The National Cohesion and Integration Commission’s Complaint Process

The National Cohesion and Integration Commission’s Complaint Process

Background:

In Kenya freedom of expression is enshrined in the Constitution of Kenya under the provisions of Article 33 as stipulated therein 

The National Cohesion and Integration Act provides for the establishment of the National Cohesion and integration Commission (NCIC).The commission was set up to deal with the problem of tribalism which was identified as one of the root causes of violence following the 2007 elections .

In the discharge of its functions the NCIC is under the duty to ensure that the actions of all citizens promote National Cohesion and do not sow seeds of hatred .This is particularly important during political campaigns. Parties, Candidates and their supporters are also under duty to ensure that they do not engage in actions that amount to hate speech.

What is Hate speech?

Hate speech is variously defined as any utterances of words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity, race or religion.

It is also defined as using threatening, inciting, abusive, or insulting words or behavior, or display of any written materials with the intention of stirring ethnic hatred; it also refers towards or actions which incite hatred, disaffection or prejudice based on ethnicity, race, colour or sex.

Under Article 33(2) of the Constitution of Kenya, the right to freedom of expression does not extend to-

• a)   Propaganda for war;
• b)      Incitement to violence ;
• c)      Hate speech; or
• d)      Advocacy of hatred that : -
• (e)    Constitutes ethnic incitement, vilification of others or incitement to cause harm; clause (3) states that: in the exercise of the right to freedom of expression, every person shall respect the right and reputation of others.

In other words, your right and fundamental freedom end up where mine starts in respect of the same rights.

What the Law states:

Section 62(1) – Any person who utters words intended to  incite feelings  of contempt ,hatred, hostility ,violence or discrimination against any person, group or community on the basis of ethnicity ,race ,or religion commits an offence and shall be liable on conviction to a fine  not exceeding one million shillings or to imprisonment for a term not exceeding five years, or both such imprisonment  for  a term not exceeding  five years ,or both such imprisonment and fine.

Section 13 of the same National Cohesion and Integration Act, 2008, provides that –

(1)   A person who

a)      Uses threatening, abusive or insulting words or behavior or display any written materials

b)      Publishes or distributes written materials

c)       Presents or directs the performance the public performance of a play;

d)      Distributes, shows or plays a recording of virtual images; or

e)      Provides, produces or directs a programme; which is threatening, abusive or insulting or involves the use of threatening abusive or insulting words or behavior, commits an offence if such person intends to stir up ethnic hatred, or having regard to all circumstances, ethnic hatred is likely to be stirred up.

(2)   Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.

(3)   In this section’ ethnic hatred’’ means hatred against a group of persons defined by reference to colour, race, nationality (including citizen or ethnic or national origins.

Discrimination based on ethnicity and Religion.

Under Section 3 (1) (2) (3), (4) and section 6(1) & (2) of the Act - A person discriminate s against another by:

v  Treating a person from one ethnic or religious group less favorable than one would treat another from  a different ethnic or religious group.

v  Applying a requirement or condition which is unjustifiable or detrimental to a person from a particular ethnic or religious group.

v  Subjecting another to harassment on ethnic or religious ground for the purpose of violating their dignity or creating a hostile environment.

What is a Complaint under this Act ?

Under this Act, a complaint is a written expression of displeasure and dissatisfaction over discriminatory treatment that sets out reasons and circumstances that the complainants believe offer sufficient ground to support their claim against another person, persons or entity.

The basis of the action in question must be ethnic, racial or religious.

v  A person shall complain to the commission by loading a written complaint by hand, facsimile or other electronic transmission or post.

v  Any person who claim that another person has contravened a provision   of the Act in relation to that person may complain to the Commission as prescribed above.

v  Two or more persons may complain jointly.

v  A complaint may be made by or against an individual as well as a body of persons whether corporate or unincorporated.

v  In order to complain to the commission, it is not necessary for the alleged concentration to relate to the complainant.

The Act provides that the Commission may conduct investigations on its own motion

How to Lodge a Complaint :

Under section 43and 44 of the Act : -

v  Any person who claims that a person has discriminated against him/her or another on racial or ethnic grounds engaged in hate speech inciting or inflammatory talk may complain.

v  Two or more persons may complain jointly and the complaint may be made by or against individuals or organizations.

v  A person shall complain to the commission by lodging a written complaint to the commission by hand, fax or other electronic transmission and the commission shall notify the respondent in writing after receiving it.

Under section 25(i)-the commission can on its own accord investigate issues of ethnic and racial discrimination as well as sources and channels of hate speech and inflammatory statements.

Under section 48(I) –The Minister (sic - for internal security) may also refer any matter to the Commission if he/she considers that will be obliged to launch an investigation

Complaints Handling Procedure

Upon the receipt of a complaint:

1.      The commission must notify the respondent about the complaint as soon as possible

2.      The commission may decline to entertain some complaint if the complaint falls within the provisions of Section 45 (I) of the Act.

3.      Where the commission declines to entertain a complaint, it must notify the complaint within Sixty (60) days was lodged.

4.      Further, before the commission declines to entertain a complaint it may, by written notice ,invite any person to attend before it or to produce any document.

5.      The commission may decline to accept documents if it has had no substantive response from a complaint twelve months after a request by the commission for such a response.

6.      The commission shall refer a complaint to the secretary of it consider s it reasonably possible that such a complaint may be successfully conciliated.

7.      Where the commission does not consider it reasonably possible that a complaint may be successfully conciliated it shall notify both the complaint and respondent in writing.

8.      The commission shall set a complaint down for hearing if it does not consider it reasonably possible that the complaint may be successfully conciliated .Such hearing shall be set in motion once the complainant has written to the commission requiring the commission to set down the complaint for hearing.

9.      The commission may dismiss a complaint in 8 above if the complainant does not write to the commission requiring a hearing.

10.  The commission shall act as in 8 above if its efforts at conciliation fail.

If the commission considers that a complaint:-

·         Is frivolous misconceived or lacking in substances.

·         Involves subject matter that has been adequately dealt with by a court; or

·         Relates to an alleged contravention of the Act that took place more than twelve months before the complaint was lodged then the commission may decline to entertain the complaint by notifying the complainant and the respondent in writing within sixty days after the day the complaint was lodged

Before declining to entertain a complaint the commission may by written notice invite any person to attend before the commission or a member of staff of the commission for the purpose of discussing the subject matter of complaint or produce any document specified in the notice.

The work of the commission extends beyond the mission of encouraging and promoting ethnic religious and racial harmony among the diverse communities in Kenya

Complaint against Constitutional Commission

Like judges members of constitutions commissioners and holders of independent offices enjoy security of tenure. What this implies is that they cannot be dismissed at will.

However under Article 251(i) of the Constitution of Kenya a member of a commission(other than an ex-official member)or the holder of an independent office may be removed from the office only :-

a)      Serious violation of the commission or any other law ,including contravention of chapter six;

b)      Gross misconduct whether in performance  of the performance of the members or office holder functions or otherwise

c)      Physical or mental incapacity to perform the function of office;

d)      Incompetence ;or

e)      Bankruptcy

The commission of Administrative Justice

In Kenya, there is the office of the Ombudsman. This office is mandated to receive complaint from the citizens and is also obligated to address issues of maladministration in respect to services failure inaction in efficient discourtesy incompetence and unresponsiveness in public service.

The commission on administrative justice seeks to operationalize the provision of Article 47 respecting the right of every person to fair administrative action in public service.

The term public service means the collectivity of all individual other than State Officers performing a function within a state organ. A” state organ” means a commission office Agency or other body established under the constitution of Kenya.

Under Article 75, respecting the conduct of state officers;

1.      A state officer shall behave whether in public and official life, in private life or in association with other persons in a manner that avoids;

a.      Any conflict between personal interest and public and official life.

b.      Compromising any public or official interest in favor of a personal interest; or

c.       Demeaning the office the officer holds

It is instructive that members of parliament and member off county, assemblies are State Officers and at the some time representatives of the people .Thus the provisions of Article 75, above applies to the m.

In conclusion .The national cohesion and integration commission is a very critical state organ that is enjoined to keep in check and tame wayward politicians who have no scruples creating civil disturbance and fomenting cheeps in furtherance of vanity and pursuit of illiberal within.

This commission must create a public awareness that the Kenyan people are entitled to make citizen arrest of such politicians and institute proceedings against them under the National Cohesion and Integration Act of 2008 – Mfalme Davis.

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Kivuitu: You Are Not Almighty God To Judge Me

Kivuitu: You Are Not Almighty God To Judge Me

BACKGROUND
It is not  every other day a senior public figure receives a damning note from a private citizen, but on the 14^th day of May, 2008, a political activist Shailja Patel decided to seize the moment and slipped a copy of her open letter to the Chairman of the Electoral Commission of Kenya (ECK), Samuel Kivuitu at a forum on the Post-Election-Violence (PEV) sitting in Nairobi.
          The late kivuitu was the chair of the now defunct Electoral Commission of Kenya. As the Returning officer in the presidential election of Dec 27, 2007, it was his official duty to announce the presidential candidate who had scored the highest number of votes and declare him the winner and eventual President-elect.
          In Kenya, Presidential Election are conducted together with the general elections for Parliamentary and Civic candidates. Electoral Commissioners announce the winners of parliamentary contenders while returning officers announce the civic wards winners.
          Even in the event where there was only one candidate validly nominated person as the presidential candidate, the Returning officer is  obligated by the election law to duly declare him the winner and the president-elect at a designated place and in presence of the Chief Justice as specified by the law.
          The law also requires that any person who is not satisfied with the declared results be they as a candidate or voter ought to duly file an electoral petition within time specified for filing of the same.

Complaint(s) Against Constitutional Commissioners

          Like judges, members of constitutional commissioners and holders of independent offices enjoy security of tenure. What this implies is that they cannot be dismissed or disbanded at will.
          Under Article 251(1) of the Constitution of Kenya, A member of a commission (other than an ex-officio member), or the holder of an independent office may be removal from the office only for:-

(a)        Serious violation of the constitution, or any other law, including a contravention of Chapter Six;

(b)      Gross misconduct, whether in performance of the member’s or the office-holder’s functions or otherwise;

(c)       Physical or Mental incapacity to perform the functions of office;

(d)      Incompetence; or

(e)       Bankruptcy.

(2)            A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground.

(3)            The National Assembly shall consider the petition and, if it is satisfied that it discloses a ground under clause (1), shall send the petition to the President.

(4)            On receiving a petition under clause(3), the president:-

(a)             May suspend the member or office holder pending the outcome of the complaint; and

(b)            Shall appoint a tribunal in accordance with clause (5).

(5)            The tribunal shall consist of:-

(a)             A person who holds or has held office as a judge of a superior court, who shall be the  chairperson;

(b)      At least two person who are qualified to be appointed as High Court Judge; and

(c)       One other member who is qualified to assess the facts in respect of the particular ground for removal.

(6)      The tribunal shall investigate the matter expeditiously, report on the facts and make a binding recommendation to the president, who shall act in accordance with the recommendation within thirty days.

(7)      A person suspended under this article is entitled to continue to receive one-half of the remuneration and benefits of office while suspended.

The Commission on Administrative Justice

          In Kenya, there is the office of the Ombudsman. This office is mandated to receive complaints from the citizen and obligated to address issues of maladministration in respect of service failure, inaction, inefficiency, ineptitude, discourtesy, incompetence and unresponsiveness in public service.
          This Commission on Administrative Justice seeks to operationalize the provision of Article 47, respecting the right of every person to fair administrative action in public service.
          The term “public service” means the collectivity of all individuals, other than State Officers, performing a function within a state organ. A “state organ” means a commission, Office, Agency or other body established under the constitution of Kenya.

Protection of public officers:

Under the provisions of Article 36 of the Constitution of Kenya:-

          A public officer shall not be:-

(a)       Victimized or discriminated against for having performed the function of office in accordance with the constitution or any other law; or

(b)      Dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.What the foregoing paragraph implies is that a public officer who considers himself defamed by the publication of a defamatory statement has the right to institute civil proceedings in action for slander in respect of words calculated to disparage him in any office, profession, calling trade or business held or carried on by him at the time of the publication of that defamatory statement.

Under The Defamation Act, Cap. 36 of the Laws of Kenya, a defamatory statement means libel, slander of title, slander of goods and other malicious falsehoods.

In any action for libel or slander, words are interpreted in their most natural meaning. One acceptable definition of defamation is that it is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person.

Elements of defamation

The term defamation consists of libel and slander. While the former are statements contained in a book, newspaper, magazine or any other publication materials, the letter refers to a defamatory statement which is contained in a speech or in some significant sign or gesture, or in an understandable language.

Libel is actionable perse, i.e. without prove of damage. Slander is only actionable if special damage can be proved by the plaintiff.

The essential elements of defamation are as follows:

(i)              The words complained are of defamatory in nature.

(ii)            The said defamatory words must refer to the plaintiff, by name or by virtue of a description.

(iii)        The words must be published to some person other than the plaintiff, and communicated in a manner which is intelligible and also in an understandable language to the recipient(s).

Defences to defamation:

(a)     Justification:

This defense is raised when the defendant pleads that statement was indeed true. However, the defendant must prove the truth of allegation made against the plaintiff. In this case, it is acceptable that no person can claim that his character has been damaged by the publication of the truth.

(b)   Fair comment:

It is also acceptable that a person is entitled to express his opinion on matters of public interest.
Freedom of expression is enshrined in the supreme law under Article 33 of the Constitution of Kenya. However, under clause (2) (d) (i), the right of freedom of expression does not extend to-(d) advocacy of the hatred that:-

(i)     Constitutes ethnic incitement, vilification of others, incitement to cause harm.

Under clause (3) of Article 33, the exercise of the right of expression by any person shall respects the rights and reputation of others.
For the defence of fair comment to succeed, the defendant must prove that his expression was one of honest opinion and not an assertion of fact, and that the comment was fair in every respect. Comment must be on a matter of public interest and not, for this instance, on the private life of an unknown person.
However, if the plaintiff proves that the statement was not a fair comment based upon the facts, and that the defendant was motivated by malice, he will had successfully destroyed the defense of fair comment.

(c)    Privilege:

Defence of privilege can be available to the defendant if he can prove that the alleged defamatory statement was made from a privileged occasions. A privileged occasion is either subject to absolute privilege or qualified privilege.

(i)     Absolute privilege

It is not actionable to make a rather defamatory statement if it was made pursuant to the proceedings in a privileged occasion such as the National Assembly session or judicial proceedings by judge, related to matter in trial.
In addition, all communications made by a public officer to another public officer in the course of official duty are also absolutely privileged.

(ii)  Qualified privilege:

This privilege is available if one can prove that:

1.       He made the statement in pursuance of a legal, moral or social duty and where is a reciprocal duty to receive such a statement. Legal, moral or social duty are very compelling pleas of qualified privilege. But then, the court must be satisfied that it was all in pursuance of a public interest.

2.       Fair and accurate reports of parliamentary and judicial proceedings, meetings of local authorities, companies and statutory corporations when the public have the right to attend.

However, the report must not only be fair but also accurate in every aspect. Otherwise, to quote such a report out of context as to include your biased opinion would deny one the plea of qualified privilege.

3.       Common interest:

Some examples where this element of common interest can be pleaded is where a parishioner would address a complaint accusing his pastor to his bishop, or where a client would file a complaint to the lawyers’ body accusing his counsel of professional misconduct or inadequacy; or a litigant addressing a complaint against a judicial officer to the secretary of the Judicial Service Commission (J.S.C).

Ms Shailja Patel’s Note to Kivuitu:
Ms Patel’s note read in part:
“It’s not too late, to recover your humanity. To open your eyes to the suffering and longing of this nation. To admit that something went terribly wrong. If you could only rise to the desperate need of this turning point in Kenya’s history, you could redeem yourself with the simplest of words: “I’m sorry.”

Kivuitu Email to Patel:
The full text of kivuitu’s mail read as follows:
“Dear Madam, I thank you for your letter dated 14^th may 2008, and concerns you expressed therein.
The Holy Bible has taught me to late leave judgment of others to God the Almighty. I do not know if you are the Almighty God or not but you did not seem to be Him when I saw you on 14^th May, 2008.

          You are all the same entitled to your views. I however humbly deny any wrongdoing. The laws require that I declare the winner of the presidential elections once the Commission determines the Candidate who scored the highest marks, and led 25% of votes in his/her favour in 5 Provinces.

          That is all I did, and there was no other candidate or his/her agent seeking me to hold on and re-tally, no.

          After announcing the results, fellow appeared before me and requested me to hand over to him the president’s certificate. I told him that that is only done to the winner personally and directly.

          The fellow then informed me that Hon. Kibaki was awaiting to be sworn as the president and the Chief Justice was present, duly robed, for the assignment.

          He requested me to take the certificate there. I had no business retaining the certificate. It was not mine. The law says it be given at the place the president is to be sworn. I obeyed the law and took it there.

          Commissioners do not count vote. Commissioners do not tally counted results. They simply verify these. They do these through Commissioner’s senior officers. Commissioners announce results as presented to them by these officers. Or what else do you suggest they should do?

          My conscience is absolutely clear. I know how dangerous it is to delay announcing the results. There are several interests in the results, and are all equally important. I was hurt in 2002 for not announcing results which I had not yet received.

          I am not a seer, like you seem to be, to be sure that there would have not been death if I postponed the announcement of the results.

          With my humblest view I do not share the view that people killed others or destroyed the properties belonging to others, on account of my announcement of the winner.

          I believe that irrespective of whoever of the two top candidates won, there was going to be violence. That the environment was created by the politicians themselves. You seem however to worship them as deities.

          Secondly, I respectfully believe the killers, who had been already charged with rhetoric, reasoned thus why did Kibaki or Kalonzo get these votes in our areas?

          They looked round and saw kikuyus, kambas and other “mandoandoas” (as they had been told call them). They reasoned these were the ones who voted thus and must eliminate them.

          Even in poor coast, suspected “wrong” voters were ordered to pronounce certain words. Once they did not do so like the locals, they were violently evicted and robbed of  their properties and raped. Thus the genesis of our tragedy is in our dirty politics and negative ethnicity.

      It is bad luck we have kind people like you who are too naïve to realize the depth of our malaise. No wonder facile and dishonest assignment that Hassan Omar advanced thrilled some of you.

      This confirms Kenya is in for hard times for a long while to come. Have a nice day Ms. Patel.”

Postmortem Analysis & Fair Comment:

The late Samuel kivuitu was a straight-talking and a no-nonsense chair of the now defunct Electoral Commission of Kenya (E.C.K). In his hey-days, he was a firm stickler of the rules of law and natural justice that hold that: (i) no man is a judge in his own cause, thus ensuring no bias; (ii) there must be bonafide (good faith) and; (iii) each party must be given an opportunity of knowing the case against him and of stating (prosecuting his own case).

          As a keen lawyer and firm legislator, he knew and believed that all anti-establishment elements tend to disguise their partisan politics by ascribing to themselves the civil or human rights activists’ tag. As a senior public figure, he loathed everyone whom he perceived to be playing dirty politics or undermining the authority of the ECK, and was a hard-tackler who would readily go down with anyone who ruffed his feathers.

 Anyone who would deliberately, or otherwise, cross his path got a fair share of his scathing attack and equally readily become a plaything of his rather rapid sarcasm.

          It was such kind of a man Ms Patel had tried for size as if to mock his conscience and convictions. And Mr. Kivuitu seized the moment to not only clear his conscience but also to hit back at the naivety and ignoble shame of those who ‘worshipped politians as their deities’.   *Mfalme Davis