Petition No. 286 of 2013 (TJRC):
This is a Petition filed with reference to the Report of the Truth Justice and Reconciliation Commission. The Petitioners seek to have certain portions of the TJRC report expunged for being inter alia contrary to the constitution. KNCHR is appearing in this case as an Interested Party.
Our role as KNCHR is to give insight on human rights violations that were meted on the Kenyan people by officers of the state at various levels in the past. Given the lapse of time and other factors, it may not be practicable or possible to single out and prosecute each and every officer that may have been involved in these abuses. Therefore, the recommendation for an apology is a mechanism that is adopted by Truth Commissions worldwide and KNCHR as an interested party believes that the rendering of an apology as recommended by the TJRC, is an important mechanism that is usually adopted in order to achieve Restorative Justice.
In this matter KNCHR contends that a right is entitled to a person by virtue of being a human being and not an institution or office. Therefore, it is paramount to note that the interest of the public overrides individual interest. And in interpreting the Constitution, all provisions of the Constitution bearing upon a matter should be considered together; the principle of harmonization. This means that where the Constitution contains several provisions relating to an issue, all these provisions must be looked at as a whole. The matter was mentioned on 5th November 2013 during which the court was to give directions as to how the matter shall proceed given that the TJRC, which was named as a respondent has since ceased to exist by operation of law. The matter is coming up for parties to highlight issues on 11th March, 2014.
Petition 266 of 2013-Baby A v. AG (Intersex Case):
In this Petition the Court ordered the parties involved to come up with a framework that would recognize an intersex person and their rights in the event of any medical procedures to be conducted. The KNCHR’s interest in this matter is to bring to light the plight of intersex children in general and to urge the court to interpret the constitution and develop the law in a manner that would enable intersex children and intersex persons in general to enjoy their rights in an open and democratic society such as ours. In pursuit of this, KNCHR as the 1st Interested Party will seek to answer the following questions:
- Who is an intersex person?
- What are the vulnerabilities of an intersex person/ Children?
- What are the legal gaps in the protection of intersex person?
- What can be drawn from international best practices, other jurisdictions and our own domestic experiences in terms of filling the identified legal gaps in the protection of intersex persons?
- A declaration that intersex children are entitled to and or guaranteed to the rights under Articles 2, (1), (4) & (5), 10, (1), (2a & b), 19 (1), (2) & (3), 22(1) & (2), 23 (1) & (3), 27 (1), (2), (4), (5), (6) & (7), 28, 29(a, c, d & f), 31(c) 43(a), 52(1), 53(1a, c, d & e), (2), 165 (3), 258 and 260 of the Constitution, part II of The Children Act and in all the applicable international instruments.
The next hearing is on 19th March, 2014 for parties to highlight their submissions.
Petition No. No. 127 of 2012 KNCHR vs. Attorney General and 2 others:
This is a constitutional Petition that seeks to compel the Police to among others conduct a public inquiry on all reported cases of extra judicial killings by the police and also provide compensation to one of the families of a victim of extra judicial killings. It is hoped that the case will serve to enhance police accountability and move towards comprehensively addressing the perennial cases of extra judicial killings in Kenya. The matter is coming up for hearing on 24th March, 2014 for parties to highlight their submissions.
Petition No. 393 of 2013- the National Conservative Forum Vs Attorney General
The National Conservative Forum filed the suit on the grounds that the older and the disabled persons continue to face discrimination when accessing public transport and in accessing various buildings. The Petitioner prays that the Cabinet Secretary for transport and communication formulates a policy framework to guide the realization of the rights comprised in Articles 53, 56 and 57 of the Constitution. The KNCHR was enjoined in this matter as an interested Party based on its mandate of promotion and protection of human rights in the Republic.
Petition No.132 of 2013 Kenya National Commission on Human Rights v. The Honourable Attorney General
This is a Petition filed by KNCHR seeking to nullify the approval and assent of the Presidential Retirements Benefits (amendment) Act No. 10 of 2013. The contention is that, in drafting and enacting the Presidential Retirement Benefits (Amendment) Bill 2012 and the Retirement Benefits (Deputy President and Designated State Officers) Bill 2012, Parliament, and the President, ought to have consulted with the Salaries and Remuneration Commission according to the Constitution of Kenya, 2010. The Salaries and Remuneration Commission was neither consulted nor involved in drafting the two Bills. The Petition seeks a declaration that both the President and parliament Contravened Articles 10, 73 (2) (c) (ii) & (d), 75 (1) (a) & (b), 230 (4) (a), of the Constitution in assenting into law, the Presidential Retirement Benefits (Amendment) Act 2012.
Petition No. 324 of 2013 Hussein Khalid & others VS The Hon. A.G. Occupy Parliament
This matter involves a number of civil society organizations and numerous members of the public that agreed to organize a demonstration to protest the action of the Members of Parliament in seeking to remove the members of the Salaries and Remuneration Commission from office as well as for planning to flout the Constitution by setting their own salaries and benefits. Some of the members who participated in the demonstration were arrested and charged with inter alia, offensive conduct conducive to a breach of peace. KNCHR seeks to be enjoined as an interested party to highlight human rights violations in the manner in which the petitioners were arrested and taken to court. Our application has been filed and will be argued once the Court allocates a hearing date.
Petition No. 502 of 2013 KNCHR Commissioners’ case
The matter was filed soon after the advertisement for the positions of Commissioners for KNCHR. The matter sought to stop the interviewing of Commissioners and sought that the prior Commissioners that were interviewed were to be forwarded to the President. The parties had submitted their pleadings and the Judgment was read on 21st January 2014.
In its judgment High Court nullified the decision by the Attorney General to recruit new commissioners to the commission. The court observed that the Attorney General had erred in law in forming another selection panel parallel to the team that had shortlisted three nominees two years ago. The court in its judgment gave the following final orders: that the President had no powers and, or discretion to decline and, or refuse to forward a list of candidates to the National Assembly, shortlisted by the Selection Panel appointed under Section 11 (1) and (2) of the Kenya National Commission on Human Rights Act, No.14 of 2011 for consideration for either approval or rejection and that the Hon. Attorney-General had no powers under the Act to reconstitute a selection panel and advertise for fresh applications for the position of Chairperson and member of the KNCHR other than in the manner contemplated under Section 11(10), (11) & (12) of the Kenya National Commission on Human Rights Act, No.14 of 2011. The president was directed to nominate one person from the list submitted by the Selection Panel for the Appointment of the Chairperson and Member of KNCHR as such Chairperson and Four persons as members before forwarding the said names to the National Assembly within the next 21 days of the order.