, providing prisoners with practical legal training so that they can advise fellow inmates and represent themselves in court.

In true teaching style, Peter removes his jacket and asks a prisoner to remind the class where they left off last week. “It is just satisfying doing such work. What we teach them will really help them, and it is satisfying to give people a little of what you know,” said Peter. “By going to prison we are able to bring justice closer to the people who do not have access to lawyers, to those who have been denied their freedom, and who the system will never consider differently.”

Having taught the prisoners how to prepare the documents required to mount an appeal, today’s lesson addressed the procedure of an appeal hearing. The inmates questions challenge even the advocates at times. Some cite clauses by number, requiring Peter and Rodney to flip through books on Kenyan law before responding.  One prisoner has developed a new line of argument to challenge the robbery with violence charge, and the room breaks into discussion as prisoners and advocates alike test the idea.

The inmates are serious students. With limited access to law books, they have begun to transcribe the criminal procedures code by hand and hold group discussions to prepare for hearings. Many prisoners are capital offenders, convicted of either murder or robbery with violence which carries a mandatory death sentence, and will likely live and die in prison. Their only hope is to mount a successful appeal.

Peter and Rodney advise prisoners on how to prepare their documents, developing lines of argument, and representing themselves well in court. The Court of Appeal – Kenya’s highest court is very careful when confirming or dismissing a sentence. The rules are highly technical and the courts unsympathetic, so knowing the law – and how to argue it, can make all the difference.

The Kibos program is supported directly by the International Bridges to Justice – JusticeMakers grant which funds transport and material costs.   

Besides taking pictures, I have been doing a lot of planning on visiting important parts of the culture of human rights in Kenya. Humera and I will be touring the Kakuma refugee camp near the Sudan border for a week, going on a safari to experience what tourism means to Kenya, since it is such a vital part of the economy and of the international perspective of Kenya, visiting large farms and apiaries, hanging out with more children at orphanages, visiting all the other CLEAR offices in Kenya to get a wider view of the work being done and the work that needs to be done, visit churches and other religious services to help with our understanding of faith and morality in Kenya, and visit as many government, UN, and NGO offices as possible to interview and discuss political and human rights issues in Kenya.

CLEAR-Kisumu JusticeMaker Peter Onyango discussing with a client’s parents at Oyugis Court House.

Peter catching some rest after a long morning traveling to pro-bono court cases.

Outside of the Oyugis Court House

Matatu ride back from early morning court visit with Peter from the CLEAR-Kisumu JusticeMaker project.

Students at a local Kisumu secondary school participate in law clubs organized by the CLEAR-Kisumu JusticeMaker’s Project.

Local cow, while travelling to Usenge with Joan Neto, an advocate who does work for the CLEAR-Kisumu JusticeMaker’s Project. Neto is helping a local man named Henry Kissinger provide legal advice to the community and she helps him organize his legal documents. Kissinger runs a community center in Usenge, which brings internet and computers to the locals and teaches sustainable farming practices in the wake of the dying fishing industry. Usenge is historically completely economically entwined with the fisheries. Through Kissinger’s Vision 2015 plan he hopes to change that, making Usenge a tourist destination.

Henry Kissinger’s 104 year old grandmother insisted that I take her picture in this pose.

Here is where I make the departure from black and white to color. I still made the black and white editions, but just decided against it. A thunderstorm brewing outside the CLEAR-Kisumu JusticeMaker’s Project office.

Heavy rains down mainstreet Kisumu.

Thunderstorm outside the CLEAR-Kisumu JusticeMaker’s Project office.

Dennis Okore, a communications intern for the CLEAR-Kisumu JusticeMaker’s Project, sits outside the office as a storm approaches.

Children at the Kisumu Children’s Remand Home celebrate the day of the African Child. CLEAR-Kisumu JusticeMaker’s Project represents some of the children in court and was a sponsor of the event, which celebrates the rights and freedoms of African children.

Children at the Kisumu Children’s Remand Home line up for lunch.

Accounting for all the children at the Kisumu Children’s Remand Home.

Children participate in games at the Day of the African Child celebrations at Kisumu Children’s Remand Home.

The inner courtyard of Kisumu Children’s Remand Home, where the CLEAR-Kisumu JusticeMaker’s Project represents some clients and assists with legal advice.

The inner courtyard of Kisumu Children’s Remand Home, where the CLEAR-Kisumu JusticeMaker’s Project represents some clients and assists with legal advice.

Kenyan President Mwai Kibaki hangs in almost every business and government office.

Church outside Kisumu City. Religion and faith play very important roles in Kenya and you need to always keep them in the back of your mind.

Child at the New Life Hope Orphanage for 0-4 year olds. Members of the CLEAR-Kisumu JusticeMaker’s Project volunteer and visit here to help take care of the babies.

A victim of post-election violence in Kisumu. For weeks after the elections, Kisumu was constantly be burning and many major businesses were destroyed. All matters in the town came to a standstill, the streets were unsafe because of rioters and police and supplies of water and food were hard to come by.

A protestor at a demonstration against the police violence during the post-election violence. This protestor had his business destroyed as well in the conflict.

A tree at Hippo Point, Kisumu.

JusticeMaker Joy Mdivo receives her award in person from Sanjeewah.

Sanjeewah announcing that Evans is the newest JusticeMaker.

Evans at his small farm after winning the JusticeMaker competition.

A young boy carrrying water on his bike in Ukwala, a small town where the CLEAR-Kisumu JusticeMaker’s Project is working with local chiefs to organize a future legal education program in the community.

A young girl in Ukwala.

This man met me after I woke up at 5 in Ukwala to get on a motorbike for 25 minutes to go to the Nzoia river for sunrise.

The Nzoia River before dawn outside Ukwala.

Fishermen on Lake Victoria work through the night outside Usenge. The fishing industry is extremely important to coastal communities like Kisumu and Usenge, although Kisumu’s fisheries are almost completely depleted due to overfishing and the Hyacinth invasive plant. These men work through the night because they need the money, not because that is the best time to fish. Many of the men have large families and are unable to pay school fees.

Fishermen on Lake Victoria around 4 am.

The fish cover the bottom of the boats.

Fishermen working through the night on Lake Victoria.

Usenge Beach during the morning fish market.

Birds wait patiently for their chance at the fish.

Lake Victoria fishermen at Usenge Beach.

Lake Victoria fishermen at Usenge Beach.

Lake Victoria fishermen at Usenge Beach.

Beauty “Saloon” inside a women’s prison in Eldoret. Another branch of CLEAR works in the Eldoret prisons also giving legal advice and pro-bono representation.