Handling Stolen Goods

Handling Stolen Goods

So with the financial crisis that’s global, it seems economic to buy that second hand phone,laptop or any other electrical gadget from so called brokers, we purchase it without any question as to its origin more often than not it has been stolen thus no valid title passes to us upon purchase.

In law this is the principle of possession of stolen property, it applies to cases of theft and theft-related offences. A rebuttable presumption arises in Court when it believes in its wisdom that the person in possession of the goods knew or had reason to believe that the goods were stolen or otherwise unlawfully received. It doesn’t apply to where the possessor is not the thief, however if you are found with stolen property of which you cannot account for then it is presumed that you are the thief[1]or handler by receiving.

The possession raises a presumption of guilt in connection with any further crime.

Doctrine doesn't apply to all cases of theft. The general rule is that where it is proved that property has been stolen and very soon after the stealing the accused has been found in possession of it then it is open to the court to find him guilty of stealing or handling by way of receiving on the basis of the particular facts and circumstances of the case.

Ingredients of the offence:

1.      Ownership of the article

2.      Theft of the article

3.      Recent possession by the accused[2]

The burden is on the accused to explain and absence of a plausible explanation fuels the fire and leads to a likely conviction.

The time and application of the presumption is unlimited to time as it will vary according to the article that has been stolen. For instance 3 months has been held to be sufficiently recent for a motor car[3], the court must note the scope and limitation of the doctrine eg 7 months after a stolen tire pump was found was held to not be recent[4].

Presumption of Recent Possession v Presumption of Innocence

1.      The presumption of recent possession is a presumption of fact and not a presumption of law as the presumption of innocence[5].

2.      The presumption of fact does not displace the presumption of innocence thereby shifting the burden to the accused of producing legal proof of the innocent origin of the article. Burden remains on the state, the accused is merely expected to state how it originated[6]

Defences

Honest claim of right, an honest claim of right is a defense, where one honestly asserts what he believes to be a lawful claim even though it is unfounded in law or fact, however absurd prevents the taking from being theft.[7]

It may appear that a claim of right supports a plea of ignorance of the law but where it raises the benefit of doubt, it should be accorded to the accused.

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[1] Chaama Hassan Hasa v The Republic (1974) KLR 6 1976

[2] Seif Ally v The Republic (1976) LRT 215 (J Mwakibete)

[3] Odhiambo v The Republic 2002 1 KLR 241

[4] Abdullah Ibrahim v R (1960) EA 43( J Law)

[5] Mwihambi s/o Chinyele and another v Regina( 1953) 2 TLR

[6] Rex v Hassani s/o Mohammed alias Kinyonyoke 1948 15 EACA 121

[7] Oyat v Uganda 1967 EA 827( Sir Udo Udoma)

Theft by Servant

Theft by Servant

Ever had that temptation to appropriate your employer’s funds? Ever heard that temptation to convert official money so as to buy that gigantic smart phone?
Well hope you resisted it because you would have committed an aggravated form of theft[1].Section 281 of the Penal Code[2] succinctly states that if the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for seven years.  From this we can deduce that the ingredients are;

1.      Offenders of this offence must be either clerks or servants( employees)

2.      Things capable of being stolen

3.      Fraudulent

4.      Stolen matter is employers property/or came into offenders possession by virtue of employer

This normally occurs when a master has entrusted goods to his servant and servant is known to have custody of the goods but not ownership. If money is received on someone’s behalf then it is the property of the person on whose behalf it has been received. 

Jurisprudence in this area states that;

1.      To determine whether someone is a servant we look at whether he/she is bound to obey his orders as to what work he should do and how he should do it[3]. Even conductors who take fare but give the employer a lesser sum are liable for theft by servant[4] as this money is gotten by virtue of his employer entrusting him this position.

2.      Things capable of being stolen[5]

3.      Fraudulent Taking/ Conversion: Fraudulent taking is the used in a manner that would be rejected by the employer. Thus it would not be theft if money given by employer was used in circumstances that would not be objected to by the owner[6] as this would negate the element of fraudulent taking. Conversion on the other hand is the using of something in such a way that is inconsistent with the owner’s rights.

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[1] Uganda v Matovu (1974) EA 195(C.J Wambuzi)

[2] Chapter 63 Laws of Kenya

[3] Afzal Khan Awan v R (1958) EA 492

[4] Gakubu v Republic (1968)EA 395 (CJ Farrell)

[5] Section 267 Ibid (n 2)

[6] Yusuf v Republic (1970) EA 276 (C.J Georges)

National Environmental Management Authority and Public Procurement Administrative Review Board

By Camille Amolo and Assa Mbagera

What Are Tribunals?
Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not have penal jurisdiction.

NATIONAL ENVIRONMENT TRIBUNAL
The National Environment Tribunal (NET) is created under Section 125 of the Environmental Management and Coordination Act (E.M.C.A) of 1999.

Functions of N.E.T    
-To hear and determine appeals from National Environment Management Authority’s decisions and other actions relating to issuance, revocation or denial of Environmental Impact Assessment (EIA) licences or amounts of money to be paid under the Act and imposition of restoration orders;
-To give direction to NEMA on any matter of complex nature referred to it by the Director General; and
-In accordance with the Forest Act No. 7 of 2005, NET is mandated to review decisions of the board under sections 33 and 63.

Composition of the Tribunal 
The National Environment Tribunal as established under section 125 of EMCA consists of five members nominated as follows:
-A Chairman nominated by the Judicial Service Commission (Currently Donald Kaniaru)
-Two lawyers, one nominated by the Law Society of Kenya and the other appointed by the Minister; and
-Two persons with exemplary academic competence in environmental management appointed by the Minister.

Power of the Tribunal 
On receiving an appeal or referral, the Tribunal shall enquire into the matter and:
-Make an award, order or decision, or give directions;
-Confirm, set aside or vary the decision in question;
-Exercise any of the powers which could have been exercised by NEMA;
-Make orders for costs; and
-Order that status quo be maintained pending determination of the appeal.
In the course of its proceedings, the Tribunal may;
-Compel attendance of any person;
-Order for discovery or production of documents;
-Order investigation of any contravention of EMCA as it deems necessary or expedient;
-On its own motion, summon or hear any person as a witness;
-Take evidence on oath and administer oaths; and
-Visit the sites which are subject of dispute.

Rules of the procedure 
Section 126 of the EMCA provides the proceedings of the tribunal. The proceedings include;
-The Tribunal is not bound by the rules of evidence as set out in Evidence Act.
-The Tribunal shall, upon an appeal made to it in writing by any party or a referral made to it by the Authority on any matter relating to this Act, inquire into the matter and make an award, give directions, make orders or make decisions thereon, and every award, direction, order or decision made shall be notified by the Tribunal to the parties concerned, the Authority or any relevant committee thereof, as the case may be.
-The Tribunal shall sit at such times and in such places as it may appoint.
-The proceedings of the Tribunal shall be open to the public save where the Tribunal, for good cause, otherwise directs.
-Except as expressly provided in this Act or any regulations made thereunder, the Tribunal shall regulate its proceedings as it deems fit.
-The prescribed rules of procedure are in Legal Notice No. 191 of 21st November 2003 which is The Environmental and Co-ordination Act, 2003 (No. 8 of 1999).
Appeal from the Tribunal
Section 129 of the EMCA provides for Appeals to the Tribunal. It states that “Any person who is aggrieved by:—
(a) A refusal to grant a licence or to the transfer of his licence under this Act or regulations made thereunder;
(b) The imposition of any condition, limitation or restriction on his licence under this Act or regulations made thereunder;
 (c) The revocation, suspension or variation of his licence under this Act or regulations made thereunder;
(d) The amount of money which he is required to pay as a fee under this Act or regulations made thereunder;
(e) The imposition against him of an environmental restoration order or environmental improvement order by the Authority under this Act or regulations made thereunder;
May within sixty days after the occurrence of the event against which he is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.  Unless otherwise expressly provided in the EMCA, where it empowers the Director-General, the Authority or Committees of the Authority to make decisions, such decisions may be subject to an appeal to the Tribunal in accordance with such procedures as may be established by the Tribunal for that purpose.  Upon any appeal, the Tribunal may;
(a) Confirm set aside or vary the order or decision in question;
(b) Exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the appeal is brought; or
(c) Make such other order, including an order for costs, as it may deem just. Furthermore, upon any appeal to the Tribunal under this section, the status quo of any matter or activity, which is the subject of the appeal, shall be maintained until the appeal is determined.
Parties have a right to appeal to the High Court and such appeals must be lodged within 30 days after the Tribunal’s award, order or decision. The decision of the High Court on any appeal under Section 130 of the EMCA shall be final.
Independence of the Tribunal
The Tribunal is a quasi-judicial body which makes its own decisions in accordance with the law and free from any interference. It also operates independently of all other institutions established under EMCA including NEMA and its committees and NEC. It makes its own decisions without reference to any other party. It also has the power to determine its own procedure. Administratively, the Tribunal falls under the Ministry responsible for the environment which is currently the Ministry of Environment, Water and Natural Resource. The Cabinet Secretary of this Ministry is Hon. Prof. Judi Wakhungu and she is assisted by the Principal Secretaries Mr. Richard Lesiyampe (In charge of Environment) and Mr. James Teko Lopoyetum (In charge of Water)

Advantage of National Environment Tribunal
The process of courts of law is elaborate, slow and costly. The Tribunal on the other hand disposes of disputes expeditiously and at a relatively low cost. It provides for use of assessors and experts in hearing of disputes.

Rulings
The Tribunal received the first appeal on 17th February, 2005 and a total of six (58) appeals have been filed so far.
Affiliates to NET
The following are branch organizations closely related to the NET.

NETFUND
National Environment Trust Fund (NETFUND) is a government organization established under the Environment Management and Co-ordination Act (EMCA 1999) by the Ministry of Environment and Natural Resources. EMCA’s objectives were to coordinate lead agencies and streamline 77 scattered pieces of environmental leg­islations in order to establish a coherent institutional framework for environmental management in the country. In this respect, EMCA section 24 established the National Environment Trust Fund (NETFUND) to mobilize, manage and avail resources for various aspects of environmental management.
NETFUND is a fund through which the government, multilaterals, bilateral, corporate bodies, individuals and other organizations can fund environmental, natural resources and climate change activities in Kenya.
It is administered by a Board of Trustees, ap­pointed by the Cabinet Secretary Ministry of Environment, Water and Natural Resources. The BoT is the main decision-making organ charged with, among other things, policy formulation, provision of advisory services, control of NETFUND funds and assets and undertaking other activities in line with the mandates, mission and vision of NETFUND. The trustees are selected on basis of dem­onstrated integrity, dedication and competence in a variety of fields as outlined in EMCA. There is a Board of Trustees consisting of professionals both from the private and public sector.

NEMA
The National Environment Management Authority (NEMA) is established under the Environmental Management and Co-ordination Act as the principal instrument of Government for the implementation of all policies relating to environment. EMCA 1999 was enacted against a backdrop of 78 sectoral laws dealing with various components of the environment, the deteriorating state of Kenya's environment, as well as increasing social and economic inequalities, the combined effect of which negatively impacted on the environment. The supreme objective underlying the enactment of EMCA 1999 was to bring harmony in the management of the country's environment.

PPARB
The Public Procurement Administrative Review Board (PPARB) as stated in Section 25 of the Public Procurement and Disposal Act (PPDA), 2005 is a continuation of the Public Procurement Complaints, Review and Appeals Board which was established under the Exchequer and Audit (Public Procurement) Regulations, 2001.  It was established to promote and uphold fairness in the Public Procurement System through judicious and impartial adjudication of matters arising from disputed procurement proceedings.
The Board is autonomous and is made up of six members nominated by various bodies as prescribed in Regulation 68 (1) (a). The bodies are;
(i) Kenya Association of Manufacturers;
(ii) Law Society of Kenya;
(iii) The Architectural Association of Kenya;
(iv) The Institution of Engineers of Kenya;
(v) The Institute of Certified Public Accountants of Kenya;
(vi) The Kenya Institute of Supplies Management;
(vii) The Institute of Certified Public Secretaries of Kenya;
(viii) The Chartered Institute of Arbitrators;
(ix) The Kenya National Chamber of Commerce and Industry;
(x) The Kenya Institute of Management;
(xi) The Computer Society of Kenya;
(xii) The Pharmaceutical Society of Kenya;
(xiii) The Federation of Kenya Employers;
(xiv) The Central Organization of Trade Unions three other members appointed by the Minister; a Chairman appointed by the Minister from among the persons appointed under paragraph (a).
Sections 93 100 of the PPDA read together with Regulations 67 88 of the Public Procurement and Disposals Regulations, 2006 are the provisions that govern the Review Board.
As part of the Government reform agenda, the need to strengthen and streamline the procurement process was given prominence. This therefore, led to the enactment of The Public Procurement and Disposal Act, 2005 and Public Procurement Regulations 2006, which was operationalized on 1st January, 2007
Administrative services are offered to the Board by the Public Procurement Oversight Authority which acts as its secretariat. The business of the Review Board is transacted between 8.00 am and 5.00 pm on normal working days unless otherwise agreed to by the secretary .
The Public Procurement System in Kenya has evolved from a crude system with no regulations to an orderly legally regulated procurement system. The Government’s Procurement system was originally contained in the Supplies Manual of 1978, which was supplemented by circulars that were issued from time to time by the Treasury. The Director of Government Supply Services was responsible for ensuring the proper observance of the provisions of the Manual. The Manual created various tender boards for adjudication of tenders and their awards.
A review of the country’s public procurement systems was undertaken in 1999 and established that:
i) There was no uniform procurement system for the public sector as a whole
ii) It did not have sanctions or penalties against persons who breached the regulations in the Supplies Manual, other than internal disciplinary action. Consequently application of the rules was not strict and many of the norms were not followed
iii) The Supplies Manual did not cover procurement of works
iv) The dispute settlement mechanisms relating to the award procedures as set out in the Manual were weak and unreliable for ensuring fairness and transparency
v) Records of procurement transactions in many cases were found to be inaccurate or incomplete or absent, which led to suspicions of dishonest dealings at the tender boards.

In view of the above shortcomings it was found necessary to have a law to govern the procurement system in the public sector and to establish the necessary institutions to ensure that all procurement entities observe the provisions of the law for the purpose of attaining the objectives of an open tender system in the sector. Consequently the establishment of the Exchequer and Audit (Public Procurement) Regulations 2001 which created the Public Procurement Directorate (PPD) and the Public Procurement Complaints, Review and Appeals Board(PPCRAB).
The PPD and PPCRAB, though largely independent in carrying out their activities, had been operating as departments in the Ministry of Finance on which they relied for staff, facilities and funding. Since these institutional arrangements have a potential for undermining the impartiality of these bodies in the long run it was found necessary to create an oversight body whose existence was based on a law. The Public Procurement and Disposal Act, 2005 was thus enacted and it became operational on 1st January, 2007 with the gazettement of the Public Procurement and Disposal Regulations, 2006.
The Public Procurement and Disposal Act, 2005 created the Public Procurement Oversight Authority (PPOA), the Public Procurement Advisory Board (PPAB) and the continuance of the Public Procurement Complaints, Review and Appeals Board as the Public Procurement Administrative Review Board (PPARB). The PPAB and PPARB are autonomous bodies .
Mandate of on its overall functioning
  3. Initiating public procurement policy
 4. Assisting in the implementation and operation of the public procurement system by:
-preparing and distributing PPOA
The PPOA is mandated with the responsibility of:
  1. Ensuring that procurement procedures established under the Act are complied with;
  2. Monitoring the procurement system and reporting manuals and standard tender documents,
-providing advice and assistance to procuring entities, and
-develop, promote and support training and professional development of staff involved in procurement.


BIBLIOGRAPHY
1. Environmental Management and Coordination Act, Act No. 8 of 1999
2. Public Procurement and Disposal Act (PPDA), 2005
3. Exchequer and Audit (Public Procurement) Regulations, 2001
4. National Environment Tribunal Website, < http://net.or.ke/ >
5. National Environment Trust Fund Website, < http://www.netfund.go.ke/ >
6. National Environment Management Authority Website, < http://www.nema.go.ke/ >
7. Public Procurement Oversight Authority Website, < http://www.ppoa.go.ke >

Commission Of Human Rights And Good Governance

By Llb May 2013 intake students.

History
The commission started as the Permanent Commission of Enquiry in 1965under the Tanzanian Constitution Chapter 5 Section 67-69 and in a Statute as an independent commission. The Permanent Commission of Enquiry was the first office of the Ombudsman in Africa and second in the Commonwealth countries. The Permanent Commission of enquiry was started with the aim of listening and providing solutions to problems the public had which related to the abuse of their rights and misuse of power by state officials. Also at that time, the National Assembly was dependent on the ruling party therefore there was no way the people’s rights would be well catered for because of the biasness. The PCE achievements included aggressive outreach efforts in rural areas to create awareness about its work, satisfactory resolution of public complaints and the rate of abuse of power decreased drastically. In 2000, the PCE became the Commission of Human Rights And Good Governance (herein referred to as CHRAGG) following a constitutional amendment. Further legislative changes broadened the mandate of CHRAGG to provide it with the mandate of human rights and maladministration. It is governed by the Good governance Act
Reasons for the Commission
1. Provided an opportunity for protection of the people’s rights when abused by the public officers
2. Establish fairness in the making of decisions by the administration bodies
3. Need to have a different justice system from the normal court system
4. Need to preserve traditional values to guarantee the individual rights

CHRAGG is an independent commission and is incorporated in the 1997 constitution of Tanzania under article 129(1) . The functions of the Commission have been stated under article 131 of the constitution and article 6(1) of the Good Governance Act of Tanzania. The functions are:
a) To protect human rights as stipulated by the laws in Tanzania
b) To receive complaints on the violation of human rights
c) Investigate cases of human rights violations and derogation from principles of good governance
d) Research on issues of human rights and good governance and educate the public on them
e) Investigates on complaints of the acts done by government officials. (Protective and investigatory mandate). Also looks at cases of maladministration by officials and abuse of office
f) Advice the government and other governmental and non-governmental organizations on human rights(advisory mandate)
g) To co-operate with the representatives of the United Nations, Africa Union and International Monetary Fund and other organizations which cater for protection of human rights and good governance
h) To grow and ensure continuity and harmony between various people and organizations brought before the commission
CHRAGG is among the six (6) commissions which advocate for protection of human rights keeping in mind the functions that have been given to it by the Constitution of Tanzania. This commission has been divided into 3 sections:
• Employment and discipline
• Abuse of power
• Retirement benefits
BACKGROUND OF THE COMMISSION
This office was established in 2001 by article 129-131 of the 1977 Constitution of the United Republic of Tanzania and the CHRAGG Act (Cap 391) of 2007. This office plays both the role of the Ombudsman and that of the human rights commission. The legislation allowed the commission to work both in the mainland and Zanzibar. However it was not possible for the commission to take charge in Zanzibar until a parliamentary enactment was put into place and in May 2006, Union government authorities and Zanzibar officials agreed that they would be permitted to take charge in Zanzibar. This commission promotes awareness of human rights and investigates violations. Since its creation it has been actively performing the functions given to it by the Constitution of Tanzania. The commission is led by a judge and composed of nine other commissioners of who are not necessarily lawyers. It has over the years employed: lawyers, economists, political scientists and sociologists. The commission, in 2007, had employed more than 160 employees and operated with a budget of approximately $2.4 million (3.1 billion shillings), an increase from its 2005 budget of approximately $2.1 million (2.7 billion shillings) both from national budgets and donors . It however remained underfunded, understaffed and overburdened putting into consideration that there was a rise in the number of unresolved cases that they had in their hands. These commissioners can arrest and persecute people but they prefer to use less harsh consequences like arbitration and out of court conflict resolution. By mid-2006, the commission had received 14,487 complaints from organizations and individuals, and made recommendations to the government regarding 8,627. It however categorized 1.8% of the complaints as human rights violation related and the rest maladministration by the government. It resolved cases involving abuse of power, violence against women and promotion of women's involvement. In 2006 it wrote a report on the poor conditions of prisons and even recommended ways by which the government would improve these conditions.  As the year drew to a close the commission was in the process of introducing a computerized case management system to improve the process.
The public however has different perceptions on the independence of the commission. Part of the public is of the opinion that the commission operated independently while others say that the commission is in no position to claim that it has worked independently due to factors as enlisted below;
i. The commission is barred from investigating the President
ii. The president has the power to direct the commission to discontinue investigations and he must give a reason for ordering a discontinuity on the investigations.
iii. the commission has not yet developed its capacity to serve the whole country.
There is a need to ensure closer coordination between the commission's operations and other related organs, such as the Good Governance Coordination Unit in the President's office, the Prevention of Corruption Bureau, the police, and civil society. In 2006 the Global Integrity Index scored the commission a score of weak on its operations. It however indicated that there had been too few cases to establish whether the government acts on the findings of the agency. In 2005, the Chairman of the Commission Justice Kisang noted that the lack of institutional cooperation and good faith by the government impeded investigations as public servants either delayed in answering the Commission's letters of inquiry or refused out right to do so.
CONSTITUTIONAL PROVISIONS
Article 129: Establishment
(1)   There shall be a Commission to be known as the Commission for Human Rights and Good Governance.
(2)   The Commission shall consist of the following Commissioners –
(a) the Chairman
(b) the Vice Chairman
(c) other Commissioners not exceeding five
(d) Assistant Commissioners
Article 129: Appointments
3)   All Commissioners and the Assistant Commissioners shall be appointed by the President after consultation with the Nomination Committee.  
 (4)   There shall be a Nomination Committee which shall consist of the following members -
(a) The Chief Justice of the Court of Appeal;
(b) The Speaker of the National Assembly;
(c) The Chief Justice of Zanzibar;
(d) The Speaker of the House of Representatives; and
(e) The Deputy Attorney General, who shall be Secretary of this Committee
3)   All Commissioners and the Assistant Commissioners shall be appointed by the President after consultation with the Nomination Committee.  
 (4)There shall be a Nomination Committee which shall consist of the following members -
(a) The Chief Justice of the Court of Appeal;
(b) The Speaker of the National Assembly;
(c) The Chief Justice of Zanzibar;
(d) The Speaker of the House of Representatives; and
(e) The Deputy Attorney General, who shall be Secretary of this Committee
Article 129: Tenure
(5)  A Chairman, Vice Chairman and all other Commissioners, shall each hold office for a period of three years and may be re-appointed for another only one term of three years.
(6) Any person who is appointed as Commissioner of the Commission shall immediately abandon any office held by him in any political party or any other office
Article 129:Removal from office
7)   A Commissioner or Assistant Commissioner may only be removed from office for reasons of;
• failure to discharge his duties
• illness or any other reason,
• misconduct
(8)  The Commission may discharge its duties notwithstanding that there is vacant office among the seats of Commissioners or that one of the members is absent.
Article 129- Independence
(2)  The Commission shall be an autonomous department, in exercising its powers; shall not be bound to comply with directive or orders of any person or any department of government, or any opinion of any political party or of any public or private sector institution
(3)  The provisions of sub-article (2) shall not be construed as restricting the President from giving directive or orders to the Commission, nor are they conferring a right to the Commission of not complying with directions or orders from the President, if public interest so requires
Article 129- Scope of Authority
(4)   The Commission shall conduct inquiry in accordance with the provisions of this Article and of any law enacted in that behalf by the Parliament, and shall inquire into the conduct of any person concerned or of any institution concerned whenever the President directs to conduct inquiry; likewise, except as the President directs the Commission not to conduct investigation the Commission may conduct investigation whenever it deems necessary to inquire into the conduct of any person concerned, or any institution concerned who is suspected or which is suspected to have abused the authority of his office, misused the authority of his office or the functions of such institution or for violation of human rights and principles of good governance.
Article 129- Limit to Scope
(5) The Commission shall not have powers to inquire into decision of any Judge, Magistrate or of the Court if such decision was made in the course of exercise of the powers of his office; likewise, the Commission shall not have a power to inquire into any decision made by any or Tribunal established in accordance with a law if that decision was made in the discharge of its functions.
(6)    The provisions of this Article shall apply to persons employed in the service of the
• Government of the United Republic
• Revolutionary Government of Zanzibar,
• Employees and leaders of the political parties,
• Members and employees of all Commissions of the Government of the United Republic and the Revolutionary Government of Zanzibar
• Parastatal organizations and
• other public or private organs, companies, community, associations, trustees or any other schemes;
• but these provisions shall not apply to the President or Leader of the Revolutionary Government of Zanzibar
Article 130-Functions
(1)   Commission for Human Rights and Good Governance shall discharge the following functions –
(a) To sensitize countrywide-Public awareness
(b) To  receive complaints
(c) To conduct inquiry
(d) To conduct research
(e) To institute proceedings in court
(f) inquire into the conduct of any person concerned and any institution concerned in relation to the ordinary performance of his duties or functions or abuse of the authority of his office;
Article 131- Powers of the Commission and Procedures of discharging its duty
(1) The Parliament may enact a law for purposes of prescribing provisions in respect of authority of the Commission, procedures for conducting its business and legal immunities for Commissioners and employees of the Commission which shall enable them to discharge their duties without legal constraints.
(2)  The Commission shall not inquire the following matters;
(a) any matter which is before a Court or any Tribunal;
(b) any matter concerning relationship or cooperation between the Government and a foreign Government of any country or international organization;
(c) any matter concerning powers of the President to award remission;
(d) any other matter that is mentioned in any law.
Article 131- Reporting
(3) In any financial year, the Commission shall prepare and submit to the Minister responsible for human rights a report in respect of -
(a) activities of the Commission in the preceding year;
(b) implementation of preservation of human rights in the United Republic,
and, the Minister shall table before the National Assembly each report submitted to him as soon as practicable after receipt.
(4)   The provisions of sub-article (3) shall not be construed as restricting the Commission from submitting any other report to any person or any other authority
AN ACT TO PRESCRIBE THE PROCEDURES AND PRIVILEGES OF THE PERMANENT COMMISSION OF ENQUIRY
Interpretetion
Section 2 of the act outlines the interpretation of the certain terms in the act such as "appropriate authority"—in relation to a Ministry or independent department of the Government, means the Principal Secretary responsible, in accordance with the regulations of the Civil Service, for such Ministry or department, and includes the Chief Justice, the Speaker and the Controller and Auditor-General; Also "the Commission" means the Permanent Commission of Enquiry established by section 67 of the Constitution
Appointment of a member of the Commission
If one is appointed as a member of the commission, under section 4(1) he/she must vacate the following:
(a) the office of Speaker of the National Assembly
 (b) the office of judge and of a judicial officer;
(c) a Civil Service office;
 (d) the office of a member of the Electoral Commission;
 (e) the office of a member of a local government authority and any office in the service of a local government authority;
 (f) the office of a member of a scheduled organization and any office in the service of a scheduled organization
Public Department and Officers
5. Subject to the provisions of the Constitution and this Act, the provisions of any law relating to public departments shall apply to the Commission, and the office of Commissioner and any office under the Commission shall be public offices in the service of the United Republic.
Oaths
Section 7 of the act outlines what is required for those holding the office in terms of oaths
(1) Every Commissioner shall, before entering upon the duties of his office, take and subscribe the oath of allegiance and the oath for the due administration of his office set out in the Second Schedule to this Act, which oaths shall be administered by the President.
(2) Every person appointed to an office under the Commission shall, before entering upon the duties of his office, take and subscribe the oath of secrecy set out in the Second Schedule to this Act, which oath shall be administered (by a Commissioner

Powers and Procedures
Section 9 of the act states as follows
(1) Subject to the provisions of this section, the Commission shall, before entering upon any enquiry
(a) record the nature and scope of the enquiry it proposes to make; enquiry
(b) inform the appropriate authority of its intention to make the enquiry and furnish him with a copy of such record.
(2) If, in the course of any enquiry, the Commission considers that the nature or scope of the enquiry should be enlarged, the Commission shall cause a further record to be made to that effect and shall furnish the appropriate authority with a copy thereof.
(3) Where the Commission makes an enquiry, or the nature or scope of an enquiry is enlarged, on the direction of the President, such direction—
(a) if in writing, shall constitute such record aforesaid;
(b) if not in writing, shall be recorded by the Commission, and if, in any such case, the President is the appropriate authority it shall not be necessary to inform him of the Commission's intention to make the enquiry or to furnish him with a copy of such record
Conduct of Enquiries
Section 10 states
 (1) Every enquiry shall be conducted in private.
(2) The Commission may hear or obtain information from such persons, and may carry out Such investigations, as it thinks fit…..
However- it may not be required to conduct a hearing if Provided that if at any time during the course of the enquiry it appears to the Commission that there may be sufficient grounds for its making any report or recommendation that may adversely affect any person or any department or scheduled organization
Procuring Information and the Attendance of Witnesses
Section 11 states (1) Subject to the provisions of this Act, the Commission may require any person who, in its opinion, is able to give any information relating to any matter relevant to an enquiry to furnish it with any such information and to produce any documents, papers or things which may be in the possession or under the control of that person and may, by order under the hand of a Commissioner, require any such person to attend before the Commission at a time and place specified in such order and to be examined on oath or to produce any such document, paper or thing.
(4) If a person to whom an order under this section is directed does not attend at the time and place mentioned therein, the Com- mission may, upon being satisfied that the order was duly served or that the person to whom the order is directed willfully avoids service, issue a warrant under the hand of a Commissioner to apprehend such person and to bring him before the Commission at a time and place specified in the warrant
Privileges of the Commission
Section 19- No enquiry, proceeding or process of the Commission shall be Proceedings held bad for any error or irregularity of form, and, except  ground of lack of jurisdiction, no enquiry, proceeding, process or report of the Commission shall be liable to be challenged, reviewed, quashed or called in question in any court.
Sub-section (2) Anything said, any information supplied, or any document, paper or thing produced by any person in the course of an enquiry shall be privileged in the same manner as if the enquiry were a proceeding in court, and a report of the Commission shall be privileged in the same manner as if it were the record and judgment of a proceeding in court


CHALLENGES AND POSSIBLE SOLUTIONS TO THE CHALLENGES
CHALLENGES
1. The commission in Tanzania does not give the solutions to the people’s problems faster especially the urgent ones thus no help is offered to the aggrieved
2. Lack of funds leading to unfinished work therefore slowed response to the aggrieved
3. Poor communication whereby a person does not communicate to the commission once they have had solutions given to their problems. This leads to piling of old files in the commission for a long time as the cases have been left pending.
4. Complainants end up changing their addresses and places of work without informing the commission therefore the solutions to the complaints cannot be communicated to them
5. They don’t have machines for example computers and even printers. They have only had 1 printer and they recently got a photocopy machine
6. Poor environmental conditions in Acacia and Twiga where some of their offices are located. Lack of water, garbage lying around, most of the time there is no electricity are some of the problems the Commission goes through
SOLUTIONS
1. Educating the community on commission of human rights and good governance through public conferences from Dar es Saalam to other parts of the country and through the media
2.  The office should maintain continuous dialogue with government officials and balance between winning their confidence and that of the public for effectiveness of their recommendations
3. Priority in terms of allocation of funds should be determined by places where there are low standards of living in that they should be allocated more funds for example in Msoma so that the people can get to report all their problems at a cheap or no rate at all

Identification Parades in Kenya , Kenyan Criminal Procedure

By Ms Lichuma

What are ID Parades?

·         Blacks Law Dictionary defines ID parades as a police identification procedure in which a criminal suspect and other physically similar person are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. ·         ID parades are held to enable eye witnesses to identify suspects whom they allegedly saw. Failure to hold such parades weakens the evidential values and all that remains will be dock identification which is weak.

Dock Identification v. Identification parades

·         Dock identification involves a witnesses pointing out the accused standing at the dock, and identifies him as the culprit who committed the crime. ·         The courts generally avoid convictions based on dock identification because such evidence without corroboration is of lesser value. This was enunciated in Gabriel Njoroge v. Republic where the court held that the dock identification of a suspect is generally worthless unless other evidence is adduces to corroborate it.

Conduct of ID Parades

Force Standing orders (chapter 46)

·         This provides that, whenever necessary that a witness be asked to identify an accused/suspected person, the following procedures must be followed. ·         This requirement was justified following R v. Mwango & Maina- Here an ID Parade was conducted in hospital where the suspect was admitted and which the ID parade consisted of only 3 men. The complainant picked out the accused who was tried and convicted. The convication was quashed as this flouted two major police force standing orders: o   The accused should have been placed among eight people of similar height, age and general appearance; and o   The witness should have been asked to pick out the person he believes committed the offence.

Prior to ID parade

·         Witness should provide a description of the accused before taking part in a parade. In cases relying solely on the evidence of identification, it is imperative that the description of the offender made by the victim during the first report to the police is recorded and latter produced in evidence. o   Ntelejo Lokwam v. Republic- ID parade was held three years after the said robbery. Held that in the absence of a description being given to the police when the first report was made after the robbery had taken place, it would be impossible for an independent tribunal to arrive at a determination that the complainants had in fact made a positive identification of the appellant in an ID parade.

Procedures under the Force Standing Orders

The accused/ suspected person should always be informed of the reason for the parade and that he may have a solicitor or friend present when the parade is being conducted. ·         This requirement gives an accused a protective feeling. Though the parade helps to identify a suspect, it offers the accused a certain level of security by its very nature and conduct. ·         The presence of a lawyer or a friend in an identification parade helps to assure the accused that his rights are well taken care of. In the case of David Mwita Wanja & 2 Others vs. Republic, the first appellant contended that his rights were violated as he was not allowed to have a friend present then. However, the court held that Mwita’s parade was conducted properly. It was an omission on his part to provide an address of a friend he wished to call or a name that led him not having a friend present.

The police officer in charge of the case, although he may be present, should not conduct the parade. ·         This underscores the need of fairness in the conduct of the parade. The presence of a police officer in charge of the case would be prejudicial to the accused.

The witness or witnesses should not see the accused before the parade ·         If witnesses are allowed to see the accused before the parade, it will be prejudicial to the accused and would greatly undermine the evidential value of the parade. The police should take steps to ensure that this does not happen. ·         In the case of Livingstone Mwangi v Republic the court held that the identification parade was not worthy of any evidential value since the identifying witness had already been shown the suspect who was already arrested. ·         In Omar v. Republic the court clearly upheld the rule that the witness or witnesses should not see the accused before the parade. It stated as follows: ‘Though the parade had been properly conducted, the appellants success in proving that he had been seen by the witness prior to the parade meant that the parade was useless.’

The accused /suspected persons should be placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as himself. Should the accused/suspected person be suffering from disfigurement, steps should taken to ensure that it is not especially apparent. ·         In Njihia v. Republic the court held that the identification parade conducted in this case was not proper because it was contrary to the ratio of one suspect to eight persons, which is stipulated in the Police Force Standing Orders. In this case three suspects had been lined with eleven others. The court observed that this was mathematically too low a ratio to exclude the chance of random guesswork. ·         In the case of David Mwita Wanja & 2 Others v. Republic-In this case two parades were conducted. The eight persons who took part in the second parade however, were the same persons were in the earlier parade except the positions they stood. It was submitted by the counsel for the appellants that the evidential value of the identification parades were rendered meaningless since the witness could readily tell by elimination that the two appellant were the only new faces in the parade. It was held by the court that this was extremely prejudicial to the appellant

The accused/ suspected person will be allowed to take any position he choses and will be allowed to change his position after each identifying witness has left. ·         This ensures that the suspect does not feel noticeable and that his protection is guaranteed. The intention of such movement is in no way intended to confuse the witness but to help achieve a positive identification of the culprit.

Care must be exercised to ensure that the witnesses do not communicate with each other ·         This provision ensures that the suspect is protected from bias in that he/she is not identified on the basis of information received from another witness which in most cases might be so subjective

Every unauthorized person must be excluded ·         This also ensures that the accused feels safe and protected from any form of bias or prejudice. Unauthorized persons might psychologically interfere with the suspect/accused.

If the witness desires to see the accused/suspected person to walk, hear him speak, or for example see him with his hat on or off, this should be done, but in this event the whole parade should be asked to do likewise. ·         The requirement that this should apply to the whole parade ensures that suspect does not have undue advantage over the others. In the South African case of ‘Two hats Parade’ the accused was the only one in the parade who had worn a scarf. The woman identifying him asked the police officer conducting the parade to move and turn sideways and even asked him to produce a noise. It was held that this was not proper as the others were not asked to do the same.

Police should ensure that the witness actually touches the person he identifies ·         This is meant to ensure that the identifying witness is certain of the person identified. It is also meant to avoid any form of confusion that might arise between the persons conducting the parade and the identifying witness. For instance, a witness might identify a suspect but the police might understand or record it differently. But when a witness touches the suspect, he/she leaves no doubt as to whom exactly he/she identified.

At the termination of the parade, or during the parade, the officer conducting it should ask the accused/ suspected person if he is satisfied that the parade is being/has been conducted in a fair manner and notes his reply. ·         The accused/suspected person in this case is given a chance to comment on the fairness of the identification parade. This rule has the effect of making the accused/suspect part of the process with the ultimate goal of conducting the parade fairly. He may at this point raise any objection on how the parade is being conducted. If he does raise an objection, the court will exercise its discretion in determining the validity of such objection.

When explaining the procedure to a witness the officer conducting the parade will tell him that he will see a group of people which may or may not contain the person responsible. The witness should not be told ‘to pick out’ somebody or be influenced in any way whatsoever. ·         The case of Oluoch v Republic illustrates this point. In this case, one of the identifying witnesses was, according to his evidence, told ‘to identify the people who robed me on August 10th 1982.’ It was held that the witness could reasonably take that to mean that persons who robbed him were at the parade. Consequently, the evidence was considerably of lesser value

A careful note must be made after each witness leaves the parade, to record whether he identified the accused/suspected person and in what circumstances. ·         This is done for the purpose of keeping proper records and it will also help to determine whether the witness identified the accused positively or not. The circumstances under which the accused was identified will help in comparing the description of the accused by the witness and the identified person in the parade. This record will also go a long way in assisting the court to exercise its discretion with regard to the circumstances surrounding the identification parade.

A record should be made by the officer conducting the parade of any comment made by the accused/ suspected person during the parade, particularly comments when the accused/ suspected person is identified. ·         This is also meant to assist the court in exercising its discretion in determining whether or not to admit the evidence. It is not easy to imagine statements that might suggest that the accused is guilty. This is therefore factual and each statement should be analysed on its own merits.

The parade must be conducted with scrupulous fairness, otherwise the value of the identification as evidence will be lessened or nullified ·         This point is well captured in the case of R v. Mwango

Note that parades should be conducted with as much privacy as possible. They should not, unless unavoidable, be held in view of the public but in a closed compound or yard from which spectators and unauthorized persons have been excluded

Anonymity of witnesses

The Force Standing Orders also provide that if a witness desires to keep his identity secret, and the circumstances are such that the officer in charge of the case deems such a course advisable for reasons of security, victimization, etc, arrangements will be made for the witness to view the parade from a concealed vantage point (e.g through a window, from behind a screen). If the witness identifies one or more of the persons on the parade, the persons so identified will be removed from the parade and brought before and confronted with the witness, who will be asked to confirm the identification in the normal way, i.e by touching the person

Whenever the prosecution is to adduce evidence based on the conduct of an identification parade, then the magistrate must ensure that it was done in compliance with these instructions.