Teargassing of Children demonstrators, really?

In what was an exasperating and dejected incident which occurred yesterday which was 1/19/2015 during the #occupy playground demonstrations, where pupils alongside teachers were fired upon teargas as they protested and picketed over the alleged land grabbing of the school playground in which the children used for among other things physical education.

It is a vile practice to grab public land especially a children's playground.

This is what necessitated the demonstrations as the playground had been fenced already.

News reports can be viewed on this link- 

http://www.independent.co.uk/news/world/africa/five-children-injured-as-armed-police-use-teargas-to-stop-kenyan-playground-protest-9988570.html

 As a result of the dispersion five children were seriously injured.

So serious questions arise:

Was the act of using teargas on children necessary?

Were the armed police acting in excess of force?

What is the position of the law?

The 2010 Constitution under the Bill of Rights whose supreme role is to grant us rights. This rights are inherent in every individual and are not granted by the state as such they also belong to children. As such the state is bound to respect,protect,promote and fulfill according to the yardstick ruling laid down by the African Commission in the decision of S.E.R.A.C v Nigeria.

It is of worthy mention that at Article 21(3) the state must take extra measures to protect the vulnerable in society, children fit this category

The children in demonstrating were exercising their constitutionally enshrined rights which are the freedom of expression(Art 33(1)) and right to peaceably and unarmed demonstrate, picket and assembly (Art 37)

The reason for the protest is clear,the alleged grabbing of the school playground. Education is wide enough to transgress the walls of intellectual education to the arena of physical education this is to ensure a stable growth system of mind and body.

This rights are not absolute however in limiting them the state must ensure that the limitation is reasonable and justifiable- Was it justifiable to teargas primary school children? The children were unarmed and were peaceably demonstrating.They did not pose any threat to the police.

Were there any less restrictive means. It may be practice for police to use teargas to disperse crowds,but his crowds are normally of adult demonstrators or even university students but never primary school children who are easily cowered by adults.The state is bound to protect the vulnerable in society and as such they should have dispersed the children using a less severe method other than using tear gas which caused the children sensory irritation, this was followed by wails as the little children suffered massively at this never experienced before sensory irritation.

In finding that the police acted in excess o their force what rights of the children were violated?

According to Article 53(1)(d) Children are to be protected from cruel, all forms of violence and any inhuman treatment and punishment in analyzing the Human Rights Committee advises in Vuolanne v Finland  that we put into account :

The duration and manner of the treatment: the use of riot agents as teargas lasts between 15 minutes t 30 depending on the extent and duration of exposure.

Its physical or mental effects: the physical effects are sensory irritation in the eyes and throat. As for the mental effects the children who are not yet of majority age were greatly traumatized by the incident this is evidenced by the news clips of their collective screams

The age of the victims:this are primary school children and this is where the bone of contention arises the Act of teargassing young children violated Article 53(1)(d) which protects children against inhuman treatment or punishment.

Taking into account the best interests principles under Article 53(2), the police grossly did not take into account that in every matter concerning the child,their best interests must be paramount, not teargassing them to prevent a demonstration!

According to the jurisprudence of the Human Rights Committee it was held in Aduayom, Diasso and Dobou v Togo that citizens must be allowed to criticize and publicly evaluate their governments without fear of interference or punishment, this is distinctly contrary to what happened.

The right to not be subjected to cruel and inhuman treatment is a right that can not be limited under Article 25(a).

The bill of rights binds all organs of the state(Article 20(1)) and responsibility for actions of state agents is attributed to the state itself. 
As a result the legal giants L.S.K have plans in order to prosecute the officers who were involved in the incident.

  

Land

This is the unit that covers land law
Why Segregate Land Law?

• It is the most important means of production
• Land is constant
• Sensitivity of land policies in Kenya
• Myriad of Laws and issues that are land specific
• Land is not within human capacity 
• Land can not be destroyed
• Land is immovable

Land includes;

• The surface of the earth
• Any water body on or under surface
• Marine waters in the territorial sea
• Natural resources contained on or under the surface
• Airspace above the surface

Immovable property includes land whether covered by water or not, any estate, right, interest or easement in or over any land and things attached to the earth or permanently fastened to anything attached to the earth.

Chattels affixed to the land or a building are part of the land, they lose the character of chattels and become fixtures
This is in line with the maxim that states whatever is planted on(built) the soil goes with the soil
whoever owns the soil, it is theirs all the way to heaven and down to hell.

Fixtures;

• Must be fastened to the land
• Incapable of being removed without losing its identity 

In the yardstick case of Holland v Hodgson it was held that where stones are laid one upon another for purposes of forming a wall they become fixtures but where they are deposited in a yard for convenience stacked one on top of another then they are not fixtures

Closer home in The case of Julius Mutuma Muchene v Mwerera M'talakua  Land on which some trees had been planted was sold to the defendant , the plaintiff came back when harvest season had reached and wanted to cut down the trees citing that it was the land that had been bought and not the trees. The appellate Court held that the trial judge erred in separating the trees from the land and that when the land was sold it went with the trees.

Land Ownership and Capacity
It draws similarity from the laws of contract

• Infants: Incapable of dealing with property except where the dealing is a necessity.They are unable to hold land on their own except under trusteeship however they may enjoy interests in land
• Married Women: In Common law they were unable to hold land as the wife and husband were perceived as one however the tides have changed and pursuant to the principles of land ownership that are engraved in Article 60 of the Kenyan Constitution and the Matrimonial Property Act they are now able to hold land
• Lunatic/Persons of unsound mind: they require a guardian to deal with the property on his behalf and in the event of a suit initiated through the next friend.
• Artificial Persons: these are incorporate by law and made up of a group of persons who come together.

 Land Administration in Kenya

Pre-Colonial Period

• Land was administered in groupings of tribes 
• It was not political as it was based on the economic activity practiced
• It was communally owned
• Labor was provided by families for subsistence farming
• Any extra was sold to tribes in exchange 
• Individuals did not accumulate wealth

Colonial Period

• In 1895 Kenya was declared a protectorate of the Crown, In 1877 the East African Land Regulations was passed and this assisted the colonial government to dispossess natives land and give to Europeans
• Land alienation was by force and communities that lost their land were never compensated 
• They were resettled in other peoples land thereby creating ethnic tension
• The Lands Acquisition Act had been passed in 1894 and this gave the crown power to take land for the construction of the railway,all alienated land became crown land
• In 1902 the Crown Lands Ordinance was passed and this vested the commissioner with power to sell any vacated land to Europeans as freeholds or leaseholds
• In 1915 the second Crown Lands Ordinance was passed and this declared all land to be crown land and the commissioner could lease land for up to 999 years.The natives were now taken to reserves

The colonial land policies led to:

• Acute land shortage
• Landlessness
• Discontent
• Formation of political parties along tribal lines
• Rebellions for example Mau Mau and Maji Maji

The colonial government in order to create security of ownership sought to replace the communal land ownership with individual ownership

Independence and thereafter;

• Limited redistribution that benefited very few Kenyans
• Prime minister acted as the crown
• The President went on to allocate large tracts of land to his loyalists, ministers and family
• There were irregular allocations in forests and public land
• The regulatory framework for land was unsatisfactory

Before the 2010 Constitution there was a multiplicity of land laws, these included:

• Registration of Documents Act 1901
• Land Titles Act 1908
• Government Lands Act 1915
• Registration of Titles Act
• 1882 Indian Transfer of Property Act
• Registered Lands Act 1963
• Land Adjudication Act 1968

But they were all replaced to:

• Land Act 2012
• Land Registration Act
• National Land Commission Act

Challenges to Land:

• Clash of land tenure systems( Communal and Individual)
• Multiplicity of laws that results in inconsistency and duplication
• Excessive powers of executive over land
• Multiplicity of registers that were expensive
• Overlap of duties among officers

References:

P.L Onalo, Land Law and Conveyancing in Kenya

T.Franchesci and P.L.O Lumumba, the Constitution of Kenya

Judgements and Decrees

Judgements and Decree

Judgement

This is the official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.

Requirements: a judgement must;

·         Be written in the language of the Courts

·         When a judgement is not written by the presiding judge every page must be signed by him

·         Be pronounced in open Court after it has been written and signed

·         Be dated and signed in open Court

·         Contain direction of Court as to costs

Specific Format;

·        Concise statement of the case

·         Issues for determinations

·        The decision itself

·         Reasons for such decision

Decree

This is the formal expression of an adjudication which so far as regards the court expressing it conclusively determines the rights of the parties with regards to all or any of the matter in controversy in the suit and may be either preliminary or final.

Requirements of a Decree;

·         Must agree with the judgement

·         Must contain number of suit

·         Must contain names and descriptions of the parties

·         Must contain particulars of the claims

·         Specify the relief granted or other determinations of the suit

·         State by whom the costs are to be paid

·         Must bear the date on which judgement was delivered

·         If it is for movable or immovable property it shall order for the delivery of such property

References
Civil Procedure Rules Kenya
Civil Procedure Act
Civil Procedure Act Commentary by Steve Ouma