The court has compelled the Government to complete a data protection impact assessment, as required by the Data Protection Act (2019), prior to processing of data or rolling out Huduma Cards.

As a consortium of organizations working on citizenship, identification, human rights, and data protection, we applaud this judgment and the enforcement of the Data Protection Act by the courts. It is paramount that relevant legal frameworks are in place and followed before collecting and managing data. We call on the Government of Kenya to comply with this judgement by conducting a robust and thorough Data Protection Impact Assessment to protect the rights of all citizens and residents in Kenya.

A Data Protection Impact Assessment is designed to identify risks that may occur through processing of data and put in place proper mitigation measures. A Data Protection Impact Assessment is critical to ensure compliance with both data protection laws as well as human rights obligations. Such assessments should involve mapping of all data processing and data flows, conducting consultation with stakeholders - which for a national initiative like NIIMS should include widespread public consultation on the purpose and risks of the system, completing a detailed risk assessment, and developing a range of measures to address the risks and ensure compliance with the law. If designed and implemented properly, a Data Protection Impact Assessment can reduce the risk of data breaches and intrusion of privacy.

We call on the Government of Kenya to follow legal requirements and international best practices on Data Protection Impact Assessments as they complete the exercise.

In addition to carrying out a proper Data Protection Impact Assessment, Kenya’s identification system and data protection regime must be reformed and strengthened in several other ways to protect the rights and serve the needs of all Kenyans. In particular, we call on the Government of Kenya to:

1. Ensure a fully inclusive identification system: The Government must ensure all Kenyans can access identification documents such as birth certificates and national identity cards prior to moving forward with Huduma Namba. If Huduma Namba is rolled out, it must be done in phases, with a clear transition period to eliminate discriminatory treatment and expand access to documentation under the current system. There must be options for all to enroll and safeguards to protect against denial of services for those within and outside the system. By focusing on reform and access to the identification system first, the Government will reduce the risk that millions of Kenyan citizens will be left behind in the transition to digital.

2. Establish a robust legal framework and governance body via country-wide public participation: Given the extensive nature of Huduma Namba and the impact it will have on the  lives of all Kenyans, there is need for a national discussion about the future of identification in Kenya, including public input into the development of anchoring legislation, the system design, a governing body for NIIMS that can be held accountable for implementation and give effect to rights enshrined in the Constitution and other applicable laws.

3. Ensure the full realization of the right to privacy and data protection: The Government must ensure Kenya has a financially independent and well-resourced data protection authority, capable of discharging its mandate under the Data Protection Act. The government ought to ensure the swift adoption of the draft Data Protection Regulations (2021). Likewise, the government must realize its responsibility to comply with the Act by guaranteeing threats to human rights are sufficiently mitigated and all necessary data protection safeguards have been implemented.

In conclusion, the Government of Kenya should not push Huduma Namba forward in blatant disrespect of the law but instead ensure the creation of an identification system and data protection scheme that protects and gives effect to all Kenyans’ rights enshrined in our Constitution.

Signed by:

1. Katiba Institute
2. Kenya Human Rights Commission
3. Heralding Development Organization (Paranet)
4. ARTICLE 19 Eastern Africa
5. Centre for Minority Rights Development (CEMIRIDE)
6. Defenders Coalition
7. Namati Kenya
8. Nubian Rights Forum
9. Access Now
10. Haki Centre

Media Contact:

Moses Gowi

0729752804

mgowi@khrc.or.ke

Background

WE the representatives of diverse and impacted communities in Laikipia County, Kenya converging at the Kenya Human Rights Commission on the 21^st day of September 2021;

HAVING mutually and peacefully co-existed within the area for decades;

DEEPLY CONCERNED about the current developments in Laikipia County whose root causes mainly point to Historical Land Injustices and manifesting in gross violations of Human Rights hereunder:

Manifestations of Historical Land Injustices.

These include but not limited to:

• Retrogressive colonial and post-independence policies and practices on land and resource governance
• Few privileged elite have unjustly amassed huge tracts of land denying local communities land rights.
• Limited access to pasture, water for livestock and human consumption.
• Grabbing of public land including ADC farms; privatization and closure of public roads, stock routes and holding grounds; which are meant to facilitate movement within the area.
• Human-wildlife conflict due to competition over resources for both animal and human use.
• Conflict between the pastoral and farming communities owing to different land use practices.
• Absentee land owners who possess huge tracts of unutilised land at the expense of the local landless communities.
• A growing population against an increasingly dispossessed community.
• Opaque land dealings and lack of a county land register that undermine openness on the status of land ownership.
• Non action by the Ministry of Lands and National Land Commission on leases that have since expired which denies the community opportunity for dialogue on land ownership.
• Privatisation of community land thus denying indigenous communities access to land based resources from conservancies.

Manifestations of Systemic and Gross Human Rights Violations linked to the above mentioned land injustices

• Arbitrary arrests, incessant trumped up charges and hefty fines as a form of repression to silence voices condemning land injustices.
• Systemic marginalization and atrocious treatment as manifesting in;
  1. limited access to social amenities in select communities like roads, schools, and health facilities;
  2. Punitive vetting of select communities for issuance of identification cards (IDs);
  3. Structural profiling and labelling of some communities as invaders, raiders, criminals and bandits.
  4. Selective arming of the communities thus exacerbating suspicions and violence.
  5. Collective punishment targeting select communities in the event one of them is on the wrong side of the law.
  6. Political underrepresentation in electoral positions.
  7. Divisive and exclusionist approaches by the local administration to ostensibly address outstanding community concerns.
  8. Failure to appreciate and embrace the diverse social and economic lifestyles of the different communities.
  9. Abductions, extra judicial executions and enforced disappearances particularly to the pastoral communities.
  10. Alleged incitement of communities against each other.
  11. Inadequate response and compensation in the event locals are injured or property is destroyed by wild animals as preference is given to wildlife over human life.
  12. Perpetual limitation of fundamental rights and freedoms including freedom of movement, freedom of assembly, right to own property among others.

Despite all these, there has been general failure by successive regimes to fully address the above root causes and manifestations even after initiating truth telling, investigative commissions and independent offices. It is the reason we are facing the current NATIONAL CRISIS which has led to abominable loss of lives, livelihoods, livestock and properties; unprecedented injuries, abductions, and displacements. It is from the foregoing that we DEMAND AS FOLLOWS;

• The National Land Commission initiate investigations on the above-mentioned land injustices within the next one week.
• The National Assembly and the Senate responsible committees for land affairs lead a bicameral fact-finding mission on the above cross-cutting issues within one week. That would include involvement of the Justice and Legal Affairs Committee (JLAC) and Security and Administration Committee.
• The National Gender and Equality Commission (NGEC), Kenya National Commission on Human Rights, and Independent Policing Oversight Authority (IPOA) to immediately initiate joint inquiry into the above mentioned issues within one week.
• The Kenya Wildlife Service (KWS) to resolve and provide adequate remedies to the question of human wildlife conflict.
•  The National Registration Bureau (NRB) to stop and resolve punitive vetting of communities.
• The Commission on Administrative Justice (CAJ) to investigate the conduct of criminal justice actors in Laikipia County for swift remedial action.

In conclusion, we urge the communities to continue observing peace and respecting rights for all.

Date: 21st September 2021

Signed by:

Kenya Human Rights Commission and Laikipia impacted communities.

Communique

Civil Society Organizations (CSOs) acknowledge that the Judiciary is a key pillar towards realising human rights, democracy, and the rule of law. Within our respective mandates, we continue to play an important role in enhancing judicial reforms and strengthening the administration of justice, promoting and protecting the independence, integrity, and legitimacy of the Judiciary.

In this regard, as a culmination of the commemoration of the International Day of Democracy, a section of CSOs held a virtual meeting with the Chief Justice and President of the Supreme Court, Hon. Lady Justice Martha Koome, on September 17, 2021, to discuss areas of collaboration and contribution towards realizing the Chief Justice's vision of "Social Transformation through Access to Justice."

The meeting was attended by the Kenyan Section of the International Commission of Jurists (ICJ Kenya), International Justice Mission Kenya (IJM Kenya), Kenya Human Rights Commission (KHRC), Amnesty International Kenya, Wangu Kanja Foundation, Centre for Rights Education and Awareness (CREAW), and Transparency International - Kenya. Key issues and proposals raised by the CSOs include:

1. The transfer and promotion of judges and related adverse effects on part-heard matters;
2. Support by CSOs in capacity building and modalities for engaging with the Judiciary Training Institute (JTI);
3. A proposal for the Chief Justice to hold a bi-annual meeting with CSOs involved in championing access to and administration of justice for vulnerable and marginalised groups;
4. The need to have representatives of Community Justice Centers in Court User Committees to further enhance access to justice for vulnerable communities;
5. Concerns over rising cases of gender-based violence, sexual offences, police abuse of power, extrajudicial killings, and enforced disappearances as we head into an election year. Further, CSOs share a proposal for the Chief Justice to consider having specialised courts to speed up the resolution of such cases;
6. CSO's support to the Judiciary in conducting public awareness campaigns on the Judiciary e-filing system by using various forms of media to sensitise users of the system on its functions;
7. Concerns over increasing threats and attacks on the Judiciary and judicial officers as well as CSOs support to counteract the attacks and strengthen judicial independence, especially in light of the 2022 general election;
8. Case backlog, emphasising strategies to expedite the hearing and determination of Anti-Corruption and Economic Crimes (ACEC) cases, particularly those involving public officers likely to contest in the 2022 general election.

The Honourable Chief Justice acknowledged civil society's role in promoting access to justice and the rule of law. She welcomed further engagement with civil society through open and constructive dialogue while maintaining judicial independence.
Through increased funding, the Chief Justice indicated that the Judiciary would prioritise efficiency through expeditious disposal of cases and elimination of backlog, including a special focus on anti-corruption cases and those on extrajudicial executions and sexual and gender-based violence.
She highlighted the intentions of the Judiciary to enhance inter-agency and inter-institutional collaboration between the Judiciary and other arms of government and non-government stakeholders, to increase and retain judicial capacity and independence in anticipation of the 2022 general elections.
Further, the Chief Justice affirmed the Judiciary's plans to leverage policy organs on judicial funding to ensure efficiency, prioritise training and capacity building. Additionally, the Judiciary will build the capacity of judicial officers on targeted emergent and thematic issues through collaboration between stakeholders judicial training institute.
Finally, Lady Justice Martha Koome noted that through consultation and public participation, the Judiciary would strengthen Court Users' Committees (CUCs) to increase access to justice by vulnerable members of the public and marginalised groups/communities. She affirmed her vision to maximise the potential of CUCs to realise the recently launched vision for social justice to create courts as centres of excellence that innovate suitable unique interventions to address peculiar needs.
To this end, Civil Society Organisations pledge continued support to the Honourable Chief Justice in implementing her vision for the Judiciary and championing judicial independence and the rule of law. We encourage the Chief Justice to remain steadfast and true to her oath of office in protecting and defending the Constitution of Kenya, 2010.

Dated, 17th day of September 2021.

Signed by: 

Elsy C. Sainna
Executive Director, ICJ Kenya

On behalf of other Civil Society Organisations;

1.    Benson Shamala - International Justice Mission - Kenya
2.    Irungu Houghton - Amnesty International Kenya
3.    Davis Malombe – Kenya Human Rights Commission
4.    Wangechi Wachira - Centre for Rights Education and Awareness - Kenya
5.    Wangu Kanja - Wangu Kanja Foundation
6.    Sheila Masinde – Transparency International - Kenya

RE: DELIBERATE DELAYS IN THE HUDUMA NAMBA APPEAL CASE.

Open letter to the president of the Court of Appeal and registrar of the Court of Appeal.

June 11, 2021

Dear Justice Daniel Musinga,

We, the undersigned organizations, are deeply concerned by the Court’s delay in issuing directions on the NIIMS Appeal case.

In 2019, through the Ministry of Interior Co-ordination and the Ministry of Information Communications and Technology, the government of Kenya launched the National Integrated Identity Management System (NIIMS), commonly known as Huduma Namba (Service Number). The Kenya Human Rights Commission (KHRC) and the Nubian Rights Forum (NRF) challenged the implementation of NIIMS in Court, citing exclusion, inadequate data protection laws and lack of public participation, among others.  On January 30 2020, the High Court issued orders that NIIMS lacked the appropriate and comprehensive regulatory framework that applies to the constitutional requirements.

In monitoring adherence to the judgement issued, we note that the government has rolled out the mass issuance of Huduma Namba cards and announced plans to phase out the national identification cards by the end of 2021. However, The government is yet to implement a regulatory framework compliant with the court orders. Therefore, ongoing plans for mass issuance and registration violate the orders issued in January 2020.

In February 2020, We filed for appeal at the Court of Appeal, and due to the sensitive nature of NIIMS and as a matter of public interest,this was filed under a certificate of urgency. However, we observe that more than a year later, the Court of Appeal is yet to give direction on the matter. While other similar cases, such as the BBI appeal, have been expedited within days of filling, the NIIMS appeal is of no less public importance as a matter of public interest. This suggests a deliberate and discriminatory approach in prioritizing the NIIMS appeal.

In view of the foregoing, we demand that;

1.     The Judiciary and the Court of Appeal in particular appreciate and apply the right to equal protection before the law without any discrimination as enshrined in the Constitution of Kenya and International Human Rights instruments.

2.  The Government of Kenya suspends further implementation of NIIMS until it complies with all the orders issued by the High Court.

Yours sincerely:

Nubian Rights Forum(NRF)

Kenya Human Rights Commission(KHRC)

Specifically, President Uhuru Kenyatta and his regime have relentlessly attacked or undermined the judiciary through derogatory public statements, targeted attacks against specific judges, smear campaigns on social media, unsuccessful prosecution, disobedience of court orders, cuts in budgets among others.

The latest was on 1^st June 2021, during the Madaraka day celebrations, where Mr. Kenyatta stated inter alia; “from the nullification of the Presidential elections in 2017 to an attempt to stop the will of the people as expressed through the BBI bill, the Judiciary has indeed tested our constitutional limits.”

Two days later, the President picked 34 out of the 40 lists of judges (the initial list had 41 before one judge passed on) submitted by the Judicial Service Commission (JSC) for his appointment.  These were sworn in the following day, during a public function that was hastily convened at State House, Nairobi.  For no reasons or explanation went into the president’s omission and in any case, none is tenable considering the court orders of February 2020 which directed him to appoint judges in accordance with the recommendation of JSC in 2019.

We wish to remind Mr. Kenyatta that this behavior is utterly against the principles, values, and provisions sets by the constitution he solemnly swore to obey, preserve, protect and defend and do justice to all without fear, favour, or ill-will.  Pursuant to Article 166(1) (b) of the Constitution, he shall appoint judges, in accordance with the recommendation of JSC.  Thus, he has no mandate to choose which judges to pick or reject for his role is purely administrative as the Head of State.

Indeed, it is time that Mr. Kenyatta and the rest of the political class note that judicial independence is non-derogable and safeguarded in both the supreme law and other international frameworks. Thus the institution and its officers shall not be subject to the control or whims of any person or authority. The same class should recall that the authority they exercise is derived from the people and shall ONLY be exercised in accordance with the Constitution and to their benefit.  Thus as provided for in Article 73(1) (b), it is a responsibility to serve the people, rather than the power to rule over them.

It is on this basis we associate with, and got enjoined in the Katiba Institute’s Petition No 206 of 2020 in which the KHRC remains the 2^nd Interested Party.  The case seeks among others, orders prohibiting the President, or his agents from appointing, gazetting, or swearing in a partial list of the 41 nominees and also an order prohibiting the Chief Justice and JSC or their agents from the judges appointed from the partial list of 41 judges.  We are also seeking an order compelling the President to appoint all the 41 persons as recommended by JSC among others. We are deeply concerned that the initial list has suspiciously changed over time.

We shall therefore continue to judiciously and jealously defend the independence of the judiciary and other key organs of the State against the nefarious whims of the political elite. We shall also stand against any effort to turn Kenya into a political dictatorship, where respect for human rights and the rule of law doesn’t hold.  Finally and pursuant to Article 3 of the Constitution, we call upon all Kenyans to meet their obligation to respect, uphold and defend the Constitution. May justice be our shield and defender.

Monday, June 7, 2021.

On 11^th February 2021, Camellia announced to its shareholders and traders that it would spend up to Kshs. 694 million to settle individual claims as well as pay legal fees for claims of gross human rights violations committed by Kakuzi security guards. These claims had been lodged in the London High Court by Leigh Day, a leading UK law firm that partnered with KHRC and NRC to bring the suit against Camellia. The UK suit comprised of 85 claimants who live around Kakuzi, with claims ranging from killing(s), assault and rape in the hands of Kakuzi guards.

Locally and in its suit, Kakuzi is alleging that KHRC and NRC have violated its right to a fair trial under Article 50 of the Constitution and that the statement issued on February 14^th is untrue and that it has damaged Kakuzi’s reputation and that of its shareholders and partners. Kakuzi is seeking to compel the KHRC and NRC to withdraw the press statement and issue a public apology.

It is outrageous for Kakuzi to allege that the two organisations have violated its right to a fair trial. The right to a fair trial under Article 50 refers to trial before a court or tribunal. Kakuzi’s allegation that KHRC and NRC have denied the company this right is thus grossly misguided.

Additionally, both KHRC and Ndula Resource Centre have instituted a number of judicial and non-judicial approaches to seek redress for communities and workers impacted by land rights violations, severe human rights and labour rights abuses. Kakuzi has oftentimes thwarted the attempts by the KHRC and NRC to get justice for victims who have reported to the two organisations about harm caused by Kakuzi guards over the years. In 2018, for instance, Kakuzi-impacted communities, with the support of KHRC and NRC, successfully filed an application before the National Land Commission (NLC) seeking restoration of their land. Instead of Kakuzi engaging these communities to find a durable solution with regard to the claims raised, the company rushed to court challenging the mandate of the NLC to determine historical land injustices. The result of this move is that an award given by the NLC in favour of the communities remains in abeyance. Specifically, the NLC directed that all public utilities sitting on Kakuzi land be surrendered back to the county and national governments and that all public roads closed by Kakuzi be opened for access by the community.

The claims by Kakuzi that the facts in the KHRC/NRC statement are untrue is ridiculous when indeed Camellia’s staggering settlement was with regard to human rights violations instigated by Kakuzi security guards. In fact, Camellia pointed in its statement that the settlement is intended not only to resolve the claims themselves, but also to help Kakuzi to strengthen its relations with the local communities.

Further and following the settlement by Camellia, Kakuzi instituted a raft of reparative measures which included (1) funding of charcoal kilns and access to firewood for the local communities to produce and sell charcoal, (2) building two social centres, (3) employing safety marshalls, (4) building three new roads of motorable access by the community without any requirement to obtain a licence from the company as was previously the case (5)  establishing of a Technical Working Group to survey and demarcate land which has been previously donated by the company, and (6) designing and implementing a human rights defenders policy. These measures were not instituted as part of a corporate social responsibility (CSR) programme. They were part of a desperate attempt by Kakuzi to restore its UK market lost in the wake of media reports on Kakuzi’s nefarious behaviour towards its host community and workers.

Based on the foregoing, the statement issued by KHRC and NRC remains accurate reporting and fair comment on the character of Kakuzi. The issues raised by the two organisations are in the public domain and have been well documented by local and international media over the years.

The KHRC and NRC strongly believe that Kakuzi’s course of action, if any, lies in a libel court. Theirs is a libel case camouflaged as a constitutional petition. The suit lacks specificity and is thus a waste of the courts’ time.

The KHRC and NRC are acutely aware that the suit by Kakuzi is a strategic lawsuit against public participation (SLAPP) intended to intimidate the two organisations. Kakuzi’s main aim is to burden the KHRC and NRC with legal costs and to undermine and scuttle advocacy against injustices it is accused of committing. The intended result is to cause KHRC and Ndula Resource Centre to abandon their activism against the company by stifling their right to freedom of expression. The two organisations are confident that this suit will be seen for what it is – frivolous litigation whose main intention is to harass and muzzle human rights defenders.

Finally, the KHRC and NRC reiterate their commitment to continue supporting the communities and workers adversely impacted by Kakuzi. Both organisations will remain resolute in the face of the SLAPP suit and will fight it to the letter. We shall, therefore, not relent our advocacy on the pending issues outlined in our February 14^th statement and we hereby DEMAND as follows:

1. That the Murang’a County Assembly ensures that Kakuzi land leases are not renewed until all claims on historical land injustices are resolved.
2. That the UK market sustains the current boycott of Kakuzi produce until all pending claims are addressed. We will further initiate an engagement with other Kakuzi markets to boycott any produce coming from Kakuzi until there is demonstrable change in attitude and behaviour on the part of Kakuzi.
3. That the national Parliament and the Senate immediately investigate Kakuzi on all the pending claims and institute appropriate accountability measures against the company.
4. That the National Land Commission implements forthwith, its decision of February 2019 directing the surrender by Kakuzi of ALL public utilities on its land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate.

WE SHALL continuously monitor the behaviour of Kakuzi to ensure non-repetition of violations and non-discrimination of workers and communities.

WE SHALL also expose the company for coming after human rights defenders both at the community level and the organizational level.

Signed:

1. Kenya Human Rights Commission.
2. Ndula Resource Centre.

Through this landmark decision, the Judiciary boldly upheld and affirmed the sovereignty of the people and the supremacy of the Constitution, while reclaiming its independence. The court stated that the action by the President to initiate, support and lead the BBI process amounted to abuse of office and a violation of Chapter Six of the Constitution of Kenya on Leadership and Integrity.  While this was yet again another fundamental moment for Constitutionalism in Kenya, the political class have continued to express their displeasure with the decision; with Members of County Assembly, Parliament and Senate calling it judicial activism.

Therefore, we, representatives from the institutions hereunder;

Recognizing

1. The independence of the Judiciary and sanctity of the Rule of Law;
2. Cognizant of the sacrifices of those Kenyans on whose labour, love and life we rewarded ourselves with the current Constitution; and
3. In exercise of our sovereignty as provided in Article 1 of the Constitution which provides that the sovereign power of the people shall be vested in the Executive, Legislature and the Judiciary.
4. That separation of powers in arms of government aims to safeguard against arbitrary and capricious governance and the abuse of power.

Wish to pronounce ourselves to the following issues:

1. Respect for the Judiciary and the Judges

We have noted with great concern, that in the recent past, the political class have continued to persistently undermine Judicial Independence through the disobedience of court orders, derogatory public statements, budget cuts, refusal to appoint judges, targeted attacks against specific judges through social media platforms, smear campaigns and unsuccessful prosecutions.  This state of affairs has gained high traction since the judgement last week.

In 2017, the Supreme Court through a majority decision annulled the election of Uhuru Kenyatta as president of the Republic of Kenya in a petition that was brought by former Prime Minister Raila Odinga and his running mate Kalonzo Musyoka. While such a decision was a defining moment for the rule of law and fidelity to the Constitution in Kenya, the entire Judiciary was subjected to targeted attacks by the political class who not only called them WAKORA, but also promised to revisit. This threat has since been realized and is evident from the Executive’s persistent disobedience of court orders, the refusal to appoint 40 judges who were recommended by the Judicial Service Commission and massive budget cuts that have all been aimed at weakening the Judiciary.

We reiterate and assert that the constitutional provisions on judicial authority and independence expressly dictate that in exercise of judicial authority, the judiciary shall not be subject to the control or direction of any person or authority. The Executive and Parliament must be reminded that the constitutional guarantees of judicial independence are non-negotiable and are recognized by international and regional standards and norms. We shall continue to defend judicial independence and will continue to speak out against personal attacks of judicial officers. Threats of violence when Judgements do not favour the executive are as unfortunate as they are unhelpful in a country governed by the rule of law.

 We, therefore, demand that:

1.  The Executive and the Legislature respects judicial independence and decisions issued by Courts of Law.
2. The President expedites the appointment of the 40 Court of Appeal and High Court judges whose appointment has been pending for almost two years.

2. Attacks on Civil Society:

We are concerned with the continued attacks on individual human rights defenders, whistleblowers, journalists and organizations working to advance the rule of law in Kenya. Since the heavily contested 2017 general elections and during the drafting of the BBI and public participation process, there have been several attempts to discredit their work online and in public gatherings. Since the Jubilee administration comes into power in 2013, there has been a consistent policy to suppress and systematically attack Civil Society Organizations and other voices of dissent with a view to undermining their legitimacy and efficacy around their advocacy on key human rights and governance issues. This also saw the Judiciary and Civil Society being profiled as the Evil Society. More recently, the Defenders Coalition and Rtd Chief Justice Willy Mutunga were openly attacked by Lawyer Paul Mwangi, on a leading national television channel. All Kenyans have a right as individual citizens or as citizen groups to go to Court to seek enforcement of rights, defend the Constitution and uphold Judicial Independence.

We, therefore, demand that:

1. That Paul Mwangi should immediately retract this statement and officially apologize to the Defenders Coalition and The Rtd Chief Justice Dr Willy Mutunga.
2. We also call on the Political class to exercise restraint and cease personalized attacks on activists, civil society and Kenyans of goodwill for exercising their constitutional rights.

3. Use of Public Resources in the BBI Process

The court ruled that the action by the President to initiate, support and lead the BBI process amounted to abuse of office and a violation of Chapter Six of the Constitution of Kenya on Leadership and Integrity.  Despite the numerous and overwhelming concerns on the legality, feasibility and sincerity of the Constitutional Amendment Bill 2020 process, the promoters and political leaders including the Executive, have continuously utilized taxpayers’ money to support the highly controversial process.

The Parliamentary Budget Office (PBO) in a report, ‘Evading recessionary pressure under a mounting debt burden’ stated that we are unable to meet our debt servicing obligations and this continues to raise public expenditure amidst low and underperforming tax collection. The determination by the court on the BBI process patently infers that public resources were utilized to support illegality.

As such, fully aware of a notice of appeal filed on the matter, nonetheless demand the following:

1. The President, all public institutions, and officers both at the National and County level, in the public interest, cease and desist from using public resources (including the deployment of public officers and other civil servants) on the BBI process.

2. The Auditor General immediately and expeditiously conducts an audit of all public resources, monetary and non-monetary resources, that have been utilized in the BBI process from its inception to date (including the sources) and, prepare and publish a report that will be accessible to the public.

3. The President should be held personally liable for funds expended on this process, having been adjudged as illegal and unconstitutional.

4. The centrality of Public Participation and Access to Information

Article 10 (2) (a) provides that the ‘national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people.’ Courtesy of that provision, the Constitution moved in to grant the pathway to the realization of Article 1 (1) which provides that ‘(A)ll sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.

Yet, its implementation remains one of the most frustrating provisions. It has almost entirely remained an exercise in formality undertaken to rubber stamp predetermined positions and preferences. Its implementation is more tokenistic than it is meaningful. Its realization in the meaningful sense has been largely confined to the zone of ‘illusion and aspiration’.  This was evident during the BBI process, where citizens were not provided with adequate information and time to interrogate the process.

In the judgement, the High Court observed that in ‘the absence of meaningful public participation and sensitization of the people prior to the collection of signatures in support of the Constitution of Kenya Amendment Bill, the exercise of signature collection in support of the amendment bill was constitutionally flawed.’

For meaningful public participation, the High Court aptly captured the direct nexus with access to information. It noted that for the public to engage and participate meaningfully, information on the subject matter must be provided: ‘(F) or meaningful public participation to be realized, citizens must be given the information they require to make decisions that affect them.’ The Constitution via Article 35 does secure the right for every citizen to access information held by the State. In 2016, Parliament moved a step further by enacting the Access to Information Act, 2016, intended to refine the implementation of Article 35. It is concerning though that passage of regulations to grant full implementation of the Act has stalled.

Based on the foregoing, we make the following demands:

1. Parliament enacts Public Participation legislation to bindingly define and refine the parameters qualifying public participation as pointed out by the High Court in its recent judgement.

2. A swift move is made to put in place Access to Information Regulations to secure sharing of information with the public by way of implementation of Article 35 of the Constitution and Access to Information Act, 2016.

3. All future initiatives requiring public participation should adhere to the laws of Kenya, established jurisprudence and best practices.

4. The Constitutional Commissions should reclaim their space weakened in the past two years through capture by the State to an extent that they did not have substantive input to the Building Bridges Initiative.

Signed by:

1. Kenya Human Rights Commission
2. Defenders Coalition
3. Transparency International Kenya
4. Independent Medical-Legal Unit
5. The Kenyan Section of the International Commission of Jurists
6. INUKA Kenya Ni Sisi!
7. CRECO
8. Haki Africa
9. Social Justice Centres Working Group
10. CRAWN Trust
11. MUHURI
12. Katiba Institute
13. Kongamano La Mageuzi
14. Linda Katiba Movement
15. Kenya Tuitakayo Movement.
16. FIDA-Kenya

The incident took place on March 30, 2020, in Nambale town, Busia County when Police officers allegedly discharged teargas in a private home, beating up, assaulting and destroying properties of Benard Orenga, his wife, children and neighbours.

On 21^st January 2020, the Independent Policing Oversight Authority (IPOA) concluded investigations and recommended various charges against the officers. They were to take plea yesterday (1^st February 2021) on charges of assault, causing bodily harm and malicious damage to property, however, the Office of the Director of Public Prosecutions (ODPP) made an oral application to withdraw the case.

As PRWG-K, we opine that police officers who abuse their authority must be investigated and prosecuted. Kenyan will only move towards the rule of law when all those who are suspected to have violated it, including police officers, are prosecuted and given an opportunity to defend themselves in a court of law

We continue to stand with the families of the victims of police excesses even during the enforcement of COVID-19 rules and emphasise that the use of force should strictly be guided by the law. The use of force should only be used when legal, necessary, proportionate, accountable.

We call upon the ODPP to reconsider their stance on this case to ensure justice for the victims and equality before the law.

Signed by the following members of the PRWG-K:

1. Independent Medical Legal Unit (IMLU)
2. Amnesty International – Kenya (AIK)
3. Kenya Human Rights Commission (KHRC)
4. Transparency International Kenya
5. Katiba Institute
6. HAKI Africa
7. International Justice Mission (IJM Kenya)
8. SOWED Kenya
9. Usalama Reform Forum
10. Kariobangi Paralegal Network
11. Defenders Coalition
12. Shield for Justice
13. International Commissions of Jurists (ICJ) –Kenya
14. Peace Brigades International (PBI)
15. International Centre for Transitional Justice (ICTJ)
16. Women Empowerment Link (WEL)
17. Constitution Reform Education Consortium (CRECO)
18. Wangu Kanja Foundation

RE: 4^th Periodic Review for Kenya on the International Covenant on the Civil and  Political Rights by the United Nations Human Rights Committee during the  COVID-19 pandemic.

Dear Ms. Photini Pazartzis,

We, the undersigned non-governmental organisations in Kenya, write to you concerning the online review of Kenya on its 4^th Periodic Report to the ICCPR. We express our appreciation to the UN Human Rights Council that pursuant to the letter dated 11^th May 2020, we encouraged the UNTBs to undertake their mandated activities remotely where feasible, and the UN Human Rights Committee decided to hold a virtual review for Kenya on the 9^th- 11^th of March 2020. The Committee was able to ensure a safe and effective civil society involvement where this would have been a component of in-person sessions.

The review was important as the situation in the country is witnessing a deterioration with respect to civil and political rights especially with the enforcement of measures put in place to contain the COVID-19 pandemic, hence the need to remind the government of their obligation under international law. The review’s concluding observations are a clear reflection that our voices as civil society were heard and considered by the Committee. The Virtual session allowed a bigger number of NGOs to participate as they did not have to incur expenses related to travel to Geneva for a physical review as has been in the past. We recommend that this method incorporating both online and physical meetings thus making it more inclusive should be adopted moving forward.

The review was however not without challenges. The platform used for the review was very technical and not user friendly. This was also evident by the numerous technical difficulties occasioned during the review and in particular the formal NGO  briefing, which also led to the loss of time. We recommend that the Committee should consider using a platform that is friendly to everyone.

We urge the Committee to continue with the online reviews and for states and NGOs  to participate in the review as it will be detrimental for rights-holders if the Committee, who are the only independent and expert monitors of the legally binding human rights treaties, are not able to execute their mandate during the COVID-19  crisis.

Sincerely,

Signatories  

1. The Independent Medico-Legal Unit;

2. Haki Africa;

3. Kenya Human Rights Commission;

4. Law Society of Kenya;

5. Legal Resources Foundation Trust;

6. Defenders Coalition;

7. National Gay and Lesbian Human Rights Commission;

8. Refugee Consortium of Kenya;

9. Muslims for Human Rights (MUHURI);

10. Faraja Foundation;

11. International Center for Transitional Justice (ICTJ);

12. Stop the Traffik Kenya

13. Transparency International;

14. Article 19 East Africa;

15. Centre for Minority Rights Development (CEMIRIDE);

16. Center for Rights Education and Awareness (CREAW);

17. The Kenyan Section of the International Commission of Jurists (ICJ Kenya); 18. The Reproductive Health Network;

19. Kenya Ethical and Legal Issues Network.

Today, at a conference on “Women in leadership: Achieving an equal future in a COVID-19 world” organized by the County Gender Sector Working Group, in Kisumu, in Western Kenya, FIDH and its member organisation in Kenya, KHRC, are presenting the results of their investigations into cases of sexual violence committed in the midst of 2017 presidential election in Kenya. Since 2018, our organisations interviewed and followed the situations of a total of 51 female survivors and members of their households in Vihiga, Migori and Kisumu Counties. Other stakeholders were also interviewed for the purpose of this documentation namely; local and national authorities, civil society organisations, and international NGOs.

On the basis of these investigations, FIDH and KHRC documented various forms of election-related violence, including sexual violence, in the form of rape, attempted rape, gang rape, and sexual assault committed mostly by State agents in these counties considered to be opposition strongholds.

“Before I knew it, they had robbed me. A different officer came to me and raped me. My daughters who had run away started screaming that they are raping our mother! The bodaboda [motorbike] riders came to our help and started throwing stones on the roof. The police officers feared and ran away. But before they left, they raped the four of us (two of my workers, an elderly lady and myself)”, said a survivor in Migori County.

Our organisations' follow-up with victims and members of their households after the elections also helped to ascertain serious long-term consequences at the physical, social, economic, and political levels. Also, the recurrence of these violations and the impunity mostly enjoyed by their perpetrators have exacerbated the mistrust of certain populations towards political actors and national authorities as the following survivor’s statement show:

“Sometimes I think why it is that, when voting time comes, women suffer. In 1997, I was young. When they voted, people fought. In 2007, 2013, 2017. Why should we keep on voting? There’s no need to vote. Why small people suffer, why not big people, they make people fighting and then run away. Is it of value for people to vote? And if it is, why should people fight? They lose life for no reason just because someone wants a seat. I don’t value voting in Kenya”, from a survivor in Vihiga County.

The findings clearly indicate that measures taken by the State at local and national levels to prevent and respond to sexual violence during election seasons were insufficient. Kenyan authorities failed to respect their obligations to prevent, protect, investigate, prosecute, and provide for meaningful reparations for victims of sexual crimes committed during the 2017 election.

Failure to conduct independent and effective investigations and prosecutions with regard to sexual and gender-based violence (SGBV) was recently recognised in a highly anticipated court decision in Kenya, related to a petition filed in 2013 on sexual violence committed during the 2007 election and its aftermath. As a consequence of the State's violations of its obligations, several of the victims who had signed on to the case as co-petitioners were each awarded four million Kenyan shillings (approximately USD 36,000) as general damages. Our organisations welcomed this decision but recall that serious gaps in the fight against impunity remain with regard to sexual violence committed in the context of elections in Kenya.

With just a year to go before Kenya’s next elections, and considering the history of violence, including sexual violence, around elections in the country since the 1990s, there is an urgent need for national and local authorities to finally and adequately respond to the demands for justice of survivors of sexual violence, but also to put in place specific measures to combat their recurrence in the run-up to the general elections

“What will they do to make sure 2022 elections are different? They saw this issue is recurrent, it happened in 2007, 2013 and 2017. What are the measures the Government will take? It’s the women who vote mostly, and it’s the women who suffer. I want justice and compensation”, declared a survivor in Kisumu County.

Our organisations intend to continue their joint action in favour of the prevention of and fight against impunity for sexual violence, in particular by calling on the authorities and political actors to place these issues at the heart of the debate during the forthcoming election period, and by making the voices of survivors heard about the consequences and impact of these violations on their lives and on society as a whole. We urge national and local authorities to provide accountability and adequate prevention, protection from, and response to sexual violence. A more detailed report on these findings and the recommendations of our organisations will follow shortly.

Press contact:

KHRC: Moses Gowi

Kenya Human Rights Commission

Contact: +254729752804

mgowi@khrc.or.ke

FIDH: Eva Canan

Contact: +33 6 48 05 91 57

ecan@fidh.org