Kenya: An unprecedented state of violence

PRESENTATION TO THE 45th ORDINARY SESSION OF ACHPR, BANJUL (14 MAY 2009)

THE HUMAN RIGHTS AND HUMAN RIGHTS DEFENDERS’ SITUATION IN KENYA

Following the bungled presidential elections in Kenya in 2007, Kenya faced an unprecedented state of violence and unrest that has continued albeit subtly. In spite of the political settlement that was reached with skilful midwifery by his excellency Kofi Annan, the former secretary general of the United Nations, Kenya’s human rights record has continued to deteriorate. It is important to note that the Kofi Annan obtained his mandate from the African Union.

The Annan negotiations concluded inter alia that the problems that Kenya faced emanated from longstanding impunity alongside systemic human rights violations by the state and politicians. As a result, the mediation agreement known as the National Accord recommended several actions, including the establishment of two key commissions of inquiry – one to inquire into the bungled presidential elections and the other to investigate the post election violence. The commission investigating the elections recommended, inter alia, the disbandment of the Electoral Commission and establishment of a lean professional one with professional staff.

The one investigating the post election violence recommended among other things the following:
1) The establishment of a special tribunal for Kenya to investigate and prosecute those named in the report suspected for bearing the greatest responsibility.
2) In event that the tribunal is either not set up or if set up is frustrated or cannot effectively discharge its mandate, then the list be handed to the ICC (International Criminal Court).
3) Specific radical reforms of the security sector.
4) Immediate prosecution of those people, including police officers, suspected to have perpetrated gender based sexual violence.

To date, no prosecution under 4) above has been undertaken despite the documentation of vital evidence recorded by the commission mentioned above.
The general population has continued to suffer the indignity of human rights violations by being denied the right to associate and assemble freely. Peaceful demonstrations – even over the state of insecurity – have been criminalised.

Extra-judicial killings are commonplace without any or successful investigations by the state. Human rights defenders have been forced to seek refuge both within and outside of Kenya. Indeed currently there are about nineteen human rights defenders (HRDs) that are under protection. The Kenya police has not taken steps to protect the HRDs, neither has it investigated the sources of their credible risks.

In February 2009, two well-known HRDs were assassinated while a university student was killed in the cause of agitation and concern over the killings. To date no one has been arrested nor charged over these gross killings.

The Commission of inquiry into post elections violence (CIPEV) report shows that about one thousand three hundred and thirty-three people were killed during the crisis. Of these about one third are recorded to have been killed by the police. Civil society organisations reckon that more people were actually killed and thousands more affected.

In addition, there were about six hundred thousand internally displaced persons (IDPs) who had to seek refuge in camps provided by the Red Cross. Some have been resettled but as of now we do have more than one hundred thousand still languishing in squalid conditions without resettlement. The government seems to have surrendered in its duty to provide protection and lifeline services to them.

Following the inquiry into the post election violence in Kenya, the Commission of inquiry into post elections violence (CIPEV) made various recommendations for reforms in a series of public institutions including the police force. These recommendations, especially the security sector reforms, have not been implemented credibly in the spirit of the report.

Kenya has ratified the African Charter on Human and People’s Rights. Your commission has reaffirmed that state parties have an obligation, among other things, to provide, protect, and promote the human rights of all persons including human rights defenders.

Your commission ought to take steps regarding Kenya more urgently now because the politicians and political leaders in the country have resorted to engaging themselves in positioning towards the political transition expected with the 2012 general elections rather than engage in reforms that would move the country forward in regard to human rights and development. In addition, the government recently enacted retrogressive media control laws while refusing to repeal the Official Secrets Act which promotes impunity.

We emphasise urgency because, without preparation for violence, 1333 people lost their lives. Imagine the carnage in the election if nothing corrective is made.

We respectfully address the commission hoping that you will adopt a resolution in order to do the following:

a) Directly address the Government of Kenya on its obligations to protect and promote the rights of all people and particularly the duty to hold violators to account through criminal prosecution.
b) To send a fact-finding mission to Kenya which should include special rapporteurs for the following:
- Human rights
- Human rights defenders
- Women
- Freedom of information
- Refugees
who should report to your commission in the next ordinary session.
c) To address and inform the AU summit on the factual situation and risks in Kenya.

We thank you.

Kenya Human Rights Commission
on behalf of Kenyans for Peace with Truth and Justice

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