This paper sets out four key priorities for Kenya’s new
administration and offers recommendations for achieving progress in each
area.
I. Uphold Key Rights for Civil Society
Kenya is a state party to United Nations and African regional human
rights treaties, and its constitution provides for the freedom of
assembly, association, expression, and the media. The new government
should enforce these rights and freedoms by promptly and impartially
investigating recent incidents of intimidation, ensuring civil society
has full freedom to operate, and affirming media freedoms.
Impartially Investigate Death Threats and Other Intimidation against Activists
Kenyan authorities appear to have responded selectively to incidents of
intimidation of those using the media following the March 4 elections.
Police investigated and arrested three activists and bloggers critical
of the way the Independent Electoral and Boundaries Commission (IEBC)
conducted the just concluded election. Police have accused them of
perpetrating hate speech. However, there have been no efforts to
investigate threatening messages in social and traditional media against
civil society figures and activists perceived as critics of the new
administration or those calling for accountability for the 2007-2008
election violence. For example, two journalists and four human rights
defenders in Eldoret received death threats in late 2012 and early 2013
that appeared linked to the ICC’s investigations. Kenyan authorities
should impartially investigate all such threats and prosecute those
responsible.
Ensure Space for Civil Society
The new government should also ensure continued space for civil society
to operate. During the elections candidates made statements critical of
civil society, and the manifesto of the now-ruling Jubilee Alliance
calls for barring organizations from engaging in “political campaigning”
without defining what represents political campaigning. A recent law
passed just before the election, the Public Benefits Organization Act
2013, has imposed new registration requirements on nongovernmental
organizations.
Protect Media Freedoms
Attacks, intimidation, and threats against investigative journalists or
media establishments and editors critical of certain public officials
undermine the freedom the media in Kenya has enjoyed in recent years.
Authorities should immediately investigate and hold to account those
responsible for all forms of attacks on journalists. In January and
February 2013 alone, 19 journalists received threats and 1 journalist
was found dead under mysterious circumstances.
Bernard Wesonga, a journalist with
The Star, an independent
daily newspaper, was found dead in his home in Mombasa on March 30,
2013. He had complained to several of his colleagues about threats he
had received through texts to his phone in relation to a story on the
importation of the expired fertilizer that he was investigating.
In addition, Kenya Television Network (KTN) journalists told Human
Rights Watch about threats received after KTN aired on April 7, 2013, an
investigative report suggesting that former Kenyan vice president and
minister for internal security, Prof. George Saitoti, who died in June
2012, might have been one of a growing number of victims of violence by
members of a drug cartel. KTN is a privately-owned television station.
Kenyan authorities should also make clear that restrictions will not
be placed on media freedoms, including for foreign journalists.
Government officials made a number of threatening statements toward
foreign media prior to the elections. In February, the government
spokesman, Mr. Muthui Kariuki, allegedly warned foreign journalists that
“we will burn you before you burn us,” and just after the March 4, 2013
elections officials of the Ministry of Information and Public
Communication threatened to deport foreign journalists.
II. Ensure Accountability for Serious Crimes
Kenya faces enormous challenges in providing accountability for serious
crimes. Despite efforts by both governmental and nongovernmental
agencies to document violations, there have been worrying gaps,
particularly in the following areas.
Killings and Forced Disappearances in Mt. Elgon
Authorities should set up an independent commission of inquiry into
crimes committed in Mt. Elgon with the view to holding those responsible
to account, including through criminal investigations and prosecutions.
As documented in an October 2011 Human Rights Watch report, “
‘Hold Your Heart’: Waiting for Justice in Kenya’s Mt. Elgon Region,”
some 325 people were forcibly disappeared, 1,000 killed, and thousands
tortured, raped, and forcibly displaced by the Sabaot Land Defense
Forces (SLDF), a militia group, and the Kenyan military in 2008.
On November 3, 2011, Human Rights Watch and Western Kenya Human
Rights, a Kenyan nongovernmental organization, accompanied some of the
victims to Chesikaki police station in Western Kenya, where they filed
complaints with police, asking for investigations into the
disappearances and killings. There has been no further action by the
Kenyan authorities to date. In the absence of credible national
investigations, the ICC prosecutor should examine whether crimes falling
within the ICC’s jurisdiction were committed in Mt. Elgon and consider
opening additional investigations in Kenya.
Perpetrators of Post-Election Violence
Kenyan government should urgently investigate and prosecute cases
related to the 2007-2008 post-election violence, which resulted in the
killing of at least 1,100 people and displacement of 650,000 others. The
report of the Commission of Inquiry into Post-Election Violence
(CIPEV), known as the Waki Commission, identified a list of those it
considered most responsible for the violence in what was described by
the Kenyan media as “a secret envelope.”
The ICC prosecutor initially brought cases against six individuals;
three—including Kenyatta and Ruto—now face trial. Kenyan media have
suggested that the secret envelope could have contained as many as 26
names of high ranking individuals, including some members of parliament.
Names in this envelope handed to Kofi Annan have never been made
public.
Human Rights Watch is aware of only 7 convictions involving 16
individuals in cases related to serious crimes committed during the
election-related violence; a conviction against two individuals in one
case has now been vacated. In 2012 the Director of Public Prosecutions
(DPP) announced that his office would review at least 5,000 cases with
the view to prosecuting them ahead of the 2013 elections, but a
committee appointed to review the cases said in August 2012 that it was
finding it difficult to obtain evidence and the cases have not
proceeded. The committee’s work has not been made public.
As Human Rights Watch documented in a report on accountability for post-election violence, “
‘Turning Pebbles’: Evading Accountability for Post-Election Violence in Kenya,”
weaknesses in Kenya’s criminal justice system contributed to a paltry
rate of convictions for serious election-related crimes. These included
police officers’ unwillingness to investigate and prosecute their
colleagues; the poor quality of investigations in general; incompetence
on the part of some police prosecutors; political influence and
corruption to subvert the judicial process; and the absence at the time
of an operative witness protection system.
The government should ensure full cooperation with the ICC in its
investigations and pending cases (see below). The government should also
establish special mechanisms to investigate, prosecute, and adjudicate
other cases involving the most serious election-related crimes, using
the International Crimes Act and other Kenyan laws, while ensuring that,
where possible, cases of lesser crimes or against lower-level
perpetrators are effectively handled by the ordinary courts. A unit
within a special investigative team should be specifically empowered to
investigate police crimes during the post-election violence in 2007-2008
given the scope of police impunity in Kenya.
Human Rights Watch has previously called on the ICC prosecutor to
continue investigations into police shootings and other abuses committed
during the election violence and to bring additional charges if the
evidence indicates that these abuses amount to crimes within the ICC’s
jurisdiction.
In November 2012 the chief justice announced plans to establish an
International Crimes Division in the Kenyan high court. The Kenyan
government should ensure broad public consultation on the establishment
of the International Crimes Division.
Extrajudicial Killings
The new Kenyan government should investigate extrajudicial killings by
police and prosecute those responsible, and remove them from the police
force. It should vet police officers for involvement in extrajudicial
killings and other abuses.
Kenya has had an extraordinarily high number of cases of
extrajudicial killings by police in the last decade. In November 2007
the state-funded Kenya National Commission on Human Rights (KNCHR)
released its report “Cry of Blood: Report on Extra Judicial Killings and
Disappearances” in which it found that a hit squad within the Kenya
police was responsible for the killing of up to 500 young people and
disappearance of many others in 2007.
In August 2008, KNCHR reported that extrajudicial killings by police
continued. Two NGOs, Oscar Foundation, an NGO that provided legal aid to
victims of human rights violations, and Independent Medico Legal Unit
(IMLU), have also documented a high number of cases of extrajudicial
killings in the last five years.
In 2009 the UN Special Rapporteur on extrajudicial, summary or
arbitrary executions, Philip Alston, also found that “death squads”
operating at the behest of senior police officers, including the police
commissioner, were responsible for extrajudicial killings in Kenya.
Prof. Alston also recommended independent investigations into
extrajudicial killings by police and death squads in Nairobi and Central
Kenya.
To date, there have been no meaningful attempts by the Kenyan
authorities to create mechanisms for independent investigations that
would lead to the prosecution of those responsible for extrajudicial
killings.
Abuses against Ethnic Somalis
The new government should ensure accountability for abuses by the
Kenyan security forces, including police, against ethnic Somalis, both
Kenyans and refugees, particularly in northern Kenya.
The October 2011 Kenyan military intervention in Somalia has prompted
retaliatory grenade and gun attacks by suspected supporters of
al-Shabaab, the militant Somali Islamist group. Many of the attacks have
targeted Kenyan government installations or individual police and
military officers. The Kenyan security forces have often responded with
excessive force, beating, raping, arbitrarily detaining, and killing
civilians in northern Kenya. Human Rights Watch has in 2012 documented
these reprisals in a report titled “
Criminal Reprisals: Kenyan Police and Military Abuses against Ethnic Somalis.”
The Kenyan military’s initial response to the findings of this report
was encouraging. A military board was established to investigate the
abuses and the military promised to hold those responsible to account.
Members of this board visited and talked to Human Rights Watch as part
of preliminary investigations in mid-2012. But there has been little
progress since June 2012 when a military official informed Human Rights
Watch that the chairman of the board, who was a senior military
official, had been transferred out of Nairobi, thus putting its work on
hold. Human Rights Watch calls on the new administration to revisit the
matter of police reprisals against ethnic Somalis and ensure that those
responsible are held to account.
Human Rights Watch also documented serious abuses, primarily by the
paramilitary wing of the police, the Kenyan General Service Unit (GSU),
against Somali and Ethiopian refugees and asylum seekers, as well as
ethnic Somali Kenyans, in the Eastleigh neighborhood of Nairobi in late
2012 and early 2013, including beating, rape, and widespread extortion.
The wave of abuses started on November 19, a day after the first of six
terrorist attacks hit the area and continued until late January. They
coincided with a government announcement ordering urban refuges to
relocate to refugee camps outside Nairobi. The Kenyan government should
ensure police put an end to these crimes immediately, and hold abusive
police accountable.
III. Pursue Reforms to Address Long-Standing Grievances
Since the 2007 elections the Kenyan government has embarked on a set of
essential institutional and legal reforms, largely in response to the
recommendations of at least two commissions of inquiry formed after the
2007-2008 post-election violence. Progress implementing them has been
slow and insufficient, however. The new government should accelerate
reforms in the security sector, particularly police reforms, the land
sector, and public administration, especially as the 2010 constitution
creates a framework and timelines for institutional and legislative
reforms, and contains a strong bill of rights.
There has been progress in judicial reforms, but police reforms have
been slow and partial, and at times have failed to respond to the key
human rights concerns. Police officers have not been investigated and
prosecuted for alleged abuses in the 2007-2008 post-election violence.
Some have been promoted or simply given additional responsibility
despite pending allegations. Although the National Police Service
Commission Act of 2011 provides for the vetting of all police officers
to identify those who have been implicated in past human rights abuses,
the vetting exercise has not even commenced.
The fifth Schedule of the Constitution also recommends relevant
legislation for dealing with land grievances. Injustices around land,
such as land grabbing and dispossession, have fuelled ethnic and
elections-related violence since 1992 and are still the root causes of
tension in various parts of the country. Like police reforms, land
reforms have been slow and acrimonious. The National Land Commission, a
body mandated under the 2010 constitution to deal with historical land
injustices, has yet to embark on its core mandate following more than a
year of delay in setting it up. The key ruling of the African Commission
on Human and Peoples’ Rights in The Endorois Community v Kenya—which
ordered the government to restore the Endorois people to their historic
land and compensate them—has not been implemented.
The new administration should prioritize land reforms and ensure that
the relevant agencies are provided with adequate financial and other
support, including that the key concept of community land under the 2010
constitution is recognized in practice. According to article 63 (IV) of
the constitution, community land cannot be disposed of except as
provided for under an act of parliament, which law is yet to be enacted.
The administration should implement the Endorois ruling without further
delay. It should also ensure that institutions mandated to undertake
vetting of police get the necessary backing to start the work and that
those found responsible for past human rights violations are prosecuted.
IV. Cooperate with the International Criminal Court
The new government should ensure full cooperation with the ICC. Three
Kenyans—including Kenyatta and Ruto—face trial before the ICC on charges
of crimes against humanity related to the post-election violence of
2007-2008. The ICC prosecutor stepped in following the failure of the
national authorities to set up a local mechanism to try those
responsible for the violence. Kenya is a state party to the Rome
Statute, which it signed in 2005. The country has on numerous occasions
promised to cooperate with the ICC, in line with its obligations under
the Rome Statute and as implemented in national law through the
International Crimes Act.
Kenya has challenged the ICC in and out of court. In 2011 Kenya filed
an admissibility challenge to the ICC’s jurisdiction. The judges
rejected the challenge—a decision confirmed on appeal—finding no
evidence that the government was actually investigating any of the six
people then-named in the two cases.
Kenya has lobbied the UN Security Council to have the cases deferred,
and supported the expansion of the mandate of the East African Court of
Justice to include crimes against humanity, a move motivated at least
in part to create an alternative forum for the ICC’s cases.
The Kenyan government signed a memorandum of understanding with the
court in 2010 and has facilitated some court activities in Kenya. But
the ICC prosecutor has indicated that Kenya has stalled or failed to
assist its evidence collection, including access to government records.
Limited assistance by the government in the ICC investigations was one
factor cited by the prosecutor in withdrawing charges against Kenyatta’s
former co-accused Francis Muthaura. The government is now seeking to
challenge the prosecutor’s claims of its limited assistance in court
before the ICC judges. The ICC prosecutor has not asked the ICC judges
for a formal finding of non-cooperation.
The three accused persons in the Kenyan cases have so far attended
court hearings voluntarily and have promised to continue doing so.
Public statements by Kenyan government officials even since the new
administration took office, however, have cast doubt on its commitment
to the ICC. At his inauguration on April 9, Kenyatta modified his
earlier pledge to uphold international obligations by stating that these
obligations would only be honored where based on “mutual respect and
reciprocity,” without further explanation. On April 11, Kenya’s deputy
ambassador to the United Nations, Ms. Koki Muli, appeared to press for
the cases to be handled nationally.
The new government should signal unequivocal support for the ICC and
take steps to strengthen Kenya’s cooperation with the court. These steps
should include ensuring free movement within the country for ICC staff,
defense counsel, and victims’ legal representatives and expeditious and
meaningful responses to requests for assistance from the ICC or its
prosecutor. In light of what the ICC prosecutor has termed
“unprecedented” witness interference in the Kenya cases, the government
should also state publicly that every witness has a right to testify and
that it will investigate reports of witness interference. Kenya’s
authorities should prosecute threats, harassment, and bribery amounting
to violations of national law, evidence permitting. The ICC treaty
requires Kenya to extend its criminal laws to offenses against the ICC’s
administration of justice when committed in Kenya or one of its
nationals. This includes corruptly influencing a witness, obstructing or
interfering with the attendance or testimony of a witness, and
retaliating against a witness for giving testimony.
Conclusion and Recommendations
Kenya’s new leadership has both opportunity and obligation to address
serious human rights challenges that, left unaddressed, continue to fuel
violence and human rights abuses. The government should prioritize
progress in four key areas:
Uphold Key Rights for Civil Society
- Impartially investigate intimidation and hate speech;
- Preserve space for civil society activity; and
- Protect media freedoms.
Ensure Accountability for Serious Crimes
- Establish an independent commission of inquiry into crimes committed in Mt. Elgon in 2008;
- Establish special mechanisms to investigate, prosecute and adjudicate the most serious election-related crimes;
- Conduct independent investigations into extrajudicial killings by police and death squads in Nairobi and Central Kenya; and
- Stop crimes by police including rape, beatings, and extortion against
refugees, asylum seekers, and ethnic Somalis; investigate and hold
accountable abusive police officials.
Pursue Essential Reforms
- Accelerate land reforms by ensuring relevant agencies have adequate
financial and other support; enact the pending community land law as
required under 2010 constitution; and implement the Endorois ruling; and
- Ensure financial and other support for institutions mandated to
undertake vetting of police and other relevant agencies for police
reforms; prosecute any police found responsible for past human rights
violations.
Cooperate with the International Criminal Court (ICC)
- Strengthen cooperation with the ICC including by ensuring free
movement of ICC staff, defense counsel, and victims’ legal
representatives;
- Respond expeditiously and meaningfully to requests for assistance from the ICC or the ICC prosecutor; and
- Publicly affirm the right of every witness to testify and commit to
investigating and prosecuting witness interference including threats,
harassment, and bribery where they amount to violations of national law.
Quotes from
Kenya's Human rights priorities for the new administration 
