Committee against Torture examines report of Kenya

Committee against Torture

16 May 2013

The Committee against Torture this afternoon concluded its consideration of the second periodic report of Kenya on how it implements the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Githu Muigai, Attorney General of Kenya, said that the 2010 Constitution contained a very progressive Bill of Rights and the non-derogable right to freedom from torture.  A major reform of the criminal justice system to enhance its effectiveness had been implemented, and measures had been taken to improve the conditions of detainees, including the development of draft legislation on their humane treatment and the use of Community Service Orders to reduce overcrowding in prisons.  The judiciary had been reformed and transformed into a highly accountable, transparent and independent establishment capable of strictly upholding and enforcing the Bill of Rights.  There were 600,000 refugees in Kenya and the draft National Refugee Policy was developed to better safeguard their rights.  The Prevention of Terrorism Act was enacted in 2012, which contained safeguards to ensure it was consistent with the Constitutional safeguards.

Committee Experts recognized the efforts of Kenya in the enactment of a number of groundbreaking laws and noted with concern reports of continued use of torture and the systemic subculture marked by corruption, extortion and complicity between those in power and the perpetrators.  Overcrowding of prisons was an alarming issue in Kenya and one of the most serious concerns was that small children ended up in prison with their parents, where they were exposed to sexual and other forms of violence and exploitation.  Other issues raised included the functioning of the Kenyan National Commission for Human Rights, criminalization of torture and establishment of a mechanism to investigate all claims and complaints of torture, a public authority to monitor and provide independent oversight of the police, and gender-based violence in refugee camps.

Responding to questions and comments raised by the Committee members yesterday, 15 May and today, the delegation stressed that Kenya had not carried a death penalty since 1987 and that the moratorium on the death penalty was in force pending the legal and political consensus on the issue.  The failure to have specific legislation on torture did not mean that Kenya failed to punish torture; the new Constitution itself recognized the freedom from torture, degrading and inhuman treatment in express terms, while the Prevention of Torture Bill would soon be presented to Parliament.  Complaints on allegations of torture by the police were investigated and prosecuted; a total of 143 such cases had been reported during the period 2008-2013, of which 18 had been dealt with under disciplinary action, 18 were pending arrest or were under investigation and 107 cases had been filed in court; a number of victims of torture had received compensation from the courts.

The delegation of Kenya consisted of representatives from the Office of the Attorney General, Ministry of Justice, Ministry of Foreign Affairs, Office of the Director of Public Prosecutors, Department of Refugees of the Government of Kenya, National Gender and Equality Commission, Kenya Prisons Service, National Police Service, National Cohesion and Constitutional Affairs and the Permanent Mission of Kenya to the United Nations Office at Geneva.

The Committee will next meet in public at 10 a.m. on Friday, 17 May, when it is scheduled to address the follow-up to articles 19 and 22.

Report of Kenya

The second periodic report of Kenya can be read via the following link (CAT/C/KEN/2).

Presentation of the Report of Kenya

GITHU MUIGAI, Attorney General of Kenya, introducing the report, said that freedom from torture was now a non-derogable right under the Constitution and that significant progress had been made in the country in the implementation of the Convention since the submission of the previous report in 2008.  The Law on the National Accord and Reconciliation Act of 2008 had paved the way for the adoption of the current Constitution which contained a very progressive Bill of Rights and made it easier for right holders to seek appropriate remedies for any violations.  The criminal justice system played a central role in securing the protection of rights guaranteed in the Convention and to this end, the Government had undertaken a major reform to enhance its effectiveness.  The National Police Service, the National Police Service Commission and the Independent Police Oversight Authority had been established and were operational.  The National Police Service Act made it unlawful for any police officer to commit torture or any cruel, inhuman or degrading treatment or punishment.  Measures had been taken to improve the condition of detainees, including the development of draft legislation on their humane treatment, use of Community Service Orders to reduce overcrowding in prisons, and others. 

A number of important measures had been adopted to strengthen the judiciary, transforming it into a highly accountable, transparent and independent establishment capable of strictly upholding and enforcing the Bill of Rights, such as the establishment of the Office of the Director of Public Prosecutions and of an independent Constitutional office that was not a subject to direction or control of any person or office.  Concerning the status of refugees in the country, Mr. Muigai said that Kenya had been receiving and registering asylum seekers and refugees fleeing conflicts in the Horn of Africa and other parts of the world and currently hosted over 600,000 refugees.  A Voluntary Repatriation Strategy to return Somali refugees had been developed, to ensure their safe and dignified return.  The draft National Refugee Policy sought to better safeguard the rights of refugees in Kenya.  In 2012, the Prevention of Terrorism Act had been enacted which outlined acts of terrorism and provided punitive penalties for perpetrators; it also contained safeguards to ensure it was consistent with the Constitutional safeguards, including the close supervision by the courts in a case where a person was suspected of committing a crime under the Act.

Questions from Committee Experts

SATYABHOOSUN DOMAH, Committee Expert and Rapporteur for the Report of Kenya, said there seemed to be two sides of Kenya, that told by the official sources and the one found on the grassroots level.  Despite the country’s enormous potential, the words heard in connection with Kenya were corruption, extortion, torture and cruel treatment.  Mr. Domah recognized the efforts of Kenya, particularly the enactment of a number of groundbreaking laws addressing areas of concern, the ratification of the Rome Statute, and the manner in which the Constitution had integrated international legislation, including customary international law.  Looking at the official side, it seemed that all those efforts had had a positive impact on the situation in Kenya.  Yet there were still reports of continued use of torture and cruel treatment; police conduct had traditionally been held very low in the eyes of the Kenyan public.  The country still seemed faced with this systemic subculture marked by corruption, extortion, and complicity between those in power and the perpetrators.  The people reacted to the police and it seemed that there was a perception that the State was failing through the police.  The credibility of the State was like the credibility of an individual: it was gained by ethical practice. 

Despite the stated commitment of the Government to submit to Parliament the draft Prevention of Torture Bill, ready since 2011, this had not happened yet, why?  Laws by themselves did not do the job and represented only the beginning of the road, not the end.  The Country Rapporteur requested additional information concerning police abuse of power in connection with the unlawful arrest of Somali refugees who had been kept overnight and robbed of their money; training and the evaluation of training programmes on the implementation of the witness protection system; and procedures to grant bail and obtain confessions.  Concerning the statistics on torture and the related cases coming to courts, there were only 35 such cases for the period from 2006 to 2011.  The Children Offices had the authority to enter premises without a warrant to establish whether female genital mutilation had occurred; this was an issue of concern, as one would expect either a warrant or very strong indications that this crime had occurred, or would be occurring.  What was the outcome of the extensive consultation on the Istanbul Protocol?

XUEXIAN WANG, Committee Expert and Rapporteur for the Report of Kenya, welcomed the 50 per cent increase in the training budget and asked whether training programmes covered the military.  Mr. Wang expressed his concern about the overcrowding and violence in prisons and asked about the timeframe for the implementation of measures to address this situation.  The delegation was also asked to comment on the upholding of the 24 hour rule for suspects held in police custody; planned measures to clear the backlog and deal with the detainees awaiting trial for a long time, sometimes several years; the expected date for the issuing of the report by the Truth, Justice and Reconciliation Commission on atrocities committed; the establishment of a mechanism to investigate all claims and complaints of torture and how the complaints received now were being investigated; and measures taken to investigate and prevent reoccurrence of gender-based violence in refugee camps.

A Committee Expert asked when the Prevention of Torture Bill 2011, the Persons Deprived of Liberty Bill 2012 and the Refugee Bill 2012 would be enacted.  The Kenyan National Human Rights Commission had the authority to visit places of detention and deprivation of liberty; what resources had been allocated to the Commission over the past three years, which places of detention had been visited recently and what were the Commission’s findings and recommendations?  Law enforcement officials were usually not charged with crimes of torture, but with the crime of murder for example; why did this happen if the Convention was incorporated in the Constitution which also contained the non-derogable right to freedom of torture?
  
Another Expert inquired about measures to eradicate the practice of hospitals to not allow women giving birth to leave before paying their bills and to prevent violence against children in school environments, including killings. 

The criminalization of torture was an extremely important issue and an Expert inquired about a law criminalizing torture committed by the police, about a public authority which could monitor and provide oversight of the police, and about the outcomes of the prosecution of police officers for corruption.  Further, the Expert was interested in hearing whether inquires by the Kenyan National Human Rights Commission led to prosecutions and were their reports binding for the authorities they were addressed to?

A Committee Expert noted that the trust of the public in the police and authorities was minimal and safeguards contained in the Constitution were not always respected.  Overcrowding in prisons was an alarming issue in Kenya and one of the most serious concerns was that small children ended up in prison with their parents; they could spend several years in the prison in inhuman and degrading conditions where they were exposed to sexual and other forms of violence and exploitation.  The independent oversight of the police was not functional despite the legislation in place; the same was true for the monitoring in prisons.

The delegation was also asked about the Commission to reform the legislation, the Working Group on the reform of the police force; the role of magistrates in the oversight of the police; the practice of lynching and measures to investigate, prosecute and punish such acts; and whether the African Convention on refugees was being applied to refugees from Somalia and if they were being treated collectively or individually.

CLAUDIO GROSSMAN, Committee Chairperson, raised the issues of impunity, prison overcrowding and gender issues and inquired about the results of police investigations.

SATYABHOOSUN DOMAH, Committee Expert and Rapporteur on Kenya, took up the issue of compensation and asked whether a bill was necessary if many of the cases could be dealt with administratively, unless a commission or a tribunal would be set up to deal with all the complaints.  Until several years ago Kenya still had chambers for torture which thankfully had been abolished, but the culture of torture had not been abolished and continued now in unidentified places.  Was the witness protection agency properly manned and resourced or was it just a shell agency?  The problem was not with the institutions but with some people; what was being done to profile those people so that the good name of the country could be restored?

Another Expert inquired about the psychiatric hospitals in the country.

Responses by the Delegation

In response to these questions and comments and others, the delegation said that certain comments made yesterday contained some inaccuracies, which the delegation wished to correct.  Kenya had not carried out a death penalty since 1987 and did not possess any instrument of execution.  The moratorium on the death penalty was in force pending the legal and political consensus on the issue.  Prisoners condemned to death did not wear uniforms marking them as death row inmates.  The failure to have specific legislation on torture did not mean that Kenya failed to punish torture; the new Constitution itself recognized the freedom from torture, degrading and inhuman treatment in express terms and the whole legislation of Kenya must be read through this constitutional provision.  Cases related to torture were routinely tried in Kenyan courts.  The adoption of the Constitution had created a priority order for the enactment of legislation, and the reason that the Torture Bill had been placed alongside other pending legislation without prioritization was because the Constitution itself had set up priorities.  This administration which had been sworn in a month ago was ready to prioritize this Bill among other bills, because constitutional requirements were met.  Public participation in the process of drafting of legislation was mandatory in Kenya and this was the case with the Torture Bill. 

Kenya was not a failing State but a beacon of hope in the region, with a very progressive Constitution, with free media and the rare practice of the public vetting its judiciary.  The institutions created by the 2010 Constitution were new and in their formative stages, and they enjoyed resources provided to the capacity of the State; it was work in progress but the country was already proud of the progress and achievements made.  Kenya was at the forefront of two major security initiatives, and those security contexts must be taken into account when commenting on the conduct of its armed forces.  The first was combating terrorism, which was a great undertaking given the porous borders with Somalia and the existing strongholds of Al Qaida in the region; the second was the fight against piracy in the interest of a secure East Africa and secure Indian Ocean.  Despite all the challenges posed by the 2008 post-election violence, Kenya was still a highly respected country and continued to play a leading role in the region and beyond and it hoped it would be able to work together with the Committee to address all pertinent issues.

Kenya was in the process of seeking public opinion about the ratification of the Optional Protocol to the Convention against Torture and the establishment of the national preventive mechanism; the Government was in favour of the ratification but first needed to fulfil the constitutional requirement of public participation in the drafting of the laws.  The Family Protection Bill of 2007 was delayed due to the need to discuss other urgent legislation as set up by the 2010 Constitution, but progress had been made in increasing access to maternal, newborn and child health.  The proposed reproductive health bill of 2005 had been withdrawn and there was a process to operationalize article 43 of the Constitution which for the first time would define access to health, including reproductive health, as a right.  Kenya had enacted the act criminalizing female genital mutilation and was committed to its eradication as it considered the practice as one of the worst forms of violence against women.  The Government had acknowledged the incidents of detention of women giving birth by hospitals and had declared a waiver on maternity fees.  In order to address torture of children in schools and at home through corporal punishment, Kenya had proposed amendments to the Children Act 2001 to include the prohibition of corporal punishment and any cultural practices which dehumanized the child; the Bill would be presented to the newly elected National Assembly.

Somali refugees were treated to the standards provided in the 1951 Refugee Convention, the African Union Convention and the national law Refugees Act 2006 which ensured domestication of those instruments.  Dadaab refugee camp, the biggest refugee camp in the world, which hosted about half a million refugees, was located in the northeast of Kenya, close to Somalia, which had been experiencing civil war for the last 20 years.  The Somali conflict often spilled over into the region, causing serious problems in the refugee camp.  Several measures were being undertaken to stop the violence and protect refugees, humanitarian workers and Kenyans, including a three-fold increase in the number of police officers, enhanced camp management, improved profiling and verification of residents to ensure they were refugees, and close cooperation with non-governmental organizations to address sexual and gender-based violence. 

Complaints on allegations of torture by the police were investigated and prosecuted; there had been a total of 143 reported cases during the period 2008-2013, of which 18 had been dealt with under disciplinary action, 18 were pending arrest or under investigation and 107 cases had been filed in court; of those cases filed in court, 63 had been finalized and 44 were pending.  A number of victims of torture had received compensation from the courts.  A Victims of Offences Bill had been drafted and proposed the establishment of a National Fund to provide for a comprehensive compensation framework, while the Prevention of Torture Bill also laid down a comprehensive framework for the compensation of victims.  There were several bodies which received and investigated complaints of torture or ill treatment by the police.  The Kenya National Commission on Human Rights was entitled to visit all places of detention in Kenya, assess conditions and make reports.  While its reports were not binding, a considerable number of its recommendations were being implemented by the State.

Kenyan law required that a detained mother could not leave a child behind if it had no custodian and this explained the presence of young children in prisons; they were kept in safe environments and provided with a special diet.  Bail might be granted in two instances: at the police station for petty offences or conforming to the 24 hour rule which allowed courts to consider and set the bail terms.  The legislation stipulated that a confession must be given voluntarily, without torture, and the confessions taken in a manner that contravened the legal provisions in any way were not admissible as evidence.  Preliminary data on post-election violence had been established by the Multi-Agency Task Force, whose final report was pending: a total of 6,443 investigation files had been opened, of which 1,201 had been taken to court.  Some 369 cases of sexual and gender-based violence related to post-election violence had been reported to the police; 163 cases had been taken to court, 66 had been closed and investigation was pending in 140 cases.

Responding to the questions concerning abuse of police power, the delegation recognized that the national police force had been vested with an enormous responsibility and power which must be checked.  The Constitution provided in sufficient details the rights of arrested persons.  The police had Police Standing Orders to ensure that all rights of all those arrested were respected and that they had been properly arrested.  The police code of conduct was being reviewed to bring it in line with the new Constitution; police did receive human rights training.  The investigation into the report of the robbery of Somali refugees by the police was ongoing.  The police had not received any reports of gang rapes of Somali women during the events in Eastleigh in Nairobi.  All cases of murder, including lynching of women accused of witchcraft, were subjected to judicial hearings.

Follow up Questions and Comments by the Committee Experts

SATYABHOOSUN DOMAH, Committee Expert and Rapporteur for the Report of Kenya, stressed that the principal question the delegation needed to answer was about measures undertaken to address the issue of torture.  Mr. Domah welcomed the information that the Bill on the Prevention of Torture would soon be presented to Parliament and expressed hope it would be enacted speedily.  It was important that the legislative and institutional measures addressed real problems on the ground. 

XUEXIAN WANG, Committee Expert and Rapporteur for the Report of Kenya, welcomed the fact that the President had commuted 4,000 death sentences.  This Committee had never condoned terrorism and Kenya had every right to be free from the threat of terrorism.  Combating terrorism must be done according to the rules and standards set by the United Nations.

Other Experts noted that freedom from torture was an enforceable right and asked the delegation whether the Convention against Torture had ever been invoked in legal proceedings.  Further, law enforcement officers accused of torture were not tried for acts of torture, but for murder or other offences, why?  The information provided concerning legal support and access to doctors for detainees was insufficient.  The police force remained one of key areas of concern in Kenya and the Committee welcomed the progress made to improve its functioning and oversight.  There must be a system in place to prevent torture from occurring and when it did occur, investigate and prosecute perpetrators.  What was being done to address rampant corruption among the police force, use of arbitrary detention and excessive force by the police, and to improve funding, available resources and motivation of the force?

Experts also asked whether the Multi-Agency Task Force on post-election violence was authorised to address issues of redress; and whether the Children Act 2001 currently under amendment also included penalties for the violations of the act itself.

Responses by the Delegation
   
The bills passed by the last Parliament specifically imported the language outlawing torture in the Police Service Act which demonstrated the commitment of the State and verified that Kenya intended to comply with its obligations under international law.  Abolition of the death penalty was not supported by the will of Kenyan people who had rejected the proposal on several occasions.  The disconnect between training and lack of a change in the culture of police operation was a challenge that the Government accepted and it was committed to continue to address it.  One of the challenges to the police was the infiltration of elements from Somalia, particularly from the Al-Shabaab, and the mingling with the ethnic Somali population in the country.  The use of fire arms was being constantly reviewed.

It was important to appreciate that new institutions had been created to ensure the oversight of the police, particularly the New Commission with the responsibility of hiring competent people with integrity and disciplining police officers.  All police officers were being vetted and it was important that the Committee gave those institutions time before judging them and proclaiming them failed.  The police was bound to obey the Director of Public Prosecution.  Kenya was in the process of developing a national legal aid scheme which would provide state-paid legal aid to victims of torture and other individuals in need. 

The Kenyan National Human Rights Commission was free to visit all prisons in the country and it had visited most of them.  The Commission made an annual report to the President and Parliament and their reports and recommendations had led to reforms in the prison system. 

If a person made a claim of torture, there were three ways to vindicate their right: an administrative claim, a civil claim handled by a civil suit, and through criminal prosecution.  When the prosecution was drafting the charge sheet, the Criminal Code, the Police Act and other legislation could be used for this purpose.  Instead of having this compendium of legislation there would be in place one piece of legislation to assist to draw charges of acts of torture.

Closing Remarks

GITHU MUIGAI, Attorney General of Kenya, reiterated the commitment of Kenya to full and unconditional cooperation with the treaty bodies mechanism and appreciated the significance of those procedures in strengthening human rights globally.  The dialogue with the Committee was informative and useful and would improve the nature and quality of Kenyan reporting.

ESSADIA BELMIR, Committee Vice-Chairperson, thanked the delegation and said that the dialogue would continue beyond the two meetings held today and yesterday. 
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