Charging P 3 forms is unconstitutional

Kenyans beware, P 3 forms are free!

Eric Mukoya

Four months and counting, we seem not to appreciate the import of a landmark judgement with the propensity to enhance justice among survivors of violence, particularly the poor. On the 4th of April 2019, sitting in the Embu High Court, Justice Florence Muchemi declared charging of P 3 forms unconstitutional. She was categorical that Cabinet Secretary Ministry of Health, Inspector General of Police, the Honourable Attorney General, National and County governments health facilities were prohibited from levying any fee on P 3 forms. She termed such payment and any other solicitation therefrom, a violation of the basic principles of access to justice. Simply put, charging P 3 forms is null and void.

The judgment may have gone unnoticed because information from various counties indicate non-compliance. This necessitates a reminder, especially from Legal Resources Foundation Trust who canvassed the matter on behalf of poor Kenyans. Violence is barbaric, primitive, unjust and unashamedly, manifestation of a society whose values are fast eroding. Survivors of sexual and gender-based violence, grievous harm as well as assault amongst other forms are ostracized, stigmatized, and discriminated upon when made to pay for P 3 forms. Records show that at least 7 out of 10 Kenyans, more so women cannot afford and often abandon prosecution, hence lessening legal possibilities of dealing with perpetrators of violence.  

If Kenya seeks to implement Sustainable Development Goals, especially Goal 16, then a culture to observe and respect court orders must be nurtured. The opposite is true and common among national and county governments agents. It is not the entitlement of the state to ensure legal inclusivity, through public participation, including protests, Kenyans must be central to this discourse. Article 48 of the Constitution is an aide-mémoire that institutional and legal governance which upholds the rule of law is evidentiary to civility. So, should non-compliance to Justice Florence Muchemi’s judgement bother us as a country?

P 3 forms are central in the management of the criminal justice system in Kenya. First, the forms are strategic evidence archiving instruments, without which ascertainment of allegations regarding violence may be difficult to prove. Second, they serve to demonstrate the extent of harm and confirmation of offense in sexual and gender based related abuse. It is appreciated that absence of a medical expert’s opinion reduces the level of truthfulness in an allegation of violence. Therefore, mishandling of P 3 forms at any stage is a procedural blunder that points to a mistrial yet Article 50 of the constitution demands fairness.

The magnitude of the P 3 form’s issue is large considering that Law Society of Kenya and International Justice Mission were part of the suit as interested parties. In addition, data from the court of appeal indicate that perpetrators of violence are likely acquitted due to lack of P 3 forms, or availability of poorly filled ones, besides, varied testimonies by medical experts, who in the first place didn’t interact with the survivor, hence less inclined to link the information form to the moment of reporting.

Be it as may, commitment to operationalize the judgment is long overdue. The interdicts by Justice Florence Muchemi politely instructed as follows: that all P 3 forms were not to be charged irrespective of what crime they represented: all public health facilities were not to charge any form of fees on P 3 forms: all police officers and stations were expected not to nor seem to suggest in any way or behave in such a manner as if P 3 forms were accessible at a fee: the cabinet secretary of the ministry of Health were to offer directive to all public hospitals not to charge P 3 forms: the national and county governments under Article 174 and 189 partner to ensure that health facilities do not charge P 3 forms: Council of Governors employ its political and administrative oversight to rein-in on counties’ health authorities from charging P 3 forms: and the Attorney General to constitute multi-stakeholder dialogue to develop policy and guidelines on modus operandi of P 3 forms.

In the interest of survivors of violence, the court be urged to proliferate the jurisprudence emanating from this holding. Furthermore, members of public to remain vigilant and canvass emerging trends of blatant disrespect of court orders and monitor how institutions implements the judgement. Nonetheless, for individual officers in the Ministry of Health in particular those working in public hospitals to remember that contempt of court proceedings will not invite institutional failure to observe the court order as a defence. We must echo Benjamin Franklin’s perspective of justice, who once said, “justice will not be served until those who are unaffected are as outraged as those who are.” Let us live the spirit of justice!

Extractive sector in Kenya: Will we hack it?

By Paul Kauku

The discovery of oil in Turkana County, Northern Kenya and ongoing exploration and production activities in other parts of the country have been viewed with excitement and hope on one side, and anxiety on the other. To some, the Country has already won a golden ticket to economic and social prosperity considering some of the largest economies in the world like Saudi Arabia earns about 50% of Gross Domestic Product (GDP) and about 70% of export earnings from the extractive industry . In hindsight, petroleum and mineral resources could contribute more than 5% to the Kenya’s GDP in the medium term and surpass traditional exports such as coffee as the key foreign exchange earner. In fact, preliminary estimates from various experts indicate that Kenya holds approximately 64.2 billion USD worth of rare earth . To others, there are valid concerns that failure to adequately manage the non- renewable natural resource may prevent Kenyans from enjoying the potential benefits of oil revenues including significantly expanding the economy to middle – income status as envisioned by Vision 2030 economic blue print and boosting social economic status of the local communities. Forgive my pessimism, but judging by increasing levels of corruption scandals, my confidence on proper management of the extractive industry is rather low.

Kenya can avoid the theory of resource curse . This theory speaks to resource abundant economies that tend to grow less rapidly and are more prone to conflict in resource- scarce economies. It has been argued that, resources abundant economies tend to suffer from Dutch disease; insufficient economic diversification; rent seeking and conflicts; corruption and undermined political institutions as well as loose economic policies. Ring a bell?

To contextualize the possibility of resource curse its necessary to compare Kenya with another country that has effectively and successfully managed natural resources. Botswana becomes a viable comparative. Bostwana, is one of the World’s largest producers of diamonds. It is one of the few that has managed to turn its resources into a blessing rather than a curse. Botswana went from being one of the 25 poorest countries in the World to becoming an upper –middle-income economy in 1998 reaching a per capita Gross Domestic Product (GDP) of 9200 USD in 2004 (Transparency International) and in 2017 Focus Economics placed Botswana’s GDP per capita at 8051 USD. How did Botswana escape the pitfalls of the resource curse? Over and above sound economic strategies, Botswana pursued good governance policies.

Coming back home, signs of conflicts manifested in March 2017 when President Kenyatta toured the arid County of Turkana. Turkana Governor Josphat Nanok sparked an angry reaction from the President after he criticized the government plans to amend the Petroleum and Exploration Bill to reduce local communities’ 10% oil share benefits earlier proposed to 5%. Two months later, the County government of Turkana and the National government struck a deal at State House in Nairobi, clearing the way for Implementation of the Early Oil Pilot Scheme. Alarmingly, the community share which had been the bone of contention was retained at 5%. Other than people feeling shortchanged in revenue sharing model, Turkana County government yielded and accepted an arrangement to have her share of oil revenue capped should it exceed her annual budget . The same was revised on 19th May 2018 and capping on revenue was removed.

The deal and the subsequent revision places Turkana community members at the short end of the stick. The arrangement is contaminated with hallmarks of capitalistic imperialism and is akin to a case of the elite speaking with their stomachs. It further offends the spirit of the Constitution of Kenya 2010, which placed natural resources governance and management in the hands of Kenyans (managed for them by the State). The political class may argue that, the 75% revenue share to the National Government and 20% revenue share to the County Government, will form part of the national revenue and eventually translate to development. Such an arrangement does not exude any form of confidence, given the Kenya we are in today.

When announcing the deal between the National and County governments, the President expressed confidence that; oil production would proceed without hindrance and transportation of crude oil to Mombasa would be rolled out in earnest. In support of the President, Governor Nanok confirmed the leadership and people of Turkana were in full support of exploration and production of oil. He also added that the Council of Governors was satisfied with the manner in which the issue was resolved. Turkana community expressed dissatisfaction by the manner in which the deal was struck minus their input. The government demonstrated total disregard for the mwananchi and by all accounts defiled the spirit and letter of the Constitution under Article 1, which places the sovereign power to people of Kenya. To add insult to injury, the government had a few months prior to the deal signed a production agreement with Tullow Oil and an early Oil Pilot Scheme Agreement with Tullow Oil, Africa Oil, and Maersk Oil and Gas for exportation of Crude oil . To date, the community has never interacted with these agreements and Tullow Oil gives limited information.

The deals are the genesis of conflicts. At one point, Tullow Oil was unable to export 40,000 barrels of oil, as they could not access Ngamia 3 and 8 Oil fields due to insecurity. Further, one of the Companies contracted to upgrade the Kitale – Lodwar Road, which leads to the Oil fields suspended work after attack on three of its employees .

Turkana people who communally own the land now find themselves having to compete with private investors. The land surface from Lodwar to Lokichar has largely been marked for exploration. Oil installations have displaced pastoralists’ community from their grazing land and migratory routes. During exploration, 13 acres of land were fenced off for each of the oil field resulting to livelihoods difficulties and anxiety . Consequently, there have been conflicts among members of the community fighting for grazing land and water. Majority of adult males in Turkana own guns largely used for cattle rustling. There are concerns over the fact that the oil discoveries near Pokot – Turkana border may fuel violence between the Turkana and Pokot communities after mineral explorations established that there are large deposits of oil in the region. The pokot have laid claim on the discovered oil fields.

There is also a general concern by the community over environmental degradation, which in future may precipitate conflicts. Even though the mining industry is still at its nascent stages, there are already signs of negative impact on the environment. National Environmental Management Agency (NEMA) has initiated cultural talks to protect sacred shrines of the Turkana people after destruction of a few to create room for exploration. It has been documented; oil extractions can have adverse effects on the environment particularly in relation to possible oil spills, which could release dangerous carcinogenic hydrocarbons into soil that subsequently could reduce plant growth adversely affecting the eco-system

There is minimal government intervention on conflict mitigation arising from presence of extractive industries. In 2017, Legal Resources Foundation Trust (LRF) a not for profit civil society organization piloted a project in Turkana East and South Sub Counties focusing on raising awareness on community land laws, extractive industry, and environmental rights. The project has so supported founding of an Environmental and Land Court (ELC) Court Users Committee to facilitate deliberation of pertinent issues relating to land and extractive industry, and established an Alternative Dispute Resolution Mechanism (ADR) model to enable community members resolve conflicts amicably.

To realize the full potential of Oil industry, both tiers of government need to involve the community more in development of legislations and policies. Establish public participation structures that are compatible with Turkana community aspirations. The national and county government as well as oil companies owe Kenyans constitutional obligation to share information on Turkana oil deals.

To win war on graft, centre must hold

Eric Mukoya
The call to protect and dissuade Kenyans from corruption is an overrated commitment. If it were politicians we would treat the same with disdain and disinterest, but from the five most respectable offices in the corridors of justice. 7 th , February 2019 the most powerful offices of justice jointly stated in public to effectively work against corruption. The statement, read by the Chief Registrar of Judiciary came at the backdrop of accusations and counter accusations of who
was sabotaging the corruption war. Under the banner of National Committee on Administration
of Justice (NCAJ), the Office of the Director Public Prosecutions (ODPP), Director of Criminal
Investigations (DCI), Chief Executive Officer of the Ethics and Anti-Corruption Commission,
Witness Protection Agency and Chief Justice in the honorable company of the Attorney general
assured the public of swift and collaborative approach to scale down graft.
Efforts to kill corruption are emphatic in rhetoric but the outcome is often absurd. The
country has had corruption conferences among other consultations with pledges to upstage the
scourge. However, huge financial loses in procurement, county expenditures, unwarranted
budget in line ministries, many unnecessary abroad travels for learning by civil servants and state
officers, poor workmanship and low quality infrastructure are disheartening. Our taxes are
wasted on unsustainable projects, not mentioning local, bilateral and multilateral loans that pile
up public debt for which 45.5% of country revenues is given as annual repayment. Without
rubbishing the allegations on the implications of a delayed or unpaid Chinese debt, it is quite
harrowing to imagine that public assets of national value including those depicting Kenyan
identify could be confiscated for such financial borrowing.
This background makes the partnership between the five public offices an interesting
subject. Three questions arise to help us understand the relevance of such collaboration: first,
what holds together the commitments? Second, what is the partnership likely to achieve: and,
third, why should the partnership matter now? The impatience and anger of the general public
cannot be overemphasized. Wanjiku is tired and less energized to believe again. This may
explain and justify the timing. The fatigue of ordinary Kenyans is due to complacency of these
institutions and the anger, unfortunately to the judiciary, though only an arbiter! it is important
for Kenyans to demand alternative and effective approach to scuttle corruption and its agents.
Besides, there is pressure from most obvious and unlikely quarters. A president who promises
not to protect anyone engaged in the vice. A former Prime Minister wondering why chicken gate
suspects in the UK were jailed yet their accomplices in Kenya let scot free. A Deputy President
acknowledging that land upon which seats a hotel associated with him was fraudulently acquired.
This is political goodwill that NCAJ has picked and must translate into multi-stakeholder drive
against corruption.
The partnership is welcome however, the following must happen to enjoin public support.
The Director of Criminal Investigations must sharpen investigations and adhere to the advice of
the Office of the Director of Public Prosecutions (ODPP). The investigating officers (IOs) must
stand the test of time and resist bribes that demean their investigations. They must avail police

files when and if required, besides providing witnesses including those who seek protection to
the court. In short they must be professionals. Likewise, there must be clarity between
investigators of the Ethics and Anti-Corruption Commission (EACC) and those of the National
Police Service, drawing a line of who bears the brunt of shoddy investigations in graft cases. The
EACC must be aware that raiding suspects houses in the wee hours of the morning will not
improve evidence collection. Remember corruption is an organized crime and those who engage
take precaution including destruction of paper trail. On the other hand, the ODPP must be told,
that delegated prosecutorial powers to the EACC has some responsibility. Framing of charges,
presentation of evidence and submissions in an adversarial system requires brilliance and deep
understanding of the law. Equally, arresting suspects without sufficient evidence is inexcusable.
Similarly, the Witness protection Agency should be seen to work. The judiciary, must listen with
neutrality, giving the law the image of impartiality and posterity, even where injunctions, orders,
bail and bond policies are observed.
We celebrate this partnership by warning our corrupt siblings to walk the path of
corruption alone. We understand it as mutuality of minds to slain the dragon of corruption by the
excellence of key individual institutions for corrupt free Kenya. Protecting Kenyans from huge
financial loses, repayment of public debt not accounted for, poor health and medical care, low
quality education, inequitable distribution of government services and blatant abuse of law. We
are allowed to trade blame only if our contribution is above board.
Executive Director of Legal Resources Foundation Trust.