East Africa

East Africa

Details: East Africa; 29 August 2022; 579

An undated photo of Attorney General Kariuki Kihara at the National Assembly CAPITAL FM

Attorney General, Paul Kihara Kariuki, argues that the Independent Electoral and Boundaries Commission (IEBC) Chairman, Wafula Chebukati, cannot solely act on behalf of the Commission.

In an response filed at the Supreme Court on Saturday, August 27, the Kariuki argues that while IEBC is and independent constitutional commission established under Article 88 of the Constitution, Chebukati is an appointee of the Commission.

He cited Section 39 (3) of the Elections Act 2011 which states that the Commission shall announce the final results in the order in which the tallying of the results is completed.

The AG argues that while Article 138 the Constitution states that the IEBC Chairperson shall declare the results of the election of the President, it should not be interpreted to give Chebukati the ultimate power over other commissioners.

from right; Azimio flagbearer Raila Odinga, prof. Makau Mutua and Azimio deputy presidential candidate Martha Karua filing their petition at the supreme court on August 22, 2022 KENYANS.CO.KE

"An Act that renders Commissioners superfluous in the discharge of their constitutional duties in favour of either an individual Commissioner or a hired member of staff of a Commission would negate all known canons of constitutional and statutory interpretation," the AG stated in his response.

The government's legal advisor moots that there is a distinction between the roles of the Chairperson and those given to the Commission. He cited a ruling by the Court of Appeal in the Michael Sistu Mwaura Kamau v Ethics & Anti-Corruption Commission & 4 others [2017] case.

"It is clear from the provisions of both section 11(1) and 11(6) that the Act has separated the powers of the EACC and those of the commissioners. It is crystal clear to us that the functions of investigating and making recommendations to the DPP belong corporately to EACC and not to the secretary or the secretariat alone," Kariuki argued.

Kariuki reckoned that the law intentionally recommended that commissions are unevenly constituted for the purpose of decision making by a majority - a decision which is regarded as that of the Commission.

"That Constitution provides for an uneven minimum and maximum number of Commissioners, which speaks to provision for majority and minority in case of voting in the absence of consensus."

The Attorney General pleaded with the Supreme Court to consider various principles of interpretation of the law before making its final ruling.

Among them is interpretation based on the text and the context, where, the intent and purport of the Constitution, the objectives and aspirations, as well as the mischief to be remedied, are also brought into focus.

IEBC Chairman Wafula Chebukati releasing the presidential election results at Bomas of Kenya on August 15, 2022

KENYANS.CO.KE

He recommended the principle of harmonious interpretation - no one provision of the Constitution is to be segregated from all the others to be considered alone, but all provisions bearing on a particular subject are to be brought into view and to be interpreted as to effectuate the general purpose of the instrument.

Other principals include the purposive approach to legislative interpretation where if the literal words used in a statute create an ambiguity, the court is free to look beyond the words themselves, and consider the historical context underpinning the legislation.

The principal of a holistic interpretation which is a contextual analysis of a constitutional provision, reading it alongside and against other provisions.

This is to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances.

The AG fronted that principles such as presumption against absurdity; the presumption against unworkable or impracticable result, presumption against anomalous or illogical result and the presumption against artificial result should also be considered.

Lady Justice Martha Koome (center) and the other members of the Supreme Court bench. FILE By LAWRENCE BARAZA. Kenyans.co.ke

Details: East Africa; 29 August 2022; 575

Lady Justice Martha Koome (center) and the other members of the Supreme Court bench. FILE

With hearing of presidential election petition by the Supreme Court Judges set to begin on August 31, the final process of coming up with a judgement involves acute consideration of petitions and affidavits tabled before it.

According to Senior Counsel Charles Kanjama, the affidavits touch on technical areas and the Judges are assisted by the evidence presented before them to make a determination on which ones to adopt, collapse or throw out.

Guided by the intensity of the case from various parties, the Judges do not need to be experts in all areas, but read affidavits of technology experts and lawyers' presentations before coming up with their final verdict.

The Judges also use process of examination, cross-examination and re-examination based on lawyers' submissions from all parties to test the veracity or truthfulness and strength of evidence presented.

Charles Kanjama during a press conference on March 20. 2018. THE STANDARD

"By looking at evidence of one side and the other, and comparing them and contrasting against other information presented, the Judges can assess what is called probative value to prove the case that one is seeking. In this case, the Judges will rely on affidavits before them," Kanjama stated when he appeared in Citizen TV on Sunday, August 28.

According to Kanjama, Judges are only experts in analysing evidence and applying the law in giving the outcome after having interacted with lawyers during the petition.

Supreme Court has nine petitions before it, with Kanjama stating that the seven Judges led by Chief Justice, Martha Karambu Koome, will have to listen to all of them before rendering their verdict.

He stated that the court will follow the precedent of the 2013 and 2017 petitions where there were more than one petition but consolidated them into a summary of four issues.

Kanjama added that the Judges will allow those supporting the petition to submit jointly and those opposing to also submit jointly. Case in point is former Gatundu South Member of Parliament Moses Kuria's petition where Azimio La Umoja coalition leader, Raila Odinga, is a respondent but also a fundamental petitioner.

There are also those opposed to overturning of presidential election results, that is, the Independent Electoral and Boundaries Commission (IEBC) and the president-elect, William Ruto, who will be put in one category.

For the IEBC Commissioners who have since split into two opposing factions, Kanjama stated that the court will make a decision whether to consolidate each side before the ruling since they are being defended by different advocates but share similar interest.

"Where you have three advocates claiming to represent the same party, the court will have to resolve the question on who has the authority to represent the party, but because of tyranny of time of the petition, it is also possible that the court would reserve the question in the determination in main decision and allow all parties to submit," Kanjama stated.

There are currently nine petitions before the Supreme Court, with eight challenging the election of William Ruto as the fifth President of Kenya.

Hearing of the petitions take a record three days and will begin on August 31, after which a judgment will be delivered on or before Monday, September 5.

Supreme Court Judge Isaac Lenaola. FILE

Details: East Africa; 27 August 2022; 564

A stream of asylum seekers continues to arrive to the UK, suggesting the Home Office immigration agreement with Rwanda has not been the deterrent the government had hoped for. PA/Photo Courtesy

More than 50 per cent of refugee applications made by Rwandans in the UK this year were successful, despite the Home Office maintaining it was safe to deport asylum seekers to the East African nation.

Immigration statistics published by the government show that four of the seven Rwandans who this year applied for asylum in the UK were accepted, two were refused and one application was withdrawn.

The Home Office is reportedly planning a new deportation flight to Rwanda and has already sent out notices of intent to some asylum seekers informing them they might be on the plane.

The first scheduled flight to Kigali on June 14 was grounded hours before it was set to take off after a series of legal challenges culminating in a European Court of Human Rights decision forced the Home Office to cancel it.

An immigration lawyer in London told The National that the presence of Rwandan refugees in the UK raised serious questions over the safety of sending asylum seekers to the African nation.

“Why were those people recognised as refugees?” Sonia Lenegan said. “What were the risks they faced there such that they were given asylum?

“Home Office guidance says it is safe to send people there but obviously it isn’t safe for some people, to the extent that they are refugees here.”

While the reasons for the Rwandan applicants seeking asylum remain unclear, Ms Lenegan said the data “undermines the whole policy”.

“You can’t say that it is safe for everyone when clearly it isn’t,” she said.

In a statement sent to The National, a Home Office representative said that “all asylum claims made in the UK are carefully considered on their individual merits, against a background of relevant case law and up-to-date country information”.

Since 2015, 158 Rwandans, including dependents, had claimed asylum in the UK and 37 were granted protection in the form of asylum, resettlement or another form of leave.

The Home Office added that while Rwandans cannot be removed under the UK government's agreement with the East African nation, “a Rwandan who fails their asylum claim or becomes a foreign national offender can be removed under the usual process”.

At a High Court hearing on June 10, it was revealed that the Home Office made misleading statements about UN involvement in and support of the Rwanda plans.

However, the UN’s refugee agency has repeatedly expressed “serious concerns” over the scheme.

Clare Moseley, founder of the charity Care4Calais and party to the legal proceedings brought against the government, said she was worried about potential human rights abuse of refugees in Rwanda, “including that they could be forced to join the country’s army and sent to fight in neighbouring states”.

The most recent report from Amnesty International on Rwanda’s human rights record notes breaches of the right to a fair trial, freedom of expression and privacy. It also lists enforced disappearances, allegations of torture and excessive use of force.

Britain has already made payments to Rwanda as part of its £120 million ($147m) asylum scheme, which the Rwandan government confirmed it had already begun spending, despite legal challenges delaying the introduction of the policy.

No 10 Downing Street has not yet revealed how much the payments were nor when they were made under the “confidential” deal signed in April.

Ms Lenegan accused the UK of “taking advantage of Rwanda”.

“Why should the UK take advantage that it is richer than Rwanda to abdicate its responsibility under the Refugee Convention by paying them?” she asked.

The lawyer said the money would have been better invested in the Home Office, which has been plagued by a backlog of asylum cases and staff shortages.

“We could have seen some really positive changes, people wouldn’t be left in asylum accommodation for so long, we would have cleared out hotels a long time ago, we would have decisions on applications better and quicker,” she said.

A High Court hearing to determine whether the policy to send some asylum seekers to Rwanda is lawful is due to start on September 5 in London. By Layla Maghribi, N UK

Details: East Africa; 28 August 2022; 556

The United Nations High Commissioner for Refugees, Filippo Grandi, concluded a visit to the United Republic of Tanzania today with a call for more donor support for solutions, including sustainable voluntary returns.

During his three-day visit, Grandi met with Tanzania’s President, Samia Suluhu Hassan, and discussed the importance of creating favourable conditions for the return of Burundian refugees, while ensuring all refugees in Tanzania are protected and assisted.

Tanzania currently hosts over 248,000 refugees and asylum-seekers, mainly from Burundi and the Democratic Republic of the Congo (DRC), and most reside in the Nduta and Nyarugusu refugee camps in the country’s Kigoma region. Since September 2017, some 142,000 Burundian refugees have voluntarily returned to Burundi.

He commended Tanzania and its people for their longstanding history of welcoming and hosting refugees, as well as efforts in advancing protection and solutions for refugees in the country, in line with the Global Compact on Refugees.

“I am truly encouraged by the Government’s efforts to strengthen the protection of refugees, and stand alongside it,” Grandi said. “UNHCR’s commitment to support Tanzania and safeguard the rights of refugees hosted here remains steadfast.”

In Nyarugusu refugee camp, in the northwest of the country, Grandi met with Burundian and Congolese refugees, partners and local authorities. He visited a vocational centre in the camp where refugees and Tanzanians from the nearby villages were learning practical skills such as tailoring and vegetable gardening side by side. Grandi interacted with communities involved in a community biomass briquette production project, which aims to reduce the dependency on firewood and prevent environmental degradation.

He lauded the Tanzania Government’s recent efforts to issue birth certificates to refugee children, noting that the move would confer important legal protections on them and reduce the risk of statelessness, while also providing a form of identity when they return to their country of origin.

Grandi also witnessed how funding shortfalls are directly impacting humanitarian efforts on the ground. As of August 2022, UNHCR had received only 27 per cent of the resources needed in Tanzania for this year.

“The Burundi situation remains significantly underfunded’” Grandi said. “I appeal to donors, including development partners, to provide funding and investment in Tanzania and boost the provision of basic services. Lack of funding would risk reversing hard-won gains.” He also called for enhanced support in Burundi to help tackle obstacles hindering returns.

“Tanzania has for over four decades generously hosted large numbers of refugees, and we must not let them down,” Grandi stressed.

“We will continue to work with the Government and partners to improve the well-being and livelihoods of refugees and the host communities in Tanzania, and support the voluntary return of refugees to Burundi,” he added.

Grandi’s visit follows a High-Level Dialogue convened by the Government of Tanzania and UNHCR in March 2022 to agree on steps to strengthen refugee protection and solutions. - UNHCR

Details: East Africa; 27 August 2022; 612

The Independent Electoral and Boundaries Commission (IEBC) Vice-Chairperson Juliana Cherera has filed her affidavit in the case challenging William Ruto's election at the Supreme Court.

In the 104-page document, Cherara has laid bare how the IEBC Chairman Wafula Chebukati operated in an opaque manner which she claims 'effectively subverted the constitution and the election laws in the tallying and verification of the presidential election results.

Cherera who is one of the four commissioners who disowned the presidential results, informs the Apex Court that the presidential election results declared and announced by Chebukati on August 15 were not from IEBC and that they belonged to Chebukati.

She adds that the actions preceding the declaration of the presidential election results were a continuation of the Chairperson's trend of lack of transparency and contempt for fellow commissioners that has characterised his tenure in the commission.

"By his actions and conduct, therefore, the chairperson mistakenly turned the commission into a one-person show and in the process, effectively subverted the constitution and the elections laws," Cherera states in part in her court papers.

She further argues that the process adopted during the tallying and verification of the presidential results was compounded by lack of transparency.

Through lawyer Apollo Mboya, Cherera adds that the unverified presidential election results which saw Chebukati declare William Ruto as the President-elect did not indicate the total number of registered voters, the total number of valid votes cast to support the percentages scored by the four candidates or the number of the rejected votes, if any.

Cherera further reveals that at no point did any commissioner seek to 'moderate' election results as per their constitutional mandate.

She further states that the results read out at the national tallying centre had variance and errors which representatives of the presidential candidates and political parties brought to the attention of the court verbally and in writing. By Nancy Gitonga, PD