*Dominic Vincent Nkoyoyo
When the lid on Pandora’s Box is lifted, will the Catholic Church in Africa stand? In recent years, the entire Body of Christ, the Church has been severely wounded and its image badly damaged by the heavy blows inflicted upon it by sexual scandals that have rocked the Church in the West. Some members of the clergy and religious congregations and Orders have been implicated in the scandals.
In Canada sexual scandals involving some members of the clergy have been reported in several dioceses: British Colombia, Newfoundland, Ontario, Manitoba, Nova Scotia and Quebec. And reports say that the diocese of Antigonish in Nova Scotia spent at least $15 million to settle lawsuits filed by victims of sexual abuse by diocese priests dating back to 1950!
In USA, child sexual abuse scandals were first publicized nationally in 1985 when a Louisiana priest pleaded guilty to several accounts of molestation of boys. The situation worsened when five priests of the Archdiocese of Boston were charged with sexual abuse of minors. Gradually, abuses were reported in the other Catholic dioceses of United States. By 2002 it is estimated that Catholic dioceses in USA had spent a total of about one billion dollars on sexual abuse scandals! Eventually, diocese after diocese filed for bankruptcy, for the amounts of money which were required to settle the cases were too big.
Very recently, it has been the sexual scandals in the Catholic Church in Ireland which have dominated the media worldwide. Starting in the 1990s, government inquiries in this country established that hundreds of priests had abused thousands of children in previous decades. And responding to this, in March 2010 Pope Benedict XVI wrote a pastoral letter apologizing for all these scandals carried out by Catholic clergy.
These scandals have damaged the Church spiritually and crippled the finances of the Catholic Church in United States. It is reported that it is the allegations in USA which encouraged victims in other nations to come forward and rapidly create a global crisis.
But generally speaking, the Catholic Church in Africa has so far not been directly affected by these scandals. We just hear of them remotely in the media. But for how long will the situation remain like this? Is it not time that we the Church in Africa began asking ourselves some important question and learn something from what the Church in the West has gone through?
Can we affirm that no sexual scandals have taken place in the Catholic Church in Africa? Can we say that we have never heard of any stories or rumours that might point at least to the possibility that such scandals could have taken place in Africa? If such stories indeed exist, have we made any efforts to find out whether or not they contain a grain of truth? Should we come across hard evidence that such scandals have taken place, what are we going to do? Are we going to wait until we are taken to court or should we make every possible effort to settle these cases out of court? Should it be established that these cases are many, do our dioceses have enough money settle them?
But it is very important to remember that some sexual scandal cases are very complicated and, therefore, very difficult to handle. For example, it is not entirely impossible for some people to fabricate or concoct a sexual scandal case against a priest or religious brother just out of malice to damage his name or to get him out of the post he is holding so that they may occupy it themselves! Also in cases involving adult women and priests or religious we should not be tempted to think that always the women are the victims! Sometimes, these women married or unmarried are the ones who persuade the priests or religious and eventually lead them astray. In which case, it is the priests and religious who are the victims!
Cases in which children were fathered should be handled with extra care; otherwise, they can be permanently damaged psychologically as events unfold. In fact, since all the people implicated in such cases be they victims, offenders or collaborators, are already in a very difficult situation at least spiritually and psychologically, efforts should be made not worsen the situation of any of them. The main goal in handling these cases should be: getting everybody implicated healed, reconciled with God, with their inner self and with each other. If true reconciliation can be arrived at in these cases, that is an excellent sign that inner healing has taken place and all bitterness is gone.
Given the complexity of these cases, I believe it would be a good idea for all National Episcopal Conferences of Africa to put in place committees of experts to deal with them as they rise!
Fr. Dominic Vincent Nkoyoyo is from Monastery Val Notre-Dame in Canada.
Views expressed in this section do not necessarily represent the opinions of CISA
Tuesday, November 9, 2010
Friday, October 22, 2010
SPECIAL Reflection: Mission Sunday
*Fr. Celestino Bundi
Collections taken up for World Mission Sunday, gifts from individual benefactors, and contributions that come in thanks to various missionary projects, are all sent first to the respective National Offices of the Pontifical Mission Societies in each country, and then forwarded to Rome to the General Secretary's Office, to be put in a common fund, the Universal Solidarity Fund.
During the Annual General Assembly of the Pontifical Missionary Societies, normally held during the month of May, presided by the Archbishop President and the Secretary Generals of the four Societies, participants discuss hundreds of requests from all over the world for funding for building churches, chapels and local centers for apostolate, for aid and formation of seminarians and catechists, for educational projects and activities for children.
The Assembly, taking into account the available economic resources and criteria of equality and justice, decides on the distribution of the funding. Unfortunately, the Universal Solidarity Fund is never large enough to be able to respond positively to all the petitions for aid.
As we approach Mission Sunday on 24th October, it is a moment to share our faith proudly, help others to hear Jesus Christ. In addition, it is an opportunity to participate in alleviating spiritual and material poverty for our brothers and sisters living in hardship mission zones as well as practice our charity to help in building evangelization centers like schools, parish churches, convents, fathers' houses, pastoral centers among others.
As the day draws nearer I am appealing to you to create more awareness among all the faithful on their responsibility to support the church in her needs to become an effective vessel of consolation and salvation. Kindly let us join the universal church following the invitation from our baptism to unite with Pope Benedict XV1 to build ecclesial communion through financial sacrifice and prayer.
As Catholics we have a wonderful responsibility by reason of our baptism, to bring about change for the good of others in our world. But in order to do that, we need to become aware of the necessity to bring about change, first of all in ourselves, and then in our local parish communities. This is what we are asked to do by the Holy Father because people today either consciously or unconsciously wish for change and they also want "to see Jesus".
This is part of the central theme of the message: "Building Ecclesial Communion is the key to Mission" for the celebration of World Mission Sunday this year. It encourages all of us at diocesan and parish levels as well as the Institutes of Consecrated Life, Ecclesial Movements, and the entire People of God to renew our commitment to proclaim the Gospel and give pastoral activity a greater missionary character.
The Holy Father says that each one of us should enrich our lives by an ever-greater awareness of God's unconditional love for us and its experience which transforms our lives. Then through us our ever more divided societies can be changed into an ecclesial communion.
We do this by our own active and creative support within the community and by inviting others so that together we may promote "a new humanism, founded on Jesus' Gospel". "He Himself tells us: "He who loves me will be loved by my Father and I will love him and manifest myself to him" (John 14:21). It is only from this encounter with the Love of God that transforms our existence that we can live in communion with Him and among ourselves and offer our brethren a credible testimony giving reason for our hope (cf. 1 Pet 3:15).
Today people are searching for something different in the everyday confusion of our world and many of them want to "see Jesus". As a Christian community we can and should give them witness of our hope, "but that cannot be fulfilled in a credible manner without a profound personal, communal, and pastoral conversion". The messages goes on to thank missionaries for their witness and asks all of us to help to bring about an "integral renewal and to an ever greater openness to missionary cooperation among the Churches, to promote the proclamation of the Gospel in the heart of every person, every people, culture, race, nationality, in every place."
As National director of Pontifical Missionary Societies in Kenya I am obliged to promote this Mission Sunday of the Holy Father and I would like to thank everybody who is cooperating with our Diocesan Directors to ensure successful realization of our special Mission Solidarity Collection to be taken up on 24th October 2010.
As I travel through our country on course of duty to create missionary awareness I can see how our missionaries did great work. We are grateful to them, family members and their benefactors. Many parishes and institutions are today managed by our sons and daughters who need our material support to effectively address the many pastoral needs for better witnessing and service to humanity for glory of God.
Together we are the Church and we are missionaries by reason of our baptism; we are all missionaries and together we can make a difference. It is important to recognize that your kind generosity and prayers truly makes a difference and it is greatly appreciated. I assure you the money will be put into the proper use following the relevant church structures meant for its administration. Our Local Churches throughout the world could not survive without your support.
So let us, "in spite of our economic difficulties" give generously on this Mission Sunday and may we continue as one family in mission to achieve by "prayer, meditation on the Word of God, and study of the truths of the faith" an ever-greater awareness of God's unconditional love for all of us as brothers and sisters.
You may give your donation to your parish priest on Sunday for submission to the Bishop and eventually forwarding to our office or You may write a cheque addressed to:
Pontifical missionary societies
P.O Box 48062-00100 Nairobi
On behalf of Holy Father Pope Benedict XV1, International PMS Secretariat especially Rev. Fr. Timothy Lehane Barrett, SVD, Secretary General of the Propagation of the Faith Rome, our PMS National office and Rt. Rev. Anthony Ireri Mukobo Bishop Chairman Commission for Missions I wish you a fruitful celebration of this important day in our missionary work. May God bless you and increase your faith.
*He is the National Director Ponitifcal Missionary Societies- Kenya
Collections taken up for World Mission Sunday, gifts from individual benefactors, and contributions that come in thanks to various missionary projects, are all sent first to the respective National Offices of the Pontifical Mission Societies in each country, and then forwarded to Rome to the General Secretary's Office, to be put in a common fund, the Universal Solidarity Fund.
During the Annual General Assembly of the Pontifical Missionary Societies, normally held during the month of May, presided by the Archbishop President and the Secretary Generals of the four Societies, participants discuss hundreds of requests from all over the world for funding for building churches, chapels and local centers for apostolate, for aid and formation of seminarians and catechists, for educational projects and activities for children.
The Assembly, taking into account the available economic resources and criteria of equality and justice, decides on the distribution of the funding. Unfortunately, the Universal Solidarity Fund is never large enough to be able to respond positively to all the petitions for aid.
As we approach Mission Sunday on 24th October, it is a moment to share our faith proudly, help others to hear Jesus Christ. In addition, it is an opportunity to participate in alleviating spiritual and material poverty for our brothers and sisters living in hardship mission zones as well as practice our charity to help in building evangelization centers like schools, parish churches, convents, fathers' houses, pastoral centers among others.
As the day draws nearer I am appealing to you to create more awareness among all the faithful on their responsibility to support the church in her needs to become an effective vessel of consolation and salvation. Kindly let us join the universal church following the invitation from our baptism to unite with Pope Benedict XV1 to build ecclesial communion through financial sacrifice and prayer.
As Catholics we have a wonderful responsibility by reason of our baptism, to bring about change for the good of others in our world. But in order to do that, we need to become aware of the necessity to bring about change, first of all in ourselves, and then in our local parish communities. This is what we are asked to do by the Holy Father because people today either consciously or unconsciously wish for change and they also want "to see Jesus".
This is part of the central theme of the message: "Building Ecclesial Communion is the key to Mission" for the celebration of World Mission Sunday this year. It encourages all of us at diocesan and parish levels as well as the Institutes of Consecrated Life, Ecclesial Movements, and the entire People of God to renew our commitment to proclaim the Gospel and give pastoral activity a greater missionary character.
The Holy Father says that each one of us should enrich our lives by an ever-greater awareness of God's unconditional love for us and its experience which transforms our lives. Then through us our ever more divided societies can be changed into an ecclesial communion.
We do this by our own active and creative support within the community and by inviting others so that together we may promote "a new humanism, founded on Jesus' Gospel". "He Himself tells us: "He who loves me will be loved by my Father and I will love him and manifest myself to him" (John 14:21). It is only from this encounter with the Love of God that transforms our existence that we can live in communion with Him and among ourselves and offer our brethren a credible testimony giving reason for our hope (cf. 1 Pet 3:15).
Today people are searching for something different in the everyday confusion of our world and many of them want to "see Jesus". As a Christian community we can and should give them witness of our hope, "but that cannot be fulfilled in a credible manner without a profound personal, communal, and pastoral conversion". The messages goes on to thank missionaries for their witness and asks all of us to help to bring about an "integral renewal and to an ever greater openness to missionary cooperation among the Churches, to promote the proclamation of the Gospel in the heart of every person, every people, culture, race, nationality, in every place."
As National director of Pontifical Missionary Societies in Kenya I am obliged to promote this Mission Sunday of the Holy Father and I would like to thank everybody who is cooperating with our Diocesan Directors to ensure successful realization of our special Mission Solidarity Collection to be taken up on 24th October 2010.
As I travel through our country on course of duty to create missionary awareness I can see how our missionaries did great work. We are grateful to them, family members and their benefactors. Many parishes and institutions are today managed by our sons and daughters who need our material support to effectively address the many pastoral needs for better witnessing and service to humanity for glory of God.
Together we are the Church and we are missionaries by reason of our baptism; we are all missionaries and together we can make a difference. It is important to recognize that your kind generosity and prayers truly makes a difference and it is greatly appreciated. I assure you the money will be put into the proper use following the relevant church structures meant for its administration. Our Local Churches throughout the world could not survive without your support.
So let us, "in spite of our economic difficulties" give generously on this Mission Sunday and may we continue as one family in mission to achieve by "prayer, meditation on the Word of God, and study of the truths of the faith" an ever-greater awareness of God's unconditional love for all of us as brothers and sisters.
You may give your donation to your parish priest on Sunday for submission to the Bishop and eventually forwarding to our office or You may write a cheque addressed to:
Pontifical missionary societies
P.O Box 48062-00100 Nairobi
On behalf of Holy Father Pope Benedict XV1, International PMS Secretariat especially Rev. Fr. Timothy Lehane Barrett, SVD, Secretary General of the Propagation of the Faith Rome, our PMS National office and Rt. Rev. Anthony Ireri Mukobo Bishop Chairman Commission for Missions I wish you a fruitful celebration of this important day in our missionary work. May God bless you and increase your faith.
*He is the National Director Ponitifcal Missionary Societies- Kenya
Tuesday, October 12, 2010
Analysis of the Counter Trafficking in Persons Bill in Kenya in the Light of Morality, Legality and Culture
*Beginning today we will bring you the above analysis in a two part series courtesy of concerned Catholics in Kenya
History of the Bill
Back in 2004 Kenya ratified the Palermo protocol. In 2007 the government with the help of IOM developed a national plan of action to counter human trafficking. This plan cantered on government ministries and had an opening for the civil society participation. It elaborated activities in prevention, protection and prosecution (commonly known as the 3P). However, the main stumbling block towards the implementation of this plan was the lack of a specific legal instrument. From 2008 to 2009, efforts were intensified to prepare a Kenyan bill to counter human trafficking in and out of the country. The organization that steered this process is known as The Cradle. The preparation of the bill was not easy as earlier versions of the bill were not accepted by the Attorney General. However, by December 2009 the refined bill had been forwarded to the speaker of the national assembly and it underwent the first reading. On the 15th of June it underwent a second reading as a private members bill. On the 6th of July 2010 the third reading was done and the bill was passed. It is currently with the Attorney General of the republic pending its being forwarded to the president who will sign and make it a law of the republic. Our hope remains that the president signs the bill soon enough so that we may have a legal framework in which to prosecute human traffickers.
Rationale
The principal object of the bill is to implement Kenyas obligations under the UN Conventions against Transnational Organized Crime including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children and all other relevant international conventions to which Kenya is party. The Bill further seeks to establish the necessary institutional mechanisms for the protection and support of trafficked persons and to ensure just and effective punishment of traffickers.
It outlines the offence of trafficking in persons and related offences. This will be very important as once this bill is passed onto a law, it will serve as an important reference to bring human traffickers to book and it could forbid child labour, forced detention for exploitative purposes such as labour and sexual exploitation of women and children. The bill is comprehensive enough in curbing various forms of exploitation that occur within the chain process of human trafficking here in referred to as recruiting, transporting, transferring, harbouring and receiving (RTTHR henceforth). Some of the past laws related to trafficking of children and women include the Immigration Act 1984, Penal Code 1985, Employment Act 2007, Sexual Offences Act 2006, Children Act 2001, Education Policy, Adoption Guidelines, Vision 2030, Childrens Policy and draft national policy on orphans and vulnerable children.
The existence of various bills meant that there was no particular reference frame for the offence of human trafficking. In Kenya, bringing culprits of human trafficking to justice has always been an uphill task because of the lack of this legal framework. Stakeholders of the bill therefore, hope that the government will move swiftly to pass it into law.
The offence of Human Trafficking
In accordance with the Bill the offences of trafficking in persons to include:
trafficking in persons
acts that promote child trafficking
promotion of trafficking in persons
acquisition of travel documents by fraud or misrepresentation
facilitating entry into and exit out of the country
interfering with documents and travel effects
life threatening circumstances or death and lastly
trafficking in persons for organized crime.
i. Trafficking in personssimply defined by the bill as recruiting, transporting, transferring, harbouring and receiving (RTTHR) another person for the purpose of exploitation by means of
a) threat or use of force or other forms of coercion b) abduction, c) fraud, d) deception, e) abuse of power or position of vulnerability, f) giving payments or benefits to obtain the consent of the victim of trafficking in persons and g) giving or receiving payments or benefits to obtain the consent of a person having control over another person.
The bill considers irrelevant the consent of the trafficked person. RTTHR of a child for purposes of exploitation is considered trafficking in persons too. The bill takes into account acts of trafficking committed internally within the borders of Kenya or internationally across the borders of Kenya. The ultimate penalty is life imprisonment in subsequent convictions. If found guilty, one is liable to fifteen years imprisonment or to a fine of five million shillings or to both.
ii. The bill defines child trafficking as adopting, fostering and offering guardianship to a child for human trafficking purposes. This offence is punishable by a fine of not less than fifteen years of a fine Kshs. 10 million or both. Subsequent conviction could lead to life imprisonment.
iii. Promotion of trafficking in persons occurs when knowingly a person gives his/her premises for human trafficking purposes; publishes or imports or exports materials to promote human trafficking; or promoting trafficking in persons in any other way. The punishment for this is ten years imprisonment and a fine of Ksh. 5million or both. Upon subsequent convictions the imprisonment term is fifteen years without the option for a fine.
iv. Facilitating entry into or exit out of the country occurs when a person facilitates aids or abets the exit or entry of persons from or to the country at international airports, territorial boundaries for purposes of trafficking in persons. The punishment is as iii above but on subsequent convictions one is liable for 10 years.
v. Interfering with travel documents and personal effects includes a) confiscating, concealing, altering, destroying or using identification or travel documents of another person in furtherance of trafficking in persons or b) ) confiscating, concealing, altering, destroying or using personal effects of another person or threatening to do so in furtherance of trafficking in persons or in order to prevent that other person from leaving the country or seeking redress from government or appropriate agencies. Punishment is as iv above.
vi. Life threatening circumstances or death: If during the commission of a human trafficking offence the victim suffers life threatening bodily harm that is permanent or dies or is afflicted with life threatening health condition; the person convicted shall be liable for life imprisonment.
vii. Trafficking in persons for organized crime: occurs when a person engages in trafficking in persons as part of an organized criminal group or the person organizes and directs other persons to commit an offence as an activity of an organized group. The punishment for this is imprisonment for life.
An omission in this section includes the treatment of diplomats. Diplomatic immunity is also a factor in many cases of human trafficking . The Bill has not addressed this issue. This means that the person should be separable when it comes to the commission of criminal acts. The miscellaneous section of the Bill however criminalizes acts by government officers facilitating the acquisition of travel documents for purposes of human trafficking.
Victim Protection
In recognition of the fact that victims of trafficking pass through horrendous experiences during their ordeals the bill provides for their privacy during hearings. The courts may even decide that some of the sessions be held in camera. It is, therefore, important in this case that those who bring a suit on behalf of the victim to the courts (i.e. the state) understand fully the circumstances that the victim passed through so as a determination may be made as to whether the sessions should be held in camera or not. This requires good level of competence in dealing with cases of this nature.
The Bill also proposes that publishing the proceedings held in camera is an offence. The court apart from imprisoning the culprit may also order him or her to compensate the victim. The victim is also given immunity from prosecution. While this immunity is important for the genuine victims, care must be taken that it is not used as a loophole to advance criminal activities. The bill empowers the minister in charge of gender formulate plans for the provision of appropriate services for victims of trafficking in the light of the 3Ps. In order to help the victim find recourse the bill provides that
The victim will be eligible to work during their duration of necessary presence in Kenya
Remain in Kenya until their legal proceeding are concluded
Be communicated to in a language he/she understands
Exempted from court fines
Assistance in repatriation
So far, there are many challenges in todays Kenya as far as victim assistance is concerned. It will be important to ensure that the legal system is made to work faster in cases of this nature so as it does not become burdensome for a victim taking time in Kenya waiting for justice. Secondly, there are very few safe havens for trafficking victims. At times, victims have been placed in police custody while waiting for the final recourse. Repatriation always poses a challenge; is it enough to give the victim money to go home or to put him/her in an efficient transport means back home? Certainly not, as the victim will need to be assisted reintegrate back to her/his original society fully. Reintegration is first self restoration and second, the ability to fit into the society. It must be observed here that the victim coming from a trafficking ordeal might have been subjected to a heavy legal ordeal and other energy draining ordeals in a strange place. Many a time they experience shame and bitterness which is directed to their home societies. Hence the costs of rehabilitation and reintegration are just too enormous and can only be met superficially in order to fully meet the needs of the victims. Lastly, issues of psycho social accompaniment in order to help the victim deal with the aftermath effects of trauma are important; including psychological counselling and religious accompaniment.
Views expressed in this section do not necessarily represent the opinions of CISA
History of the Bill
Back in 2004 Kenya ratified the Palermo protocol. In 2007 the government with the help of IOM developed a national plan of action to counter human trafficking. This plan cantered on government ministries and had an opening for the civil society participation. It elaborated activities in prevention, protection and prosecution (commonly known as the 3P). However, the main stumbling block towards the implementation of this plan was the lack of a specific legal instrument. From 2008 to 2009, efforts were intensified to prepare a Kenyan bill to counter human trafficking in and out of the country. The organization that steered this process is known as The Cradle. The preparation of the bill was not easy as earlier versions of the bill were not accepted by the Attorney General. However, by December 2009 the refined bill had been forwarded to the speaker of the national assembly and it underwent the first reading. On the 15th of June it underwent a second reading as a private members bill. On the 6th of July 2010 the third reading was done and the bill was passed. It is currently with the Attorney General of the republic pending its being forwarded to the president who will sign and make it a law of the republic. Our hope remains that the president signs the bill soon enough so that we may have a legal framework in which to prosecute human traffickers.
Rationale
The principal object of the bill is to implement Kenyas obligations under the UN Conventions against Transnational Organized Crime including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children and all other relevant international conventions to which Kenya is party. The Bill further seeks to establish the necessary institutional mechanisms for the protection and support of trafficked persons and to ensure just and effective punishment of traffickers.
It outlines the offence of trafficking in persons and related offences. This will be very important as once this bill is passed onto a law, it will serve as an important reference to bring human traffickers to book and it could forbid child labour, forced detention for exploitative purposes such as labour and sexual exploitation of women and children. The bill is comprehensive enough in curbing various forms of exploitation that occur within the chain process of human trafficking here in referred to as recruiting, transporting, transferring, harbouring and receiving (RTTHR henceforth). Some of the past laws related to trafficking of children and women include the Immigration Act 1984, Penal Code 1985, Employment Act 2007, Sexual Offences Act 2006, Children Act 2001, Education Policy, Adoption Guidelines, Vision 2030, Childrens Policy and draft national policy on orphans and vulnerable children.
The existence of various bills meant that there was no particular reference frame for the offence of human trafficking. In Kenya, bringing culprits of human trafficking to justice has always been an uphill task because of the lack of this legal framework. Stakeholders of the bill therefore, hope that the government will move swiftly to pass it into law.
The offence of Human Trafficking
In accordance with the Bill the offences of trafficking in persons to include:
trafficking in persons
acts that promote child trafficking
promotion of trafficking in persons
acquisition of travel documents by fraud or misrepresentation
facilitating entry into and exit out of the country
interfering with documents and travel effects
life threatening circumstances or death and lastly
trafficking in persons for organized crime.
i. Trafficking in personssimply defined by the bill as recruiting, transporting, transferring, harbouring and receiving (RTTHR) another person for the purpose of exploitation by means of
a) threat or use of force or other forms of coercion b) abduction, c) fraud, d) deception, e) abuse of power or position of vulnerability, f) giving payments or benefits to obtain the consent of the victim of trafficking in persons and g) giving or receiving payments or benefits to obtain the consent of a person having control over another person.
The bill considers irrelevant the consent of the trafficked person. RTTHR of a child for purposes of exploitation is considered trafficking in persons too. The bill takes into account acts of trafficking committed internally within the borders of Kenya or internationally across the borders of Kenya. The ultimate penalty is life imprisonment in subsequent convictions. If found guilty, one is liable to fifteen years imprisonment or to a fine of five million shillings or to both.
ii. The bill defines child trafficking as adopting, fostering and offering guardianship to a child for human trafficking purposes. This offence is punishable by a fine of not less than fifteen years of a fine Kshs. 10 million or both. Subsequent conviction could lead to life imprisonment.
iii. Promotion of trafficking in persons occurs when knowingly a person gives his/her premises for human trafficking purposes; publishes or imports or exports materials to promote human trafficking; or promoting trafficking in persons in any other way. The punishment for this is ten years imprisonment and a fine of Ksh. 5million or both. Upon subsequent convictions the imprisonment term is fifteen years without the option for a fine.
iv. Facilitating entry into or exit out of the country occurs when a person facilitates aids or abets the exit or entry of persons from or to the country at international airports, territorial boundaries for purposes of trafficking in persons. The punishment is as iii above but on subsequent convictions one is liable for 10 years.
v. Interfering with travel documents and personal effects includes a) confiscating, concealing, altering, destroying or using identification or travel documents of another person in furtherance of trafficking in persons or b) ) confiscating, concealing, altering, destroying or using personal effects of another person or threatening to do so in furtherance of trafficking in persons or in order to prevent that other person from leaving the country or seeking redress from government or appropriate agencies. Punishment is as iv above.
vi. Life threatening circumstances or death: If during the commission of a human trafficking offence the victim suffers life threatening bodily harm that is permanent or dies or is afflicted with life threatening health condition; the person convicted shall be liable for life imprisonment.
vii. Trafficking in persons for organized crime: occurs when a person engages in trafficking in persons as part of an organized criminal group or the person organizes and directs other persons to commit an offence as an activity of an organized group. The punishment for this is imprisonment for life.
An omission in this section includes the treatment of diplomats. Diplomatic immunity is also a factor in many cases of human trafficking . The Bill has not addressed this issue. This means that the person should be separable when it comes to the commission of criminal acts. The miscellaneous section of the Bill however criminalizes acts by government officers facilitating the acquisition of travel documents for purposes of human trafficking.
Victim Protection
In recognition of the fact that victims of trafficking pass through horrendous experiences during their ordeals the bill provides for their privacy during hearings. The courts may even decide that some of the sessions be held in camera. It is, therefore, important in this case that those who bring a suit on behalf of the victim to the courts (i.e. the state) understand fully the circumstances that the victim passed through so as a determination may be made as to whether the sessions should be held in camera or not. This requires good level of competence in dealing with cases of this nature.
The Bill also proposes that publishing the proceedings held in camera is an offence. The court apart from imprisoning the culprit may also order him or her to compensate the victim. The victim is also given immunity from prosecution. While this immunity is important for the genuine victims, care must be taken that it is not used as a loophole to advance criminal activities. The bill empowers the minister in charge of gender formulate plans for the provision of appropriate services for victims of trafficking in the light of the 3Ps. In order to help the victim find recourse the bill provides that
The victim will be eligible to work during their duration of necessary presence in Kenya
Remain in Kenya until their legal proceeding are concluded
Be communicated to in a language he/she understands
Exempted from court fines
Assistance in repatriation
So far, there are many challenges in todays Kenya as far as victim assistance is concerned. It will be important to ensure that the legal system is made to work faster in cases of this nature so as it does not become burdensome for a victim taking time in Kenya waiting for justice. Secondly, there are very few safe havens for trafficking victims. At times, victims have been placed in police custody while waiting for the final recourse. Repatriation always poses a challenge; is it enough to give the victim money to go home or to put him/her in an efficient transport means back home? Certainly not, as the victim will need to be assisted reintegrate back to her/his original society fully. Reintegration is first self restoration and second, the ability to fit into the society. It must be observed here that the victim coming from a trafficking ordeal might have been subjected to a heavy legal ordeal and other energy draining ordeals in a strange place. Many a time they experience shame and bitterness which is directed to their home societies. Hence the costs of rehabilitation and reintegration are just too enormous and can only be met superficially in order to fully meet the needs of the victims. Lastly, issues of psycho social accompaniment in order to help the victim deal with the aftermath effects of trauma are important; including psychological counselling and religious accompaniment.
Views expressed in this section do not necessarily represent the opinions of CISA
Friday, October 8, 2010
Islam's position on homosexuality
*Dr. Abu Ameenah Bilal Phillips
Homosexuality and lesbianism have been dubbed 'alternative lifestyles', 'personal preference', 'natural variation', etc. In the West today, where homosexuality was once considered an illness by the Association of Psychiatrists, it has now been removed from the list and replaced by homophobia (the dislike of homosexuals and homosexuality).
Consequently, Islam and Muslims are considered intolerant and biased due to their continued opposition. Arguments in favour of tolerance towards homosexuals are based on the assumption that homosexual behaviour is biologically based and not merely learned from society.
Early opposition to homosexuality was based on the argument that such behaviour was unnatural. Sodomy cannot produce children, which is one of the main natural consequences of sexual relations. 'Mother Nature' did not make us that way, it was argued. To counter such arguments, homosexual researchers scoured the earth until they found supposed homosexual behaviour among the animal kingdom.
They found that the males of some species of exotic fishes off the coast of Japan imitated the behaviour of females of the species in order to prevent other males from impregnating their mates, and some rare butterflies from islands off the coast of Africa also had males exhibiting female behaviour during mating season, etc. However, if the animal kingdom is to be used to justify human behaviour, there also exists a spider in South America whose female is much larger than the male. When mating is complete, the female eats her mate.
During the 1980’s it was claimed that a gland in the base of the brain which is small in women and large in men was found to be small among homosexuals. However, this evidence, while seeming incontrovertible to the layman, was immediately refuted by scientists.
The data was taken from cross-sections of the brains of dead adult humans whose sexual preference was identified prior to death. Consequently, the reduced size of that gland among homosexuals could have been a result of the practice and not its cause.
That is, they could have been born with normal-sized glands which then became small due to their deviant lifestyle. Recently, genetics has become the most commonly used foundation for the pro-gay argument. In 1993 Dr. Dean Hamer, a researcher at the National Cancer Institute, claimed to have discovered 'the first concrete evidence that ‘gay genes’ really do exist.'
Homosexual orientation was supposedly transmitted to males on the X chromosome from the mother. Hamer’s findings, published in the prestigious journal 'Science', transformed his colourless career as a government scientist into a dynamic media personality and he penned his memoirs. He gave expert testimony to the Colorado Supreme Court that formed the basis of the victorious decision striking down anti-gay propositions.
However, a replication of his study at the University of Western Ontario failed to find any linkage whatsoever between the X chromosome and sexual orientation. It was also found that Hamer’s study lacked a control group; a fundamental principle of scientific research.
Furthermore, in June 1994, the Chicago Tribune reported that a junior researcher in Hamer’s laboratory, who assisted in the gene mapping in the homosexuality study, alleged that he selectively reported his data. She was then summarily dismissed from her post-doctoral fellowship in Hamer’s lab. But a National Institute of Health investigation substantiated her claims and gave her another position in a different lab.
Though Dr. Hamer was coy about his own sexuality in his memoirs, he later admitted in his lectures that he was gay. It should be noted that Islam, in its final form, did not introduce antigay legislature to the world.
The texts of the Torah are replete with clear condemnations of such practices. The consequence of AIDS is enough to prove that homosexuality is evil and dangerous to society. The early spread of AIDS was concentrated among the homosexual community. It later spread to the heterosexual and the so-called bisexual community through blood transfusions and intravenous drug usage. Its spread continues on a rampage among promiscuous heterosexuals.
Islam considers homosexuality to be the result of a choice.
It is inconceivable that God made people homosexuals then declared it a crime and prescribed punishments for it in both this life and the next. To accept such a proposition is to accept that God is unjust. Inclinations can exist within humans for a variety of natural and unnatural acts, from fornication to rape and from necrophilia to bestiality.
These inclinations may come from jinn-suggestions, media influence, or even from human whisperings or direct contact. Sodomy was common among the people of Prophet Loot (Lot), may Allah exalt his mention, who lived in Sodom, Palestine; after they had rejected his advice to give up this evil practice, Allah Almighty crushed and then annihilated their city.
The Quran describes that punishment in the verse which means: "So when our commandment came, We made the highest part [of the city] its lowest and rained upon them stones of hard clay in succession." [Quran: 11:82] Human beings are not like robots that only do what they are programmed to.
Humans choose and God holds them responsible for their choices. Were homosexuality a product of genetic destiny, it would be unfair for God to criminalise it and punish those who practice it. Currently, some scientists are even claiming that murder is of genetic origin. To accept that would mean to excuse murderers and tolerate murder. Islam instructs parents to separate their children in their beds by the age of ten in order to avoid sexual experiences which may result from childhood experimentation.
Such experiences may be reinforced by contacts in schools and through abuse from adults.
Also, the distinctions between male and female are strongly made in Islamic teachings.
"The Messenger of Allaah sallallaahu 'alayhi wa sallam cursed the man who wears women’s clothes and the woman who wears men’s clothes." [Abu Dawood and Ibn Majah]
*Dr. Abu is a reknowned Muslim Scholar with wide teaching experience
Views expressed in this section do not necessarily represent the opinions of CISA.
Homosexuality and lesbianism have been dubbed 'alternative lifestyles', 'personal preference', 'natural variation', etc. In the West today, where homosexuality was once considered an illness by the Association of Psychiatrists, it has now been removed from the list and replaced by homophobia (the dislike of homosexuals and homosexuality).
Consequently, Islam and Muslims are considered intolerant and biased due to their continued opposition. Arguments in favour of tolerance towards homosexuals are based on the assumption that homosexual behaviour is biologically based and not merely learned from society.
Early opposition to homosexuality was based on the argument that such behaviour was unnatural. Sodomy cannot produce children, which is one of the main natural consequences of sexual relations. 'Mother Nature' did not make us that way, it was argued. To counter such arguments, homosexual researchers scoured the earth until they found supposed homosexual behaviour among the animal kingdom.
They found that the males of some species of exotic fishes off the coast of Japan imitated the behaviour of females of the species in order to prevent other males from impregnating their mates, and some rare butterflies from islands off the coast of Africa also had males exhibiting female behaviour during mating season, etc. However, if the animal kingdom is to be used to justify human behaviour, there also exists a spider in South America whose female is much larger than the male. When mating is complete, the female eats her mate.
During the 1980’s it was claimed that a gland in the base of the brain which is small in women and large in men was found to be small among homosexuals. However, this evidence, while seeming incontrovertible to the layman, was immediately refuted by scientists.
The data was taken from cross-sections of the brains of dead adult humans whose sexual preference was identified prior to death. Consequently, the reduced size of that gland among homosexuals could have been a result of the practice and not its cause.
That is, they could have been born with normal-sized glands which then became small due to their deviant lifestyle. Recently, genetics has become the most commonly used foundation for the pro-gay argument. In 1993 Dr. Dean Hamer, a researcher at the National Cancer Institute, claimed to have discovered 'the first concrete evidence that ‘gay genes’ really do exist.'
Homosexual orientation was supposedly transmitted to males on the X chromosome from the mother. Hamer’s findings, published in the prestigious journal 'Science', transformed his colourless career as a government scientist into a dynamic media personality and he penned his memoirs. He gave expert testimony to the Colorado Supreme Court that formed the basis of the victorious decision striking down anti-gay propositions.
However, a replication of his study at the University of Western Ontario failed to find any linkage whatsoever between the X chromosome and sexual orientation. It was also found that Hamer’s study lacked a control group; a fundamental principle of scientific research.
Furthermore, in June 1994, the Chicago Tribune reported that a junior researcher in Hamer’s laboratory, who assisted in the gene mapping in the homosexuality study, alleged that he selectively reported his data. She was then summarily dismissed from her post-doctoral fellowship in Hamer’s lab. But a National Institute of Health investigation substantiated her claims and gave her another position in a different lab.
Though Dr. Hamer was coy about his own sexuality in his memoirs, he later admitted in his lectures that he was gay. It should be noted that Islam, in its final form, did not introduce antigay legislature to the world.
The texts of the Torah are replete with clear condemnations of such practices. The consequence of AIDS is enough to prove that homosexuality is evil and dangerous to society. The early spread of AIDS was concentrated among the homosexual community. It later spread to the heterosexual and the so-called bisexual community through blood transfusions and intravenous drug usage. Its spread continues on a rampage among promiscuous heterosexuals.
Islam considers homosexuality to be the result of a choice.
It is inconceivable that God made people homosexuals then declared it a crime and prescribed punishments for it in both this life and the next. To accept such a proposition is to accept that God is unjust. Inclinations can exist within humans for a variety of natural and unnatural acts, from fornication to rape and from necrophilia to bestiality.
These inclinations may come from jinn-suggestions, media influence, or even from human whisperings or direct contact. Sodomy was common among the people of Prophet Loot (Lot), may Allah exalt his mention, who lived in Sodom, Palestine; after they had rejected his advice to give up this evil practice, Allah Almighty crushed and then annihilated their city.
The Quran describes that punishment in the verse which means: "So when our commandment came, We made the highest part [of the city] its lowest and rained upon them stones of hard clay in succession." [Quran: 11:82] Human beings are not like robots that only do what they are programmed to.
Humans choose and God holds them responsible for their choices. Were homosexuality a product of genetic destiny, it would be unfair for God to criminalise it and punish those who practice it. Currently, some scientists are even claiming that murder is of genetic origin. To accept that would mean to excuse murderers and tolerate murder. Islam instructs parents to separate their children in their beds by the age of ten in order to avoid sexual experiences which may result from childhood experimentation.
Such experiences may be reinforced by contacts in schools and through abuse from adults.
Also, the distinctions between male and female are strongly made in Islamic teachings.
"The Messenger of Allaah sallallaahu 'alayhi wa sallam cursed the man who wears women’s clothes and the woman who wears men’s clothes." [Abu Dawood and Ibn Majah]
*Dr. Abu is a reknowned Muslim Scholar with wide teaching experience
Views expressed in this section do not necessarily represent the opinions of CISA.
Thursday, October 7, 2010
Could More Women Transform Politics?
* Michael Edwards
“It’s high time Oxfam got in touch with its feminine side.” As my policy recommendation as the departing Field Director in Lusaka I’ll admit that my judgment raised some eyebrows on the senior management team, though I remember the Gender Advisor liked it. I’m not even sure I knew what I was saying, but I was definitely uncomfortable with the aggressive growth-and-competition-oriented tendencies that were beginning to infect large charities by the mid-1980s.
Where was openness to learning, or sharing, self-sacrifice, empathy and flexibility – all qualities that I thought were essential to Oxfam’s mission of supporting the empowerment and nurturing of others? Presumably they lay with women, as all the books I remember reading told me at the time, though they were more personal than political.
That set me thinking: since the wider landscape of politics was heading in the same direction – competing for power but rarely using it in liberating ways - maybe women, or the qualities traditionally associated with them, held the key to political transformation on a much bigger scale? Of course, getting more women into politics is not a new idea, and on the surface, you’d be hard put to find anyone against it. But the argument is usually framed in terms of the pragmatic virtues of diversity, not the deeper implications of equality. Could more women in politics transform politics - and if so how?
That’s an intriguing question. But it’s irrelevant until women actually possess equality of participation, at which point one could make a sensible judgment about the matter. We don’t encourage Catholics or African Americans to take part in politics because of the distinctive qualities they bring to the table, but because equal participation is everybody’s right and the same argument applies to women. As a result of biology, socialization or a mixture of the two over a good few thousand years, it may well be true that women possess characteristics that could make politics more than a zero-sum game between narrow political interests. But as individuals, women are just as diverse, difficult and daft as men, and all of us have the ability to love, and to express love in the public sphere, even if some of us actively repress it.
And that’s the crucial point: since equality rests on radical upheavals in social structures as well as individual behaviour – a complete re-ordering of the care economy, for example, and a revolution in male attitudes towards co-operation and compassion – it’s a fair bet that politics would be transformed in the process of securing it. In fact, putting the emphasis on equality creates a much stronger foundation for change than promoting more diversity in politics as we know it. On its own, that’s a strategy that virtually guarantees, not only that relatively few women will rise to the top, but also that those who do so will practice politics in ways that are often indistinguishable from men, since there are so few incentives to test real alternatives.
For example, equal participation in domestic work would free up time for women to participate in politics on a much more regular basis, and create routes to sustainable leadership in the process. Shared, physical acts of caring, compromise and negotiation could fashion a different set of skills for use on the broader political stage. And the same combination of empathy, strength and flexibility that is honed in the tasks of nurturing healthy human relationships might enable protagonists to argue through their political differences rather than embedding them permanently in the polity. Social activists call this ‘straight back, soft front’ – the ability to hold fast to your long-term vision and values while pursuing them in lots of different ways, some of which may even contradict your own short-term interests.
Although it is unfashionable to say so, democracy cannot be deepened through social media or the internet. The deep foundations of politics have to be re-fashioned through the pursuit of radical equality at every turn, face-to-face, and from the bottom up. Only encounters between equals can re-weave power relations into a fabric capable of sustaining new institutions built around caring, love and justice. As the building blocks of equality are put into place, values and commitments are forced into an open confrontation, and change occurs. Of course, political differences do not disappear, but better ways of handling them become available, methods which enable politics to be transformative as well as to be transformed, and to support breakthroughs in decision-making in favour of the public good which are not simply dismantled when the next party comes to power.
What’s important here is that transformation is for everyone – we can’t rely on women to transform politics for the rest of us, a position that seems just a tad unfair given that they already sustain pretty much everything else of value in the world. So the acceptance of radical equality is the only real starting point for political transformation. This is “pre-figurative” politics at its best – the art of practicing the change you want to see in the world as a way of modelling healthier organizations and communities, and eventually whole new institutions and processes of governance.
But, turning the argument around, it’s also true that political institutions can be reformed in ways that are more welcoming to new forms of engagement, and that’s a task that doesn’t depend on immediate upheavals in personal or social relations. For example, reserving quotas for women candidates in India’s decentralized system of non-party village politics has already had substantive effects on political outcomes, and is beginning to have a deeper impact on gender relations too. Or take participatory budgeting, which has spread around the world from its roots in Brazil. It works both as a practical device for allocating resources more fairly, and as a crucible for fashioning new alliances and relationships across different social groups. When the forms and norms of politics come together in these ways, change becomes self-reinforcing.
The problem is that so few of these innovations are visible at scale or in the mainstream, and they seem so far distant from the determinedly non-transformative politics that are practiced in most of the world today. The reason is clear – pre-figurative politics make ‘winning’ much more difficult, at least in the conventional sense of accumulating enough political power to defeat your opponents, preferably forever. But that, of course, is the point, and it’s why feminism’s most important teaching – that ‘the personal is political’ and vice-versa, remains so absolutely important. Equality between men and women is the foundation of transformative politics. So we might as well get started with the washing up.
*Michael Edwards is a distinguished Senior Fellow at Demos: a Network for Ideas and Action in New York, and the author of Small Change: Why Business Won't Save the World.
Views expressed in this section do not necessarily represent the opinions of CISA
“It’s high time Oxfam got in touch with its feminine side.” As my policy recommendation as the departing Field Director in Lusaka I’ll admit that my judgment raised some eyebrows on the senior management team, though I remember the Gender Advisor liked it. I’m not even sure I knew what I was saying, but I was definitely uncomfortable with the aggressive growth-and-competition-oriented tendencies that were beginning to infect large charities by the mid-1980s.
Where was openness to learning, or sharing, self-sacrifice, empathy and flexibility – all qualities that I thought were essential to Oxfam’s mission of supporting the empowerment and nurturing of others? Presumably they lay with women, as all the books I remember reading told me at the time, though they were more personal than political.
That set me thinking: since the wider landscape of politics was heading in the same direction – competing for power but rarely using it in liberating ways - maybe women, or the qualities traditionally associated with them, held the key to political transformation on a much bigger scale? Of course, getting more women into politics is not a new idea, and on the surface, you’d be hard put to find anyone against it. But the argument is usually framed in terms of the pragmatic virtues of diversity, not the deeper implications of equality. Could more women in politics transform politics - and if so how?
That’s an intriguing question. But it’s irrelevant until women actually possess equality of participation, at which point one could make a sensible judgment about the matter. We don’t encourage Catholics or African Americans to take part in politics because of the distinctive qualities they bring to the table, but because equal participation is everybody’s right and the same argument applies to women. As a result of biology, socialization or a mixture of the two over a good few thousand years, it may well be true that women possess characteristics that could make politics more than a zero-sum game between narrow political interests. But as individuals, women are just as diverse, difficult and daft as men, and all of us have the ability to love, and to express love in the public sphere, even if some of us actively repress it.
And that’s the crucial point: since equality rests on radical upheavals in social structures as well as individual behaviour – a complete re-ordering of the care economy, for example, and a revolution in male attitudes towards co-operation and compassion – it’s a fair bet that politics would be transformed in the process of securing it. In fact, putting the emphasis on equality creates a much stronger foundation for change than promoting more diversity in politics as we know it. On its own, that’s a strategy that virtually guarantees, not only that relatively few women will rise to the top, but also that those who do so will practice politics in ways that are often indistinguishable from men, since there are so few incentives to test real alternatives.
For example, equal participation in domestic work would free up time for women to participate in politics on a much more regular basis, and create routes to sustainable leadership in the process. Shared, physical acts of caring, compromise and negotiation could fashion a different set of skills for use on the broader political stage. And the same combination of empathy, strength and flexibility that is honed in the tasks of nurturing healthy human relationships might enable protagonists to argue through their political differences rather than embedding them permanently in the polity. Social activists call this ‘straight back, soft front’ – the ability to hold fast to your long-term vision and values while pursuing them in lots of different ways, some of which may even contradict your own short-term interests.
Although it is unfashionable to say so, democracy cannot be deepened through social media or the internet. The deep foundations of politics have to be re-fashioned through the pursuit of radical equality at every turn, face-to-face, and from the bottom up. Only encounters between equals can re-weave power relations into a fabric capable of sustaining new institutions built around caring, love and justice. As the building blocks of equality are put into place, values and commitments are forced into an open confrontation, and change occurs. Of course, political differences do not disappear, but better ways of handling them become available, methods which enable politics to be transformative as well as to be transformed, and to support breakthroughs in decision-making in favour of the public good which are not simply dismantled when the next party comes to power.
What’s important here is that transformation is for everyone – we can’t rely on women to transform politics for the rest of us, a position that seems just a tad unfair given that they already sustain pretty much everything else of value in the world. So the acceptance of radical equality is the only real starting point for political transformation. This is “pre-figurative” politics at its best – the art of practicing the change you want to see in the world as a way of modelling healthier organizations and communities, and eventually whole new institutions and processes of governance.
But, turning the argument around, it’s also true that political institutions can be reformed in ways that are more welcoming to new forms of engagement, and that’s a task that doesn’t depend on immediate upheavals in personal or social relations. For example, reserving quotas for women candidates in India’s decentralized system of non-party village politics has already had substantive effects on political outcomes, and is beginning to have a deeper impact on gender relations too. Or take participatory budgeting, which has spread around the world from its roots in Brazil. It works both as a practical device for allocating resources more fairly, and as a crucible for fashioning new alliances and relationships across different social groups. When the forms and norms of politics come together in these ways, change becomes self-reinforcing.
The problem is that so few of these innovations are visible at scale or in the mainstream, and they seem so far distant from the determinedly non-transformative politics that are practiced in most of the world today. The reason is clear – pre-figurative politics make ‘winning’ much more difficult, at least in the conventional sense of accumulating enough political power to defeat your opponents, preferably forever. But that, of course, is the point, and it’s why feminism’s most important teaching – that ‘the personal is political’ and vice-versa, remains so absolutely important. Equality between men and women is the foundation of transformative politics. So we might as well get started with the washing up.
*Michael Edwards is a distinguished Senior Fellow at Demos: a Network for Ideas and Action in New York, and the author of Small Change: Why Business Won't Save the World.
Views expressed in this section do not necessarily represent the opinions of CISA
Thursday, August 26, 2010
Kenya's New Constrained Presidentialism
*Siddhartha Haria
Millions of words have been written on Kenya's constitutional reform process. Therefore, given the chance to add yet more words to his vast literature I would like to address some issues that have not been given the attention they deserve – the importance of tactics and accident in getting where we are now – and to acknowledge the role of some individuals who were instrumental to the process, but have not received the international attention the principals, President. Kibaki and Prime Minister Raila Odinga, have. It has recently become fashionable in Kenya to state that the “hard part” starts now, with the enactment of 49 pieces of subsidiary legislation. Nonsense! The 'hard part', at least in terms of constitution-making is over.
Nothing can compare to this 20 year struggle to produce this document. There have been plenty of ups and downs, delays and reversals. It was supposed to kick-off with introduction of multi-party democracy in 1992. Moi promised 1995 was the 'year of the new constitution'. Kibaki promised a new constitution within 100 days of taking office in 2003.
Moreover, it has exhaustively inclusive – even as an annoying twelve-year old, I received a response to my contribution from the former review chairman Prof. Ghai and reformist MP Paul Muite. This inclusive process has generated a real sense of ownership; this constitution has not come from an ivory tower. With such ownership this constitution will not easily be undone, in the way Uganda's has for example.
Kenyans know their constitutional law, for example, it is quite common in Nairobi to have an advanced discussion on the separation of powers with anyone. Unfortunately, Kenya's broader process of democratization has also had a darker side: many lives have been lost in political and ethnic violence. Still, the blood, sweat and tears of Kenyans was not enough to deliver a new constitution. Kenyan politics was stuck. It was easy for politicians such as Mwai Kibaki to promise reform in opposition, but become reluctant when in power. Turkeys do not vote for Christmas.
Genuine reform threatened to upset vested interests. It is down to chance and circumstances that these obstacles were overcome. Firstly, Kibaki was after the disputed election a second term President, not eligible to run again. Therefore, he was less interested in opposing reforms that would mainly constrain his successor, not him. Indeed the enormous value of term limits should be clear; throughout Africa they have helped midwife political change by changing the incentives of the incumbent. Moreover that disputed election threatened to tarnish his legacy, helped concentrate minds at home and renew pressure abroad. It is a cliché, but it took crisis to bring real reform. In the aftermath of the crisis Kenyan MPs passed legislation to re-start the review process. Martha Karua drew up a watertight bill that basically put the process on auto-pilot. If politicians failed to play their role, there were mechanisms for the process to continue. It is puzzling that Kenyan MPs passed such bold legislation that bound them to completing the reform process. The answer is simply they were sleeping, not paying attention to the laws they were enacting. Indeed several MPs, including, William Ruto, leader of the 'No' Camp, later expressed surprise at provisions that only required a simple majority to pass the document on to the referendum stage, but a two-thirds majority to amend it. We owe our new constitution to such accidents. In comparison it will be much easier to pass the 49-odd subsidiary laws, the threat of dissolution and attendant loss of perks will keep our MPs working. This new constitution, despite being the product of a messy political compromise, is a good document. At one stage the reform process became bogged down in a battle between proponents of presidential and parliamentary systems as well as advocates of various hybrids.
Credit is due to the young, first-time MP, Abdikadir Hussein Mohammed, as chairman of the parliamentary select committee for helping craft a genuinely presidential system with stringent checks and balances that nobody loved but nearly everyone could live with.
There are a number of other desirable reforms included:
• The President must win over half the votes in an election, with provision for a run-off. This will prevent a candidate lacking broad national support being elected because of ethnic splits.
• Key Presidential appointments require parliamentary approval.
• The old KANU tool of executive political control, the Provincial Administration is abolished, replaced by a system of devolution.
• The sharing of power and revenue through devolution should help reverse the marginalization of parts of Kenya. More importantly it means groups that do not capture the presidency are not locked out of power all together.
• Constituencies have to of a nearly equal size with limits on how much their population vary, ending a long history of gerrymandering.
These reforms are not a boilerplate wish-list; they are not prescriptions of motherhood and apple pie. They change the incentives political players face and have the potential to transform politics. It is customary for pieces on Kenya to note our troubles with our northern neighbour Somalia. I would like to end on a different note and point to an observation made by Charles Onyango-Obbo, that if Kenya has a 'Somali headache' it also has a 'Somali dividend.' With mistrust between the larger ethnic groups, Kenyan Somalis are called upon to act as neutral brokers. They have certainly risen to the task. Abdikadir Hussein Mohammed, mentioned above, is a Kenyan Somali from an unprivileged background who through hard work made it to Harvard. The chairman of Interim Independent Electoral Commission, Issack Hassan who made sure the referendum was the most credible electoral exercise in Kenya's history is another Kenyan Somali. They are amongst the finest public officials we have. *This opinion by Siddhartha Haria was first published in the OpenDemocracy on August 23, 2010
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
Millions of words have been written on Kenya's constitutional reform process. Therefore, given the chance to add yet more words to his vast literature I would like to address some issues that have not been given the attention they deserve – the importance of tactics and accident in getting where we are now – and to acknowledge the role of some individuals who were instrumental to the process, but have not received the international attention the principals, President. Kibaki and Prime Minister Raila Odinga, have. It has recently become fashionable in Kenya to state that the “hard part” starts now, with the enactment of 49 pieces of subsidiary legislation. Nonsense! The 'hard part', at least in terms of constitution-making is over.
Nothing can compare to this 20 year struggle to produce this document. There have been plenty of ups and downs, delays and reversals. It was supposed to kick-off with introduction of multi-party democracy in 1992. Moi promised 1995 was the 'year of the new constitution'. Kibaki promised a new constitution within 100 days of taking office in 2003.
Moreover, it has exhaustively inclusive – even as an annoying twelve-year old, I received a response to my contribution from the former review chairman Prof. Ghai and reformist MP Paul Muite. This inclusive process has generated a real sense of ownership; this constitution has not come from an ivory tower. With such ownership this constitution will not easily be undone, in the way Uganda's has for example.
Kenyans know their constitutional law, for example, it is quite common in Nairobi to have an advanced discussion on the separation of powers with anyone. Unfortunately, Kenya's broader process of democratization has also had a darker side: many lives have been lost in political and ethnic violence. Still, the blood, sweat and tears of Kenyans was not enough to deliver a new constitution. Kenyan politics was stuck. It was easy for politicians such as Mwai Kibaki to promise reform in opposition, but become reluctant when in power. Turkeys do not vote for Christmas.
Genuine reform threatened to upset vested interests. It is down to chance and circumstances that these obstacles were overcome. Firstly, Kibaki was after the disputed election a second term President, not eligible to run again. Therefore, he was less interested in opposing reforms that would mainly constrain his successor, not him. Indeed the enormous value of term limits should be clear; throughout Africa they have helped midwife political change by changing the incentives of the incumbent. Moreover that disputed election threatened to tarnish his legacy, helped concentrate minds at home and renew pressure abroad. It is a cliché, but it took crisis to bring real reform. In the aftermath of the crisis Kenyan MPs passed legislation to re-start the review process. Martha Karua drew up a watertight bill that basically put the process on auto-pilot. If politicians failed to play their role, there were mechanisms for the process to continue. It is puzzling that Kenyan MPs passed such bold legislation that bound them to completing the reform process. The answer is simply they were sleeping, not paying attention to the laws they were enacting. Indeed several MPs, including, William Ruto, leader of the 'No' Camp, later expressed surprise at provisions that only required a simple majority to pass the document on to the referendum stage, but a two-thirds majority to amend it. We owe our new constitution to such accidents. In comparison it will be much easier to pass the 49-odd subsidiary laws, the threat of dissolution and attendant loss of perks will keep our MPs working. This new constitution, despite being the product of a messy political compromise, is a good document. At one stage the reform process became bogged down in a battle between proponents of presidential and parliamentary systems as well as advocates of various hybrids.
Credit is due to the young, first-time MP, Abdikadir Hussein Mohammed, as chairman of the parliamentary select committee for helping craft a genuinely presidential system with stringent checks and balances that nobody loved but nearly everyone could live with.
There are a number of other desirable reforms included:
• The President must win over half the votes in an election, with provision for a run-off. This will prevent a candidate lacking broad national support being elected because of ethnic splits.
• Key Presidential appointments require parliamentary approval.
• The old KANU tool of executive political control, the Provincial Administration is abolished, replaced by a system of devolution.
• The sharing of power and revenue through devolution should help reverse the marginalization of parts of Kenya. More importantly it means groups that do not capture the presidency are not locked out of power all together.
• Constituencies have to of a nearly equal size with limits on how much their population vary, ending a long history of gerrymandering.
These reforms are not a boilerplate wish-list; they are not prescriptions of motherhood and apple pie. They change the incentives political players face and have the potential to transform politics. It is customary for pieces on Kenya to note our troubles with our northern neighbour Somalia. I would like to end on a different note and point to an observation made by Charles Onyango-Obbo, that if Kenya has a 'Somali headache' it also has a 'Somali dividend.' With mistrust between the larger ethnic groups, Kenyan Somalis are called upon to act as neutral brokers. They have certainly risen to the task. Abdikadir Hussein Mohammed, mentioned above, is a Kenyan Somali from an unprivileged background who through hard work made it to Harvard. The chairman of Interim Independent Electoral Commission, Issack Hassan who made sure the referendum was the most credible electoral exercise in Kenya's history is another Kenyan Somali. They are amongst the finest public officials we have. *This opinion by Siddhartha Haria was first published in the OpenDemocracy on August 23, 2010
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
Tuesday, August 24, 2010
Women want Fair Share of Constitution Spoils
Rosemary Okello
As the country gears up to the promulgation of the new Constitution on August 27, the women of Kenya under the umbrella of G-10 are already worried that their hopes might be shattered if the spirit of the Constitution is not captured from the onset in the Constitutional Oversight Implementation Committee.
During a planning meeting to set up their priority areas within the implementation process, the women said they do recognise and affirm the importance of the implementation process and that is why they are calling upon the political leadership to honour the letter and spirit of the new Constitution by ensuring that women's issues are taken seriously and are not glossed over.
Grace Maingi Kamau, the Executive Director of FIDA-Kenya is on record saying that women have been part of the constitutional process for a long time and expect that the implementation should go hand-in-hand with the national values and principles of governance which are clearly stipulated and include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.
Even though they are cognisant of the fact that it will no longer be business as usual women are aware that several critical offices shall be central to the full implementation of the New Constitution.
These include the office of the Chief Justice, Attorney General, The Director of Public Prosecutions, The Judicial Service Commission and the envisaged reforms in the Judiciary, therefore they do not only expect the adoption of a transparent and accountable criteria in the appointment of officers to these offices but also meaningful and effective participation by the women.
To make sure that the woman become part of the implementation process, they have set up a task force to work with the two principals namely; President Mwai Kibaki and Prime Minister Raila Odinga, the Parliamentary select committee, the implementation commission as and when it is set up, MPs and other stakeholders in the implementation process.
Deborah Okumu the Executive Director of the Caucus for Women Leadership points out that they are developing a database of names of women who can either be part of the implementation process or be appointed in the various posts in line with the Constitution.
According to her since no appointment will be lawful unless it respects the principle where no one gender will constitute more than two-thirds, this will make it easy for the relevant institutions to tap into the data which she said is very representative in terms of various professional, it also represents all the region in Kenya and it has inter-generational dimension.
With the new Constitution in cases in terms of the leadership positions, when the chair is a woman, the vice chair shall be a man and vice versa. The women would also like to see the enhancement of the human rights and political advancement of women through the new constitution.
The women are also planning to launch an auditing tool, which they will use to audit the implementation process from a gender perspective. Reports from the same will be issued every fortnight or as will become necessary.
This means that Kenyans must remain engaged, extremely vigilant of the implementation process and together as men and women to work together to enhance principles of democracy where each citizen is equally valued and has rights to participate in governance, regardless of ethnicity, gender, and disability status, among others.
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
As the country gears up to the promulgation of the new Constitution on August 27, the women of Kenya under the umbrella of G-10 are already worried that their hopes might be shattered if the spirit of the Constitution is not captured from the onset in the Constitutional Oversight Implementation Committee.
During a planning meeting to set up their priority areas within the implementation process, the women said they do recognise and affirm the importance of the implementation process and that is why they are calling upon the political leadership to honour the letter and spirit of the new Constitution by ensuring that women's issues are taken seriously and are not glossed over.
Grace Maingi Kamau, the Executive Director of FIDA-Kenya is on record saying that women have been part of the constitutional process for a long time and expect that the implementation should go hand-in-hand with the national values and principles of governance which are clearly stipulated and include human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.
Even though they are cognisant of the fact that it will no longer be business as usual women are aware that several critical offices shall be central to the full implementation of the New Constitution.
These include the office of the Chief Justice, Attorney General, The Director of Public Prosecutions, The Judicial Service Commission and the envisaged reforms in the Judiciary, therefore they do not only expect the adoption of a transparent and accountable criteria in the appointment of officers to these offices but also meaningful and effective participation by the women.
To make sure that the woman become part of the implementation process, they have set up a task force to work with the two principals namely; President Mwai Kibaki and Prime Minister Raila Odinga, the Parliamentary select committee, the implementation commission as and when it is set up, MPs and other stakeholders in the implementation process.
Deborah Okumu the Executive Director of the Caucus for Women Leadership points out that they are developing a database of names of women who can either be part of the implementation process or be appointed in the various posts in line with the Constitution.
According to her since no appointment will be lawful unless it respects the principle where no one gender will constitute more than two-thirds, this will make it easy for the relevant institutions to tap into the data which she said is very representative in terms of various professional, it also represents all the region in Kenya and it has inter-generational dimension.
With the new Constitution in cases in terms of the leadership positions, when the chair is a woman, the vice chair shall be a man and vice versa. The women would also like to see the enhancement of the human rights and political advancement of women through the new constitution.
The women are also planning to launch an auditing tool, which they will use to audit the implementation process from a gender perspective. Reports from the same will be issued every fortnight or as will become necessary.
This means that Kenyans must remain engaged, extremely vigilant of the implementation process and together as men and women to work together to enhance principles of democracy where each citizen is equally valued and has rights to participate in governance, regardless of ethnicity, gender, and disability status, among others.
Disclaimer: Views expressed in this section do not represent the opinions of CISA.
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