Committee on the Elimination of Racial Discrimination considers report of Kenya

Committee on the Elimination
of Racial Discrimination

16 August 2011

The Committee on the Elimination of Racial Discrimination has concluded its consideration of the initial to fourth periodic reports of Kenya on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.

The report of Kenya was presented by Mutula Kilonzo, Minister for Justice, National Cohesion and Constitutional Affairs. Mr. Kilonzo said that since 2003 Kenya had made significant strides toward promoting and respecting human rights, though not without challenges. The biggest gains had been the endorsement of a new Constitution on 4 August 2010. Certain forms of inequalities constituted discrimination, especially when they touched on the ability of marginalized and vulnerable groups’ right to participate in making decisions that affected their well-being. Among the priority areas of the government were projects geared toward national healing and reconciliation, as well as rapid economic reconstruction to reverse the damage and setbacks that the country suffered following the post-election violence in 2008. The Minister of Justice underscored that Kenya continued to face many challenges in alleviating poverty which was a major contributor to the inequalities Kenya was determined to address.

In preliminary concluding observations, Chris Maina Peter, the Committee Expert who served as the country Rapporteur for the report of Kenya, said the commitment of the delegation to the proceedings showed it valued the work of the Committee. Answers had been detailed, thorough and honest. The 2010 Constitution required special consideration as it was the roadmap for the nation and needed to be respected and applied on schedule.

During the interactive dialogue, Committee Experts raised a number of questions and asked for further information on subjects related to, among others, the legislative process ensuing after the adoption of the 2010 Constitution, slums, internally displaced people and refugees, the acquisition of citizenship by minorities, land rights, legal aid, the creation of an Ombudsman, the cases before the International Criminal Court and the adoption of legislation regarding hate crimes.

The delegation of Kenya included representatives from the Ministry of Justice, National Cohesion and Constitutional Affairs, the Permanent Mission of Kenya to the United Nations Offices at Geneva, the National Council of Persons with Disabilities, the Ministry of Foreign Affairs, the Ministry of Immigration and Registration of Persons, the National Cohesion and Integration Commission, the Attorney General’s Office, and the Ministry of Gender, Children and Social Development.

The Committee will present its written observations and recommendations on the initial through fourth periodic reports of Kenya, which were presented in one document, at the end of its session, which concludes on 2 September.

The next public meeting of the Committee will be at 3 p.m. today when it will begin consideration of the fourth and fifth periodic reports of Georgia (CERD/C/GEO/4-5).

Report of Kenya

The initial to fourth reports of Kenya, submitted as one document (CERD/C/KEN/1-4), say Kenya is a multi-racial, multi-ethnic, multi-cultural and multi-religious society. Due to their racial origin, colour, wealth and lifestyles, minorities may be targets of xenophobic behaviour. Religion is increasingly perceived by some minorities in Kenya as a major factor in the determination of citizenship and the acquisition of citizenship entitlements. There is a recent trend in which cultural identity has been politicized, thus creating serious inter-ethnic conflicts in many parts of the country. Such conflicts have been fuelled, inter alia, by historical differentiations arising from the divide-and-rule tactics pursued by the country’s former colonial authorities. Since independence the political establishment has constantly proclaimed negative ethnicity or tribalism as a threat to national unity. There is consensus that Kenyans ought to celebrate diversity, and the fact of different ethnic backgrounds should not be suppressed in national activities like the census.

The Government has taken legislative and administrative measures to curb discrimination. Section 82 of the Kenyan Constitution in section 82 prohibits discriminatory treatment either by law or in practice. The Convention on the Elimination of All Forms of Discriminations against Women and the International Convention on the Elimination of All Forms of Racial Discrimination have substantially been domesticated through different legislations. Public authorities and institutions are expressly prohibited from treating any person in a discriminatory manner. The Kenya National Commission on Human Rights has been at the forefront in addressing subtle cases of discrimination reported to it through its human rights complaints unit. Kenya enacted the Refugees Act of 2006, which prohibits discrimination against any refugee and/or asylum-seeker. The Constitution, however, recognizes cases where there is disparate treatment which should not be construed to be discrimination as envisaged under section 82. The courts have been reluctant to make findings on discrimination where the State is able to prove that some disparate treatment is necessary for the sake of law and order, but recognized the need to differentiate and hence classify Somalis of Kenyan origin as against those of other neighbouring regions. Various commissions have been established to look into the issues of ethnic based clashes/conflicts in Kenya including the Akiwumi Commission of 1998 and the Ndung’u Commission of 2003.

Special and concrete measures have been taken in the social, economic, cultural and other fields to ensure the adequate development and protection of certain racial groups or individuals belonging to them. The National Cohesion and Integration Act of 2008 provides that all public entities must seek representation of diversity in the employment of their staff that shall not comprise more than a third from one tribe. It is illegal for an employer to discriminate on ethnic grounds in offering terms of employment, in dismissing staff or in providing services or benefits. The Persons with Disabilities Act also forbids discrimination by employers and other people based on any ethnic, communal, cultural or religious custom or practice. The land question in Kenya remains one of the most emotive issues and usually flares up ethnic animosities. To address these problems, the Government embarked on the formulation of a National Land Policy through a widely consultative process. This policy will, among other things, seek to deal with historical land injustices, inequitable distribution of land and non-recognition of community-based land interests. The Marriage Bill 2009 is expected to deal with discrimination in property ownership within all marriages.

Presentation of the Report

MUTULA KILONZO, Minister for Justice, National Cohesion and Constitutional Affairs, affirmed the importance Kenya attached to every individual’s dignity and the right not to be discriminated against. Kenya’s national values and principles of governance, as stipulated in the Constitution, included human dignity, equity, social justice, inclusiveness, equality non-discrimination, human rights and protection of the marginalized. Since 2003, Kenya had made significant strides toward promoting and respecting human rights, though not without challenges. The biggest gains had been the endorsement of a new Constitution on 4 August 2010. The Kenyan Constitution addressed Kenya’s governance challenges, fundamentally renewed Kenyans’ faith in the rule of law and established value-driven national institutions. Its full implementation would be a major factor in achieving Kenya’s Vision 2030 and the promises founded on human dignity, equality and freedom for all.

Inequality in Kenya manifested itself in different forms. Certain forms of inequalities constituted discrimination, especially when they touched on the ability of marginalized and vulnerable groups’ right to participate in making decisions that affected their well-being. This was exacerbated by the inequality between men and women. Inequality was officially acknowledged in Kenya and its redress had been at the heart of the Economic Recovery Strategy 2003 to 2007. Also, the Kenya Vision 2030 was a long-term plan to guide Kenya’s development agenda up to 2030. Among the priority areas of the government were projects geared toward national healing and reconciliation, as well as rapid economic reconstruction to reverse the damage and setbacks that the country suffered following the post-election violence in 2008. The prominence given to measures to promote equity was expected to contribute to the reconciliation process and the overall national economic growth.

Negative ethnicity or tribalism had been the greatest threat to Kenya’s national unity. Cultural identity had been politicized, thus creating serious inter-ethnic conflicts in many parts of the country. Such conflicts had been fueled by historical differentiation arising from the divide-and-rule tactics pursued by the country’s formers colonial authorities. This had persisted in the post-colonial era. However, a new public debate about diversity in Kenya had begun. The debate emphasized that suppressing diversity and marginalizing minorities and other vulnerable members of the society was a sure recipe for conflict. This reality informed the rights guaranteed and obligations imposed on the State by the 2010 Constitution of Kenya. Important legislation in Kenya guaranteed equality before the law and equal protection under the law, and prohibited anti-discrimination. The Minister of Justice underscored that Kenya continued to face many challenges in alleviating poverty which was a major contributor to the inequalities Kenya was determined to address. Poverty alleviation efforts were more successful when accompanied not only by growth policies but also by distributional policies that reduced inequality.

Questions Raised by the Rapporteur and Experts

CHRIS MAINA PETER, the Committee Expert serving as country Rapporteur for Kenya, said Kenya adopted the Convention in September 2001 but had not formally recognized the Committee to receive individual complaints under Article 14 of the Convention. One serious problem was that the report was prepared before adoption of the 2010 Constitution. Mr. Peter asked whether Kenya was a dualist or monist State. Given the slow pace of the legislative process, the Committee needed assurance that parliament would be able to pass the necessary laws for implementing the Convention on the Elimination of Racial Discrimination under the new constitution. Legislation related to hate crime and discrimination was rather narrow and the Committee wanted to know whether there were any plans to reform the penal code and other laws to broaden the basis for condemning hate speech beyond ethnicity and race to religion, nationality, gender, sexual orientation and other aspects. Because of the congested conditions and political instigations, slum-dwellers found themselves fighting each other along ethnic lines. The Committee inquired about the State Party’s strategy for addressing the condition of slums. Serious causalities resulted from the post-2007 election violence. Four years after the violence, internally displaced people were still in camps. Currently, the situation of the Dadaab refugee camp was catastrophic and the Committee should appeal to the international community to address the issue of refugees there.

The Committee required further information on the State’s position on minorities and indigenous groups, who were fully recognized in the new Constitution. Regarding equality before the law, the acquisition of Kenyan national identity was an issue. The report of the State Party addressed the question of discrimination against certain categories of persons on the issue of the acquisition of citizenship for minority groups, such as Nubians, Somalis and Coastal Arabs. The system had been the subject of litigation at the local and regional levels and Mr. Peter said the State Party could take the opportunity to correct the situation. The Committee asked for an update on the impact of affirmative measures in the context of the new Constitution. Land was the most important commodity in the world. However, there was the question of whether the State Party had approved a land policy and how far it had addressed ethnic tensions related to land. The Committee also asked to know if a National Legal Aid Scheme had been put in place to reach the poor and marginalised sections, and if possible, whether the use of paralegals had been considered.

Mr. Peter also inquired about the outcomes of activities of the Truth, Justice and Reconciliation Commission, including information on reparation for victims, amnesty and recommendations for prosecution for race-related acts. Was the Government likely to extend the mandate of the Commission? The question of strengthening the protection of witnesses was important to the State party due to the pending trials in The Hague. Regarding the International Criminal Court’s prosecution of the perpetrators of the 2007 post-election violence, people of substance and very senior figures in the country were concerned. Thus, where did the Government of Kenya stand on the Hague process? The Committee appreciated the efforts, including activities carried out by the Ministry of Justice, National Cohesion and Constitutional Affairs, in continuing to foster understanding and combat prejudices and stereotyping through education. Mr. Peter asked what activities were envisaged by the National Human Rights and Equity Commission. It was important to ensure that the new Commission was given space to operate freely. Its decisions should be respected and its financial security and independence should be ensured.

Committee Members asked about the recognition of citizenship of minority groups, particularly with respect to the Nubian people. Any kind of discrimination whereby children could not acquire citizenship was striking for the Committee, particularly since these children were already home. Were there many people who did not have national identity cards? Citizenship was a right, not a privilege. Committee Members asked about the 2006 census. Regarding the many people practicing Hinduism in Kenya, more information about the legal system applied to them, as well as the uniformity of the legal system in general, was requested by the Committee. The report said the issues of marriage and other personal rights depended on cultural and ethnic origins, whether Indian, African, British or another background. However, Committee Experts asked whether current legislation had changed that approach. Regarding the proceedings at the International Criminal Court, Committee Members asked for more information about the reasons a case was before the court. One Committee Member believed the matter should be addressed in the very capable Kenyan courts. It was a question of whether there was sufficient political will to address the crimes. Leaving the cases to languish in the International Criminal Court was an abdication of sovereign right. What was the political situation in this regard?

Non-discrimination laws did not apply to non-citizens, but discrimination against refugees was prohibited. Discrimination against non-citizens only applied to the political rights. The issue of land was not resolved, although programs were in place to address the issue. Kenya should be encouraged by the Committee to take all efforts to address land issues. A Commission had been formed to collect information on the historical and current standing of segregation. Committee members asked for the findings of this Commission. The issue of creating an Ombudsman was raised. Also, would the definition of discrimination adhere to the definition in the Convention on the Elimination of Racial Discrimination? Regarding the issue of citizenship for minorities, Committee Members asked what actions had been taken to remedy the situation. Would the draft bill on hate speech be adopted or was it still being considered? Were courts other than the high court able to hear cases of racism? There was not any information on the number of verdicts, cases and reparations on cases of racism in Kenya, and more information was required in this regard.

One Committee Member asked whether Kenya had taken action to address groups historically marginalized and excluded. How did Kenya intend to assure that 2030 was not only a constructive year for Kenya, but also for the countries in the region? Kenya had the means and the will to become a regional center for human rights and development. Was any legacy of the Kenyatta era found in the 2010 constitution in terms of building national unity? Committee Members asked how positive duties to promote ethnic diversity would be implemented, monitored and measured. Albinos were subject to brutal persecution and killings and had limited access to education and other services. What was being done to fight this? Did the situation in other countries affect Kenyan albinos? Would holding a census disaggregated by tribes help the situation, or would it be better to avoid the question of tribes?

Response by Delegation

Responding to the questions raised by Committee Members, the delegation said that in 2006 the Kenyan National Commission on Human Rights recognized that the periodic reports of Kenya were long overdue to the Committee on the Elimination of Racial Discrimination. It had partnered with the Ministry of Justice to engage with the Secretariat and convene a capacity-building workshop for state officials to prepare Kenya’s periodic reports. Since acceding to the Convention in 2001, the country had not adopted comprehensive policy and legislation for the purpose of implementing Kenya’s obligations under the Convention. Article 27 of the Constitution guaranteed the right to equality and freedom from discrimination. National Commission on Human Rights had made numerous recommendations on how Kenya could better combat discrimination, including by passing legislation with substantive and holistic provisions of equality and non-discrimination covering inclusively all grounds. The national identity card was the crucial link to citizenship and nationality and was at the core of enabling the enjoyment of fundamentals rights and freedoms. The State should harmonize the Constitution and laws that governed citizenship and nationality and repeal discriminatory provisions. All Kenyans should have access to nationality and all documents of registration, whether birth certificates, national identity cards or passports. The State should criminalize hate speech by enacting comprehensive legislation. Regarding the equal enjoyment of political, civil, economic, social and cultural rights, the State should implement the recommendations of the African Commission on Human and Peoples’ Rights concerning the Endorois community. It should also take up the offer to visit provided by the Working Group on the Rights of Indigenous People in Africa which had not currently received a positive response, despite encouragement by the National Commission on Human Rights.

The Government of Kenya should also ensure that there were laws and policies that protected sexual minorities from discrimination, particularly in access to health care facilities. The State should promote tolerance and understanding for sexual minorities and ensure protection against attacks. A policy framework should be put in place for providing appropriate protection for transgender and intersex persons including issues such as gender reassignment. Finally, the Commission recommended that Kenya make a declaration under Article 14 recognizing the Committee’s competence to receive and consider communications from individuals or groups claiming to be victims of rights violations by the State under the Convention. The Commission urged the State to take note of the Committee’s General Recommendation Number XVII, which requires States to establish national human rights institutions compliant with the Paris Principles. The Government of Kenya was in the process of passing legislation that, as drafted, unfortunately would have the effect of fragmenting Kenya’s National Human Rights Institution into three commissions. The Commission asked the Committee to urge the State to not break up Kenya’s national human rights institution.

The delegation went on to say that each political party should respect and promote human rights and fundamental freedoms. Political parties had to be gender balanced; they could not be made up of more than two-thirds of one gender. A pending law required that a certain proportion of funds collected for political parties be used to ensure gender balance in parliament. The 2006 census collected a wide range of disaggregated data, which was important for social planning, prioritizing development needs and the Equalization Fund. Outcomes of the Truth, Justice and Reconciliation Commission would include reparations and rehabilitation for affected parties. The Commission had collected 21,000 statements and had been holding hearings in Northeastern Kenya, where issues related to Somalis were being considered. Regarding the proceedings in The Hague undertaken by the International Criminal Court, Kenya was fully committed to the Rome Statute. Kenya had entered into an agreement with the court to establish offices in Kenya, as well as granted the immunities and free rein necessary for its work. The principle of retroactivity applied to international crimes in Kenya. Kenya could absolutely take up the process, and prosecute these crimes according to articles in the Constitution. However, parliament had rejected the initiation of a domestic process; 61 per cent of the public was in favor of The Hague process.

There was anxiety related to the adoption of legislation to implement the 2010 Constitution. However, not much legislation was outstanding in view of upcoming deadlines. The related elections laws, citizenship law and others laws were before the cabinet, while a number of other laws were in third reading, which indicated they would mostly likely be adopted soon. Regarding an Ombudsman, if a law could not make it through Congress, the Minister would write it into a human rights law. In Kenya, there were no areas reserved for any particular race, although in some areas, such as in big cities, certain groups were clustered due to cultural and historical reasons. Customary law could only be applied if it did not contravene the Bill of Rights, the Constitution or another written law or policy.

Other members of the delegation said that under the new constitution, it was clear that all international treaties signed and ratified were part of Kenyan law. However, creating mechanisms, machinery, or other enabling legislation to implement international treaties was often necessary. There was a provision in the Constitution which required that any act that bound the state of Kenya had to have parliamentary approval. Pending legislation would establish the process for ratification, which was currently before the cabinet. All treaties currently ratified were laws of the state of Kenya and full implementation, including individual complaints mechanisms, would be considered in the coming year. There were many misplaced fears regarding the splitting up of the National Commission on Human Rights. There were already standing human rights, gender and development bodies. No one intended to reduce the powers of the National Commission on Human Rights. Rather, existing bodies that had been united under the commission were to be given constitutional status, providing them with stronger powers. The Government had developed pilot programs to improve access to legal aid for marginalized people, including the deployment of paralegals. A national legal aid scheme, using a range of models, would be rolled out in the next year.

Looking at policy measures regarding the marginalized, such as women, children, the elderly and people with disabilities, as well as Hindus, Muslims and British groups, the Constitution was clear that cultural affiliations had to be respected. Sharia courts would have limited jurisdiction over marriage, divorce and inheritance. A recent Marriage Act had harmonized marriage laws, whereas previously there had been five separate approaches. The legal status of all marriages was recognized under the Marriage Act. Article 10 of the Constitution, legal frameworks, provisions for affirmative action, cash transfer programs, amendments of existing law, and the creation of other legislation were measures Kenya had taken to uplift the status of marginalized groups. Concerning Albinos in Kenya, the influence of neighboring countries was clear. There had recently been a case where an Albino was being transferred to a neighboring country where the selling of Albino body parts was practiced. Since Albinos often suffered from disabilities such as impaired eyesight, the National Council of Persons with Disabilities provided 100 million shillings to support the group. Kenya also provided aid, in terms of scholarships and aid devices, to disabled people throughout the country. Perpetrators of hate crime and incitement to hate crime had been prosecuted, as had those responsible for human trafficking. The Government was committed to providing disaggregated data in its next periodic report to the Committee.

Land issues had been a source of ethnic and other tensions. The Government had adopted legislation to address historical land inequality. It implemented a national land policy and was considering the creation of a national land commission. It was difficult to distinguish between Kenyan citizens and recent immigrants or refugees from Sudan and Somalia. There also had been problems related to terrorists from surrounding areas. Thus, the government put in place a vetting mechanism to assist the government to identify bona fide Kenyans. Registration and citizenship had been identified as rights in the Constitution and the Government could be taken to court for not protecting these rights. Individuals who had resided in Kenya for seven years could be registered. Children under a certain age without parents automatically became Kenyan citizens. The Dadaab refugee camp was the biggest in the world and was a significant humanitarian challenge for Kenya. The Kenyan Government had made efforts to mobilize resources for refugees by appealing to world leaders. Kenya had also appealed for intervention in Somalia because the issue of Somali refugees could only be resolved with peace in Somalia.

Further Questions Posed by Experts

Committee Members said the constitution had made Kenya a monist state. Thus, could private parties evoke the Convention before Kenyan courts? Committee experts asked whether Kenya employed a civil law or common law system. Experts asked for more detail about how providing citizenship for Nubians was being handled. Regarding the amendment to Article 8, the Committee asked for more information and encouraged the delegation to urge the Government to consider it, if it had not done so already. There were two sets of rules for citizenship and one group’s citizenship could be revoked. This seemed to constitute a type of discrimination. The Gender Commission would be integrated with the National Commission on Human Rights; would this dilute the issue of gender? Committee Members asked how the constitutionality of laws was enforced. Were there any laws that conferred legality on what was being done in this respect? Regarding assimilation, in the periodic report, one of the principles invoked was that indigenous people could have dragged Kenya back. Did Kenyans consider this to be true?

Response by Delegation

The Kenyan delegation responded that all treaties adopted could be directly applied in the courts. Procedural issues would require legislation. Under the newly established court system, nothing hindered calling on the Convention in court. A law on citizenship was being considered by parliament, which would deal with citizenship of Nubian, Somalis, as well as women. In the past, Kenyan women could not transfer citizenship directly to their children. Kenya used the common law system; legislation, however, was superior to doctrines of common law. Kenya was the only country to undertake the process of vetting all judges for standing in the new system. This was being done to combat perceptions that the legal system was riddled with corruption and incompetence. Citizenship was a sensitive issue for Kenya and could only be obtained by birth or registration. The latter could be revoked if citizenship was acquired by fraud. However, citizenship by birth was not superior to citizenship by registration. Regarding the issue of gender, there were fears that some of the gains made in terms of gender could be lost if the Gender Commission was integrated into the National Commission on Human Rights. Currently, parliament was considering the provision of constitutional powers to strengthen the Gender Commission. The commissions would not be merged. There was a danger in making the parliament or any one single body responsible for constitutionality; checks on power were fundamental. There were three organs empowered to judge and monitor constitutionality and enforce the constitution. The constitution recognized culture as the foundation of the Kenyan nation and required the State to promote all forms of cultural expression. The Government recognized the role of indigenous science in the development of the country. The State was not allowed, by virtue of its very Constitution, to consider indigenous people as dragging down society.

Preliminary Concluding Observations

In preliminary concluding observations, CHRIS MAINA PETER, the Committee Expert serving as country Rapporteur for Kenya, said the commitment of the delegation to the proceedings showed it valued the work of the Committee. Answers had been detailed, thorough and honest. Respect for the constitution itself needed special consideration. It was the roadmap for the future of Kenya and it needed to be respected and applied on schedule. Mr. Peter was concerned about the high costs of the National Commission on Human Rights. This could create a situation where those who had supported the Constitution decide it is too expensive. Democracy was not cheap, but it should be affordable. Internally displaced people should be given priority. Mr. Peter commended the delegation for a job well done.

MUTULA KILONZO, Minister for Justice, National Cohesion and Constitutional Affairs, said a Salaries and Remuneration Commission had been established to harmonize and consider salaries throughout the government. Mr. Kilonzo could not be frightened by costs because there was a mechanism for considering cost in the constitution.

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