Human Rights Committee examines the report of Kenya

Human Rights Committee
18 July 2012

The Human Rights Committee considered yesterday afternoon and this morning the third periodic report of Kenya on its implementation of the provisions of the International Covenant on Civil and Political Rights.

Eugene Wamalwa, Minister for Justice, National Cohesion and Constitutional Affairs of Kenya presented the report and said that the new and progressive Constitution of 2010 contained legislation that would ensure full protection of human rights.  The judiciary and the police were being reformed, concrete steps had been taken to safeguard equality between men and women and legislation on the prevention of torture, humane treatment of detained persons, correctional policy and legal aid had been drafted.  Recent elections had been fraught with ethnic and social tensions which had led to specific laws to regulate the conduct of political parties and national elections.  Terrorism was of great concern to the Government which had responded by initiating a Prevention of Terrorism Bill, guided by the provisions of the Covenant.

In an interactive dialogue the Committee highlighted cases of torture and ill treatment by the police, and asked about sanctions for perpetrators and compensation for victims.  Concerns were raised about extrajudicial killings and also the corruption and criminal behaviour of police officers.  Experts asked about Kenya’s cooperation with the International Criminal Court, how inclusive the new National Refugee Policy was and about measures to address security in internally displaced persons camps, in particular high levels of sexual and gender-based violence.  Other issues raised by the Committee included protection for sexual minorities, the death penalty, freedom of assembly, birth registration and access to treatment for HIV/AIDS.

In his closing remarks, Mr. Wamalwa said that the comments and recommendations of the Committee would be an impetus to the promotion and protection of human rights in Kenya in line with the Covenant.  Kenya was hopeful that the new institutions would enable it to move into a new phase.  However, it still faced many challenges, and in particular the Government called upon the international community to provide assistance in handling the 600,000 refugees in the Dabab camp, an issue that also carried regional security implications.

Zonke Zanele Majodina, Committee Chairperson, in preliminary closing observations, noted many positive developments in Kenya since 2005, in particular the promulgation of the new and progressive Constitution with its Bill of Rights.  The Committee still had a number of concerns which included the post-election violence and its aftermath, discrimination and the need for comprehensive legislation to address it and the need to fight impunity.  Furthermore torture, extrajudicial killings and entrenched cultural practices were inconsistent with the Covenant

The delegation of Kenya included representatives of the Ministry for Justice, National Cohesion and Constitutional Affairs, National Gender and Equality Commission, National Council for Persons with Disabilities, Kenya Law Reform Commission, Office of Dir of Public Prosecutions, the Kenya Police and the Permanent Mission of Kenya to the United Nations Office at Geneva.

The Committee will make its concluding observations and recommendations on the report of Kenya at the close of its session, on Friday, July 27, 2012.

The next public meeting of the Committee will be at 3 p.m. tomorrow, 19th July 2012, when the Committee will discuss its working methods.

Report

The third periodic report of Kenya can be read here: (CCPR/C/KEN/3).

Presentation of the Report

EUGENE WAMALWA, Minister for Justice, National Cohesion and Constitutional Affairs of Kenya, said Kenya had made significant progress in the promotion and protection of human rights and fundamental freedoms, including the new 2010 Constitution, which provided that general rule of international law and international treaties formed part of law in Kenya and made express provision of a list of legislation that should be passed within specific timelines to ensure its full implementation.  The Covenant was being enforced by the courts and there was a growing body of jurisprudence where courts evoked the Covenant and enforced the enjoyment of human rights.  Judicial reform had been a Government priority and today the judiciary had been transformed.  Concrete steps had been taken to safeguard equality between men and women, and non-discrimination and gender had been integrated in the political process.  Police reforms were underway and legislation had been enacted to enhance the efficiency, effectiveness and accountability of the Police Force.  The Constitution stipulated the rights of an arrested person and their right to a fair trial.  A Prevention of Torture Bill had been developed which would prohibit torture and other cruel, inhumane or degrading treatment. 

Other draft legislation under review were bills on the humane treatment of detained persons, a draft Correctional Policy and a national Legal Aid Policy and a Legal Aid Bill, which would provide a comprehensive national framework for the provision of legal aid.  The Persons with Disabilities Act was being progressively implemented.  Elections had been fraught with ethnic and social tensions over the years, which had led to the passing of specific laws, such as the Political Parties Act and the Election Act, which sought to regulate the conduct of political parties and national elections.  The Supreme Court of Kenya had jurisdiction to hear and determine disputes relating to presidential elections, while perpetrators of the post-election violence had been held accountable.  Terrorism was of great concern to the Government and had responded by initiated a Prevention of Terrorism Bill, which would be guided by the provisions of the Covenant.

GEOFFREY GICHIRA KIBARA, Permanent Secretary of the Ministry for Justice, National Cohesion and Constitutional Affairs of Kenya, presented Kenya’s responses to the list of issues.  The Government had taken action to prevent discrimination, for example mainstreaming disability in all areas of its work and developing the National Land Policy and Community Land Bill.  Measures undertaken by the Government to implement gender equality provisions of the Covenant included the Electoral Act which ensured the presence of women representatives in the Parliament and other bodies.  All action taken by the Government to combat terrorism had been in line with the Constitution, which provided for a comprehensive protection for life and property.  To ensure implementation of gender equality requirements of the Covenant the Government undertook measures, including special measures in the economic sphere, such as cash disbursements to women with disabilities, facilitation of access to universities for girls and assistance for girls to return to school after pregnancy.   While the death penalty remained legal in Kenya a moratorium had been in place since 1987.  Every child was required to have birth certificate to register for national examinations, which was expected to motivate parents to register their children.

Questions by Experts

GERALD NEUMAN, Committee Rapporteur for the report of Kenya, asked about direct implementation of the Covenant in courts and whether provisions of the Covenant prevailed over the statutory law.  Many people in remote rural areas had difficulty in accessing the justice system and instead used traditional dispute systems: how did the Government ensure that customary law did not conflict with the Covenant? 

The Rapporteur also asked when the gender equality legislation would be enacted to implement Constitutional provisions.  He queried what was being done to address the low participation of women in workforce and asked about the scope of draft laws which sought to protect women from violence and discrimination, including from harmful traditional practices, and when those laws would be enacted.  What was being done to raise awareness about domestic violence among the population and civil servants?  The Committee was pleased that Kenya’s Human Rights Commission had received A status.  However it had concerns the Commission’s composition and future.  Experts asked, in a state of emergency, which human rights could not be suspended? 

Currently there was a prevalence of torture in Kenya, and a lack of disciplinary action against police officers responsible, a Committee Expert said, asking when the Bill on Prevention of Torture would be enacted.  More radical sanctions were needed for perpetrators of torture and ill treatment in prison facilities; to what degree could they be subjected to criminal proceedings and how could victims be compensated?  Incommunicado detention continued to be practiced.  Many detainees did not have legal counsel and family members were sometimes unable to visit detainees without paying bribes. 

An independent victim protection agency had been created; how many people had used its services and what measures had been taken to protect human rights defenders in touch with the Special Rapporteur on extrajudicial executions a few years ago?  A number of reports noted arbitrary detentions and arrests carried out by the police, and the delegation was asked about measures taken to remedy the situation, reduce corruption in the police force, weed out the practice of officials asking for bribes and the arbitrary detention in the context of security operations in provinces. 

The minimum age for criminal responsibility – which was currently eight years old – was very low.  The Committee looked forward to the enactment of the new legislation which would raise the age of criminal responsibility to 12 years.  An Expert asked for an update on what was being done to extend the juvenile justice system beyond Nairobi and to ensure separation of juveniles from adults in prisons and detention facilities across the country.

The Committee had recommended in its earlier deliberations that Kenya abolished the death penalty but little progress had been made.  A moratorium had been in place for 25 years, but abolition was still far from happening.  What was the substance of the education campaign against the death penalty?  How many inmates were currently on a death row and for what offences had they been convicted?  When could those currently on death row expect to receive a pardon?  Many States had had to go against public opinion when enacting an abolition of the death penalty, the Expert noted.

Concerning the Bill of Rights and Muslim rights, the Committee asked for an explanation of the “personal status” and whether Muslims must use Kadhis courts.  The delegation was also asked about equality between men and women in divorce cases. 

Was Kenya genuinely committed to cooperation with the International Criminal Court and how did it facilitate participation of victims and witnesses in its proceedings?  An Expert noted the charges by the International Criminal Court against four people for crimes against humanity committed during the post-election violence and the hesitation to let the procedures follow their normal course before the Court.  The four persons in questions had not yet been handed over to the International Criminal Court.  What was the status of those cases today and what were the intentions of the Government in that regard? 

People must be protected from violence, and the Committee insisted for a very long time that measures to combat terrorism must be in line with international human rights norms and standards and the provisions of the Covenant.   What were the powers of the Anti-Terrorism Police Unit; did victims of terrorism have access to remedies and what were the conditions of access to remedies for victims of anti-terrorism actions; what was the content of the Prevention of Terrorism Bill, currently under preparation, and how did it ensure respect for internationally accepted human rights standards?

Kenya was very generous in admitting refugees, particularly from Somalia, an Expert commended, adding that the Government had repeatedly expressed its commitment to the principle of non-refoulement.  He asked some detailed questions about how legislation recognized the absolute prohibition of refoulement of refugees to their countries of origin if they faced threats of torture and prosecution, even if the same individuals presented a national security risk to Kenya?  Could the delegation provide assurances that the new National Refugee Policy, currently being drafted, would be as inclusive as possible?  The Committee recommended that the same process be used as for National Internally Displaced Persons Strategy.  What was being done on the ground to address issue of security in internally displaced persons camps, and in particular the high levels of sexual and gender-based violence?  When would the National Internally Displaced Persons Strategy be adopted, as it had been under review by the Cabinet since 2010?

Response by Delegation

By the time the new Constitution came into force many international treaties signed by Kenya had not been domesticated; today courts invoked provisions of the Covenant in a number of instances.  The National Commission on Human Rights had been restructured in line with the new Constitution and had five members; a panel had been set up to select new commissioners upon expiration of the terms of current office holders.  The Anti-Terrorist Police unit did not have more powers than other police units, and its members received specialist and human rights training.  The Prevention of Terrorism Bill would conform to the provisions of the Constitution and affected persons could seek redress through court proceedings. 

The Constitution provided mechanisms to resolve issues of discrimination on the grounds of sex, pregnancy and marital status.  It also provided for special measures to improve the status of women and for political representation of women in the Parliament and other elected bodies.  The Education Support Programme ensured gender equality, supported equal access to school for girl children, addressed specific obstacles to school attendance by girls and supported literacy for girls.  In terms of education, all measures were taken to ensure gender equality and gender parity. 

The Marriage Bill was currently under development and would deal with discrimination against women and polygamy.  The Bill would also seek to deal with cultural practices that impeded women’s access to and control of matrimonial property.  There had been a consultative process which culminated in a draft Health Bill which expanded on reproductive rights.  There were discussions under way on equality and discrimination legislation, but the bill had not been yet prepared.  A number of measures had been undertaken to protect women from discrimination and from customary and cultural practices that impeded their rights to inherit and enjoy matrimonial property.

The Female Genital Mutilation Act criminalized the practice and aimed for its elimination.  The Act also provided for criminal liability for Kenyans who went abroad for the purpose of female genital mutilation.  The practice was deeply rooted in national culture and it would take time to root it out from Kenya.

Many of the issues raised by the Committee orbited around police reform, which was revolutionary and progressive and a constant commitment of the Government.  Extrajudicial killings were prohibited and all cases were investigated; four such cases occurred between 2006 and 2011 in which police officers were found guilty of murder.
Concerning extrajudicial killings, corruption, torture and criminal behaviour of police officers, again the delegation said they were all related to police reform.  There had already been visible dividends of the reform in many areas.  Many of the 3,000 suspects arrested in the Mount Elgon area had been released within 12 hours, although the delegation was unable to provide breakdowns of criminal charges brought against other arrestees.  The 2008 border guard operation aimed to prevent cross border trafficking in illicit arms.  All complaints received in connection with that operation had been investigated.  The investigation into the death of two human rights defenders was ongoing but currently there was insufficient evidence to initiate prosecution. 

The Government did not condone torture and had taken measures to prevent and punish acts of torture reported in police custody or perpetrated by police officers.  Investigations had been carried into reported cases.  Between 2006 and 2011 44 police officers were prosecuted for cases of torture and ill treatment.  Within the same time period 60 police officers were tried in court on corruption charges and for arbitrary arrests for purposes of taking bribes.  With regard to prosecution of perpetrators of the post-election violence, to date 445 cases had been fully investigated and prosecuted, while 22 had been dismissed. 

Kenya was a signatory to the Rome Statute, which was domesticated, and the Government was fully committed to cooperation with the International Criminal Court in all proceedings.  The cases referred to had been now fixed for hearing and Government continued its cooperation with the Court.  Furthermore Kenya was the second country on the African continent to enact the Witness Protection Act.  The state of emergency was governed by the Constitution and the judiciary had a big role to play as a watchdog of the State.  The Supreme Court had the jurisdiction to examine all legislation for its consistency with international obligations of Kenya. 

The Children’s Bill increased the age of criminal responsibility from eight years to 12 years in line with international standards, and it was expected that the Bill would soon be tabled before Parliament.  The country was under-going a comprehensive reform in the area of children’s rights, including the juvenile justice system. 

The Family Protection Bill recognized domestic violence in all its forms: it was unacceptable behaviour.  The Bill provided for a comprehensive list of offensive behaviour and informed about recourse available to victims.  The 2008 Kenya Demographic Survey showed that social and economic status of women had bearing on her experiencing violence; 39 per cent of women reported experiencing violence in the previous year and almost half of married women reported some forms of violence.  The number of men reporting violence was quite low, partly because it was hard for men to admit to being victims, unless the physical violence was very severe.

Kenya had continued the policy on non-execution of persons on death row and the moratorium had been in place since 1987.  Kenya had been unable to remove the death penalty from its Statute mainly because of prevailing strong opposition of citizens.  Awareness-raising campaigns to persuade Kenyans from their popular support for the death penalty took place in cooperation with civil society, religious organizations and the National Human Rights Commission.  Children were not subjected to the death penalty and the two serious offences that carried a death sentence were murder and robbery with violence.  In 2009, some 4,000 cases were commuted from death row to life in imprisonment.  There were 1,582 inmates on the death row today, including 30 women.

The Code of Conduct for Protection of Children in Travel and Tourism Industry looked at issues of sexual exploitation and trafficking of children and had been signed by 60 coastal hotels in Kenya.  Measures to combat trafficking in persons included promulgation of key pieces of legislation, signature of the Code of Conduct by coastal hotels to prevent abuse of children in those hotels, and the establishment of collection of statistical information on abducted and trafficked children. 

The policy on repatriation of refugees was very clear and excluded involuntary repatriation of refugees to countries of their persecution.  Kenya was a state party to the 1951 Refugee Convention and to the African Union Convention Governing the Specific Aspects of Refugee Problems in Africa, which provided wider scope for protection than the 1951 Refugee Convention. 

Several hundred police officers had been deployed in refugee camps in Kakuma and Dadab to ensure the security of refugees and humanitarian workers, while child protection officers appointed by the Government ensured the well-being of children.  Ninety per cent of internally displaced persons from post-election violence had been resettled, but the process was hindered by socio-economic challenges, availability of land and hostility of some host communities.  The new internally displaced persons policy and strategy would provide a comprehensive protection framework in line with Kenya’s international obligations.

Measures to prevent extrajudicial killings included a review of standard operating procedures in all security operations which would ensure that human rights were therein embedded.  The new police training curriculum had been instituted and no police officer could pass the course if they failed in the examination of the Bill of Rights. 

Under the Constitution, the Kadhis courts were limited to determination of Muslim personal law and offered a first form of redress for Muslim women.  They did not deal with criminal matters, only issues such as marriage, divorce and inheritance for persons professing Muslim faith and which submitted themselves to the court.

Questions from Experts

Experts asked to what extent the State guaranteed the appointment of a legal representative for the accused; whether independence of judges could be ensured by their financial independence; and plans were in place to overcome the limitations in access to justice for all Kenyan citizens.  Could the delegation comment on the 2008 arrests of journalists protesting the Communication and Media Bill?  What were the obstacles to citizenship for marginalized communities and what measures had the Government taken in that regard?

Birth registration was raised, and what was being done to ensure that all births and deaths were registered, in addition to making birth certificate mandatory for the national state exam that took place upon children’s entry to kindergarten. 

What protective measures were in place for sexual minorities, an Expert asked, also recommending that same-sex conduct was decriminalized.  Land related concerns from marginalized communities remained undressed and the Government had already been asked to implement the decision by the African Commission on Human and People’s Rights.  The Kenyan Somali communities had been subjected to extraordinary screening by the police as a pre-condition to accessing identification documents.  The Committee recommended that the Government publish the rules and regulations to citizenship and registration of stateless persons.

Response by Delegation

The State had a constitutional responsibility to ensure access to justice for all its citizens, and a Legal Aid Bill was currently being developed, the delegation said.  The Chief Registrar of the judiciary was appointed by the Independent Judicial Service Commission.  Financial independence was a critical component of the judicial independence.  Kenya had set up a Judicial Fund which was directly controlled by the judiciary and had no links with the executive.  The independence of the judiciary was reinforced by the Constitution which stated that judiciary would not be subjected to any control. 

The right to assembly required that demonstrations were carried out peacefully and law enforcement officers had an obligation to ensure the safety of participants.  Between 2008 and today the character of public demonstrations had changed and the police stopped following demonstrators along the way.  The Government had taken measures to educate the police and to negotiate with those who wished to demonstrate in a free and open manner.  Human rights defenders could seek redress in cases in which the police had dispersed demonstrations.

The State had an obligation to protect minorities and traditional communities, whose concerns were dealt with by different Government departments.  The Land Commission had been set up to investigate historical aspects of land property and to propose redress.  A draft national policy and action plan had been developed for the protection of minority human rights.  The Truth, Justice and Reconciliation Commission was due to present its findings soon, accompanied by recommendations on how to address them. 

The Birth Registration Act was currently under review in order to align it with the Constitution and to facilitate proper registration of all births and deaths in the country.  The Government had implemented a number of measures to support communities in registering births.  Those included the establishment of centres in which births could be reported, the existence of Registrar Officers in each district and mobile registration processes in semi-arid areas.  Article 14 of the Constitution gave the right to all Kenyan citizens, men and women alike, to confer citizenship to their child, inside or outside of Kenya.  The registration purpose was not limited and all children born in Kenya were registered since all children had the right to identity and birth certificate.

As a Sub-Saharan country Kenya had been hard hit by the HIV/AIDS epidemic.  The national strategic plan had a budget of over $3 million US dollars, resourced with the help of external donors. Measures had been put in place to ensure generic treatment for people living with HIV/AIDS and Kenya called on other States to come to its aid in that regard, as Kenya suffered from a lack of resources to adequately address the issue. 

Kenyan citizens strongly opposed the legalization of same-sex unions, the delegation said, adding that no efforts had been taken to decriminalize such relationships.  Kenya had no intention of legalizing homosexuality or lesbianism and was not likely to change its position in the near future. 

Concluding remarks

EUGENE WAMALWA, Minister for Justice, National Cohesion and Constitutional Affairs of Kenya, said Kenya highly valued the Committee’s contribution and its recommendations would present an impetus to the promotion and protection of human rights in Kenya in line with the International Covenant on Civil and Political Rights.  Kenya was moving forward, facing upcoming elections, and hopeful that the new institutions would enable it to move into a new phase.  Kenya still faced many challenges, however.  In particular the Government called upon the international community to provide assistance in handling the 600,000 refugees in the Dabab camp, as that issue also had regional security implications.

ZONKE ZANELE MAJODINA, Committee Chairperson, said that the Committee had noted many positive developments in Kenya since 2005, in particular the promulgation of the new and progressive Constitution with its Bill of Rights.  In its dialogue with the delegation, the Committee had expressed a number of concerns, which included the post-election violence and its aftermath, discrimination and the need for comprehensive legislation to address it and the need to fight impunity.  Furthermore torture, extrajudicial killings and entrenched cultural practices were inconsistent with the Covenant and it was hoped that Kenya would continue to look into those issues.  There was a long way to go before there was real equality and access to justice in Kenya, as well as access to the many other rights and provisions contained in the Covenant and the Constitution of Kenya.

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