What Is Happening In Court

On 7th August 2018 the 1st Petitioner in this case, WMW, boarded a popular public service vehicle in Nairobi, Kenya. She was carrying a handbag, a notebook and a phone and an envelope with Kenya Shillings (Kes.) 80,000. A short distance from the CBD, she realized that the bus was headed in a different direction than her destination and she asked the conductor to allow her to alight. She gave him Kes 1,000 to deduct her fare but he refused to give her the balance and she refused to alight until she was given her balance. The driver stopped the bus, alighted from the driver’s seat and went to the passenger area where he forcefully removed her from the vehicle. He grabbed her and shoved her out of the bus, hitting her leg against a metal barrier that was at the door. He followed her outside and continued to assault her by slapping and hitting her until she started bleeding. The driver and tout threw out her belongings which they had grabbed from her in the scuffle and sped off. She immediately realized that the envelope with Kes. 80,000 and her gold pendant which she had worn were missing.

WMW was harassed, verbally abused, physically assaulted, robbed and thrown out of a public service vehicle. She reported the matter to various state authorities including the Kenya Police, the Directorate of Criminal Investigations, the Director of Public Prosecutions, the Ministry of Transport, the Ministry of Interior and Coordination of National Government, the National Transport Service Authority among others but no action was taken. Her story was published by various media outlets including the Saturday Nation, a local daily with national circulation, but she received no recourse. Having exhausted all other avenues for a just remedy, WMW, filed this case at the Constitutional and Human Rights Division of the High Court of Kenya alleging violation of women’s mobility rights.

Public transport is a dominant site for the commission of gender-based violence. According to a rapid assessment report on Sexual Harassment in Kenya Public Transport, 87% of commuters in Kenya have either witnessed or experienced gender-based violence in the public transport sector. There have been instances in the public domain of women being subjected to harassment and other forms of violence and humiliation in the public transport spaces. However, the state only adopts ad-hoc reactions and piecemeal reforms in response to public outcry. Many other cases of violence in public transport and associated spaces often go without any action being taken by the authorities.

ISLA sought to establish before the Court that violence against women is a form of discrimination and violates the rights of women to equality. Further, ISLA argued that the State has a due diligence obligation to protect women from all forms of violence and in the unfortunate event of violence, the State must investigate, prosecute and punish perpetrators of violence against women. Where the State fails to exercise this obligation, then it must be held accountable. On 15 January 2025, the High Court delivered a judgment where it held that the 1st Respondent, the operator of the public bus had violated fundamental rights and freedoms of the Petitioner particularly, the right to equality and non-discrimination, the right to dignity, right to freedom and security of the person, which includes the right to be free from violence, freedom from cruel, inhuman or degrading manner, freedom of movement and consumer rights.

In its judgment, the court held the 1st and 2nd Respondents vicariously liable for the indignity and violence meted on the 1st Petitioner and ordered them to compensate the 1st Petitioner Kes 420,000. The court also ordered them to pay for costs. However, the court failed to find any fault on the part of the State as it concluded that there was an effective investigation conducted by the police. The court also refrained from making any orders requiring the State to put in place laws and policies to protect women from violence in public transport and associated spaces since it would amount to breach of the doctrine of separation of powers. Regarding this part of the judgment, ISLA is exploring its options on the best route to take in the best interest of not only the client but the women of Kenya.

Turkana County can be described as a patriarchal and pastoralist community, the area has been marginalised with limited infrastructure and social amenities. Access to land in the area is largely through a customary land tenure system, which sometimes is insecure due to lack of documentation. Women are seldomly involved in decision making on land issues, and are considered to have ‘land use rights’ as opposed to a right to the land. This is due to various factors, chief among them that land is majorly governed by customary laws, managed by male owners and women do not have formal ownership rights.

The extractive industry has resulted in a number of onerous environmental challenges that affect multiple facets on the host communities, some of these contribute negatively to the enjoyment of environment and property rights of the affected communities. Often, extractives cause significant disruption to communal life eroding local ties and social structures. The World Bank, in its Operational Directive on Involuntary Resettlements, recognised that involuntary displacements occasioned by extractive activities generate severe social, economic, and environmental problems for the displaced communities. The adverse impacts of these displacements disproportionately affect women who in most communities constitute the care givers for their families.

The petition before the court has been filed by residents and community members of Turkana County affected by the impacts of exploration and drilling oil in South Turkana Basin by Tullow Oil PLC, a multinational corporation specialized in oil and natural gas exploration. Tullow Oil PLC was licensed by National Environment and Management Authority (NEMA) to conduct exploratory well drilling with the objective of determining the presence of oil and natural gas in Lokichar Basin in Turkana County.

The petitioners assert that actions of the Respondents causing social and environmental damage through hazardous environmental activity and other acts and omissions constituting environmental degradation and activities that adversely affect the environment, threatened the life, health, livelihood, well-being and sustainable development of the residents of Turkana County amounts to violence of development and infringe on their rights to clean and healthy environment, clean and safe water in adequate quantities, right to the highest attainable standard of health, right to life, right to development and security of person.

ISLA and KELIN in an application dated 12 September 2024 sought to be admitted in the case as joint amici curiae. By intervening in the case, ISLA and KELIN seeks to surface a gendered perspective of extractives for the court to understand the impact of resource extraction on a community. This is because women and men have different social roles, rights, and opportunities and are differentially affected by extractives. The amici curiae shall therefore be providing the court with information on the extent of disproportionate impact of extractive industries on women by demonstrating how they increase women’s vulnerability and are discriminatory against women. Accordingly, due to such exposure or vulnerability to security risks, women are unlikely to optimally participate and benefit from the extractive activities. The application for leave to be admitted as joint amici curiae was opposed by the 1st Respondent – Tullow Kenya B.V on three main grounds. Firstly, the Applicants have framed new and additional cause of action that does not arise from the pleadings filed by the Petitioners. Secondly, the applicants were biased in favour of the petitioners and lastly; questioned the Applicants’ expertise on the issues before the court.

On 22 October 2024, the court admitted ISLA and KELIN as joint amici curiae in the case. The court found that they had demonstrated and met the criteria required of a party to being enjoined as amici curiae as set out by the Supreme Court in the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others Sup Ct Petition No 12 of 2013 [2014] eKLR. On the question of framing new and additional cause of action, the court observed that the joint amici curiae were seeking to demonstrate how oil extraction disproportionately impacts women. The court acknowledged this as a novel issue which was intricately intertwined with the issues that the Petitioners had brought before the court.

This case is different than any other case that ISLA has intervened in. This is because the petition before the court challenges provisions of the law that protects women’s property rights to the extent that they protect women from sharing with their spouses any property they acquire during judicial separation. The case challenges the constitutionality of this law that grants women protection without according the same to men. The provisions of Divorce Act at section 15, 16 and 18 provide that any property a woman acquires during judicial separation is not available for sharing with the spouse. The Applicants, who are men, contend that these provisions are discriminatory against the husbands because the law allows women to share in the property the husband acquire during judicial separation. They are therefore seeking the declaration of that law as unconstitutional.

ISLA together with FIDA-U filed an application to be admitted as joint amici curiae in the case before the constitutional court. They sought to bring information to the court that would provide guidance on the historical context of the impugned provision that protect the property of women acquired during separation. The amici curiae brief sought to demonstrate to the court why the law although discriminatory in effect, amounts to a positive discrimination and therefore was not unconstitutional as alleged. The joint amici curiae sought to develop their submissions on the nature and extent of States’ obligation to develop special measures to remedy historical oppression. In addition, the brief sought to bring to the fore the utility of suspension of invalidity as a remedy in constitutional litigation in order to protect those women who had already benefitted from the impugned protection of the law.

The application for intervention as joint amici curiae was opposed by the Respondent on ground that the submissions the joint amici curiae sought to make will not aid or give assistance to the court that parties to the petition would otherwise render. Further that the 2nd amici curiae was partisan and not neutral as the matter before the court is in its core vision and mission.

Unfortunately, in March 2023 ISLA and FIDA-Uganda were not admitted as joint amici curiae. The court directed that it would provide its reasons in the full judgment. At the time, the court indicated that FIDA-U was not an impartial and neutral party in the proceedings as it had an interest in the outcome of the matter for having previously challenged a similar provision of the law in the Divorce Act.

Thereafter, the bench that had been instituted to determine the petition was disbanded and a new bench constituted. The new bench re-opened the hearing of the application on 12 November 2024.

In determining the application for admission as joint amici curiae, on 12 December 2024, the Constitutional Court of Uganda found that the joint amici curiae had satisfied the criteria set out in Rule 5 of the Judicature (Amicus Curiae) Rules 2022 on admission of amici curiae in court proceedings.

The court found both applicants as having considerable expertise in of gender equality. The court acknowledged ISLA’s involvement as amicus curiae before the High Court of Kenya and Supreme Court of Kenya on matters pertaining to gender discrimination and protection of women’s rights.

The court observed that the joint amici curiae brief was grounded in the law and does not amount to fresh evidence or a new cause of action, does not favour either party to the petition and was likely to aid the development of law and jurisprudence in nature and extent of reliefs available in matters of divorce.

The constitutional court therefore concluded that ISLA and FIDA-U had met the criteria for admission as joint amici curiae. The court therefore allowed the application seeking leave to be admitted as joint amici curiae and adopted the joint brief already on record.