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

BACKGROUND

The Kenya Human Rights Commission (KHRC) and Ndula Resource Centre (NRC) have been in a campaign, advocating for justice for communities and workers that have suffered adverse human rights impacts occasioned by Kakuzi Limited since 2003. Kakuzi, a subsidiary of Camellia PLC based in the UK, has been alleged over the years to have committed atrocities and malpractices ranging from: killings, rape, and other forms of sexual and gender-based violence committed by its guards causing grievous bodily harm, abominable labour injustices, wanton violence, bad corporate governance and gross, historical land injustices which have dispossessed more than 13 neighbouring communities[1] within Murang’a and the adjacent counties.

Despite protracted advocacy by the KHRC, NRC and Centre for Research on Multinational Corporations (SOMO), employing practically every strategy in the book, Kakuzi would not budge. KHRC’s last straw on the camel’s back was the involvement of Leigh Day, a leading UK law firm, to bring a suit in the English courts against Camellia for the egregious human rights violations.

It is this 17 year-campaign that has resulted in a huge reparative win for the victims of Kakuzi’s abuses. Camellia has finally bowed out and offered a settlement that will see the company part with more than 1 billion Kenya shillings. This is towards compensation for 85 claimants as well as legal fees since the case was filed in London. The company publicly announced on 11^th February 2021 that it has reached an innovative and mutually beneficial resolution with regard to the claims against Kakuzi at settlements costing up to 4.6 million British Pounds (Kshs 694 million). These expenses are in addition to legal expenses that were earlier announced in October 2020 totalling Kshs 500 million. The claims ranging from rape, killings, sexual violence and assault by Kakuzi security guards were brought to the English courts in June 2020 by 85 Kenyan victims through the Leigh Day, with support of the Kenya Human Rights Commission and Ndula Resource Centre.

TOO LITTLE TOO LATE

In addition to the individual compensation, Kakuzi, working closely with Camellia has instituted other measures that the aggrieved communities consider too little too late and incapable of resolving the outstanding issues.

Firstly, Kakuzi will develop an Operational Grievance Mechanism (OGM) as a way of resolving grievances internally. However, the proposed OGM has many gaps, 1) it is limited to the discretion of the company, 2) there is no urgency by Kakuzi to implement it, 3) it is not premised on the Constitution of Kenya and other governance and human rights frameworks, 4) it is purely an internal framework and therefore fails to meet the required thresholds to hold the company accountable for gross violations.

Secondly, the company will establish a Technical Working Group (TWG) to survey and demarcate land which has previously been donated by itself to the communities. Led by a licensed surveyor, the TWG will benefit from the involvement of a county surveyor, the National Land Commission and representatives from the national government. Not surprising, the affected communities have been left out of this proposed mechanism. This offends Article 10 of the Constitution of Kenya that provides for public participation as one of the national values and principles of governance.

Thirdly, Kakuzi has proposed a raft of social development initiatives ranging from the construction of two community social centres, the building of charcoal kilns for the production of charcoal and engagement of safety marshals to patrol private roads and footpaths. We welcome these as innovative corporate social responsibility (CSR) initiatives. However, they do not constitute a comprehensive development framework for reparative settlement.

We further welcome the decision by Kakuzi to implement a Human Rights Defenders (HRDs) Policy. We, however, demand that the process of developing the HRDs policy be open to wider stakeholder consultations. The policy must also be in compliance with frameworks for the protection of HRDs such as the UN Declaration for Human Rights Defenders.

Relatedly, the proposed human rights impact assessment is a welcome move but is hugely insufficient in the absence of a fundamental paradigm shift in the attitude, behaviour and culture of Kakuzi. What Kakuzi needs is not a plethora of human rights tools but a deliberate shift in the manner it views and relates with its workers and host communities.

UNRESOLVED CLAIMS

1. PUBLIC APOLOGY

It is preposterous that Camellia (and Kakuzi by extension) has failed to offer a public apology for the egregious violations suffered by the communities and workers living in and around Kakuzi. An apology and guarantee for non-repetition are the bedrock of a compensation framework such as the one that Camellia has invoked. It is therefore defeatist for the company to decline to offer a public apology. It is, however, not surprising that Kakuzi is unwilling to offer the apology going by its behaviour in October 2020 where the company denied all claims levelled against it, claiming that victims had been incited and coached by human rights organisations. In its statement issued on 11^th February, Kakuzi is publicly unapologetic when it says that it is not a party to the litigation or the settlement and that it does not know the identities of the claimants making it very difficult to hold any individual accountable. Kakuzi must stop playing mind games with Kenyans. The company is fully aware that the UK Court upheld an Anonymity Order with a view to protecting victims from possible reprisal from Kakuzi.

2. SURRENDER OF ROADS

Kakuzi has begrudgingly surrendered three roads for motorable vehicle access by the communities against the six roads that communities had demanded. The surrender comes with inconceivable conditions to the extent that Kakuzi retains the arbitrary self-imposed power to withhold access for maintenance of the roads and fielding of safety marshals to improve safety and security.

The roads that Kakuzi proposes to open are Miltons Ridge to D424, Kakuzi Hills Road and Kakuzi Primary School to Ithanga-Kakuzi Hills.

The community had demanded the opening of the following roads: 1) Kitito-Munyu-Kakuzi Hills Rural road (2315), 2) Kinyangi-Kaguru-Mathimbiriri/Gaichanjiru-Kakuzi Hills road, 3) Murram/Matungulu-Kihato-Kakuzi Hills road, 4) B67 Kilimambogo-Makuyu-Kakuzi Primary School-Sunset-Kakuzi Hills road, 5) E1577 Gathungururu-Gatoromera-Thangira road, and 6) Masitima-Mangamate-Money road.

Noting that Kakuzi has no mandate to maintain roads nor has its capacity to offer security and safety on such roads, we demand the immediate withdrawal of the ludicrous conditions.  We also note with concern that communities, such as Kinyangi and Gikono-Kangangu, that have been at the forefront in calling out Kakuzi have been deliberately left out of the road settlement. Kakuzi must cease and desist from incubating further acrimony by victimizing and relegating communities that have rebutted the company’s high-handedness in the past.

3. WITHDRAWAL OF INSIDIOUS COURT CASES

The affected communities have previously demanded, as a pre-condition to an out-of-court settlement, that Kakuzi withdraws all the insidious cases instigated against aggrieved workers, host communities and other affected groups. Specifically, the communities demanded that a case (JR 94/2019) challenging the implementation of an award granted by the National Land Commission (NLC) on 7^th February 2019, be withdrawn with immediate effect. The orders granted by the NLC required Kakuzi to surrender ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate. The second matter is a constitutional petition (CPET 255/2018) that challenges the constitutional mandate of the NLC to determine historical land injustices. Instead of immediately withdrawing these cases, Camellia indicates in its Settlement of Claims in Kenya that a Technical Working Group being instituted at Kakuzi will not have any involvement in the consideration or determination of any issues the subject of proceedings before the NLC, the Kenyan courts or any other decision-making tribunal of competent jurisdiction.

4. OUTSTANDING LAND CLAIMS

Kakuzi has declined to address the unsettled land claims. It cannot be gainsaid that the cause of human rights violations experienced by communities living in and around the company is the unresolved land claims.  And as if in complete mockery of a community that Kakuzi pushed to the rocky hills known as Milimani, the company now plans to re-resurvey the Ithanga-Kakuzi hills to complete its past donation of that land. The Milimani area was condemned by a Ministry of Lands and Resettlement Taskforce Report of 29^th June 2004 on the Status of Kakuzi Squatters as being un-arable, harsh, hilly, rocky and of low agricultural potential and hence difficult for settlement operations. It is on these very hills that Kakuzi now wants the government to complete the settlement for the Milimani community.

We call the state and non-state actors below whose laxity over time has entrenched the culture of impunity in Kakuzi and other corporate entities in Kenya.

Our relentless demands and actions moving forward:

1. WE CALL UPON the Murang’a County Assembly to ensure that Kakuzi land leases are not renewed until all claims on historical land injustices are resolved.
2. WE DEMAND 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 a demonstrable change in attitude and behaviour on the part of Kakuzi.
3. WE SHALL ENGAGE the national Parliament and the Senate for investigation of all pending claims and institution of appropriate accountability measures against Kakuzi.
4. WE DEMAND THAT the National Land Commission implements its decision of February 2019 directing the surrender by Kakuzi of ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate.
5. WE SHALL continuously monitor the behaviour of Kakuzi to ensure non-repetition of violations, non-discrimination of workers and communities especially those that have been involved in calling out the company.
6. WE CALL UPON the certification bodies that work around Kakuzi to be more vigilant and inclusive in assessing the company’s compliance with the set standards

-END-

Signed by:

The Kenya Human Rights Commission

Ndula Resource Centre

14^th February 2021.

Prof. Makau Mutua, Chair, KHRC Board of Directors.

Davis Malombe, Ag  Executive Director.

Prof. Makau Mutua, Chair, KHRC Board of Directors.

Davis Malombe, Ag  Executive Director.

March 03, 2021.

BACKGROUND

The Kenya Human Rights Commission (KHRC) and Ndula Resource Centre (NRC) have been in a campaign, advocating for justice for communities and workers that have suffered adverse human rights impacts occasioned by Kakuzi Limited since 2003. Kakuzi, a subsidiary of Camellia PLC based in the UK, has been alleged over the years to have committed atrocities and malpractices ranging from: killings, rape, and other forms of sexual and gender-based violence committed by its guards causing grievous bodily harm, abominable labour injustices, wanton violence, bad corporate governance and gross, historical land injustices which have dispossessed more than 13 neighbouring communities[1] within Murang’a and the adjacent counties.

Despite protracted advocacy by the KHRC, NRC and Centre for Research on Multinational Corporations (SOMO), employing practically every strategy in the book, Kakuzi would not budge. KHRC’s last straw on the camel’s back was the involvement of Leigh Day, a leading UK law firm, to bring a suit in the English courts against Camellia for the egregious human rights violations.

It is this 17 year-campaign that has resulted in a huge reparative win for the victims of Kakuzi’s abuses. Camellia has finally bowed out and offered a settlement that will see the company part with more than 1 billion Kenya shillings. This is towards compensation for 85 claimants as well as legal fees since the case was filed in London. The company publicly announced on 11^th February 2021 that it has reached an innovative and mutually beneficial resolution with regard to the claims against Kakuzi at settlements costing up to 4.6 million British Pounds (Kshs 694 million). These expenses are in addition to legal expenses that were earlier announced in October 2020 totalling Kshs 500 million. The claims ranging from rape, killings, sexual violence and assault by Kakuzi security guards were brought to the English courts in June 2020 by 85 Kenyan victims through the Leigh Day, with support of the Kenya Human Rights Commission and Ndula Resource Centre.

TOO LITTLE TOO LATE

In addition to the individual compensation, Kakuzi, working closely with Camellia has instituted other measures that the aggrieved communities consider too little too late and incapable of resolving the outstanding issues.

Firstly, Kakuzi will develop an Operational Grievance Mechanism (OGM) as a way of resolving grievances internally. However, the proposed OGM has many gaps, 1) it is limited to the discretion of the company, 2) there is no urgency by Kakuzi to implement it, 3) it is not premised on the Constitution of Kenya and other governance and human rights frameworks, 4) it is purely an internal framework and therefore fails to meet the required thresholds to hold the company accountable for gross violations.

Secondly, the company will establish a Technical Working Group (TWG) to survey and demarcate land which has previously been donated by itself to the communities. Led by a licensed surveyor, the TWG will benefit from the involvement of a county surveyor, the National Land Commission and representatives from the national government. Not surprising, the affected communities have been left out of this proposed mechanism. This offends Article 10 of the Constitution of Kenya that provides for public participation as one of the national values and principles of governance.

Thirdly, Kakuzi has proposed a raft of social development initiatives ranging from the construction of two community social centres, the building of charcoal kilns for the production of charcoal and engagement of safety marshals to patrol private roads and footpaths. We welcome these as innovative corporate social responsibility (CSR) initiatives. However, they do not constitute a comprehensive development framework for reparative settlement.

We further welcome the decision by Kakuzi to implement a Human Rights Defenders (HRDs) Policy. We, however, demand that the process of developing the HRDs policy be open to wider stakeholder consultations. The policy must also be in compliance with frameworks for the protection of HRDs such as the UN Declaration for Human Rights Defenders.

Relatedly, the proposed human rights impact assessment is a welcome move but is hugely insufficient in the absence of a fundamental paradigm shift in the attitude, behaviour and culture of Kakuzi. What Kakuzi needs is not a plethora of human rights tools but a deliberate shift in the manner it views and relates with its workers and host communities.

UNRESOLVED CLAIMS

1. PUBLIC APOLOGY

It is preposterous that Camellia (and Kakuzi by extension) has failed to offer a public apology for the egregious violations suffered by the communities and workers living in and around Kakuzi. An apology and guarantee for non-repetition are the bedrock of a compensation framework such as the one that Camellia has invoked. It is therefore defeatist for the company to decline to offer a public apology. It is, however, not surprising that Kakuzi is unwilling to offer the apology going by its behaviour in October 2020 where the company denied all claims levelled against it, claiming that victims had been incited and coached by human rights organisations. In its statement issued on 11^th February, Kakuzi is publicly unapologetic when it says that it is not a party to the litigation or the settlement and that it does not know the identities of the claimants making it very difficult to hold any individual accountable. Kakuzi must stop playing mind games with Kenyans. The company is fully aware that the UK Court upheld an Anonymity Order with a view to protecting victims from possible reprisal from Kakuzi.

2. SURRENDER OF ROADS

Kakuzi has begrudgingly surrendered three roads for motorable vehicle access by the communities against the six roads that communities had demanded. The surrender comes with inconceivable conditions to the extent that Kakuzi retains the arbitrary self-imposed power to withhold access for maintenance of the roads and fielding of safety marshals to improve safety and security.

The roads that Kakuzi proposes to open are Miltons Ridge to D424, Kakuzi Hills Road and Kakuzi Primary School to Ithanga-Kakuzi Hills.

The community had demanded the opening of the following roads: 1) Kitito-Munyu-Kakuzi Hills Rural road (2315), 2) Kinyangi-Kaguru-Mathimbiriri/Gaichanjiru-Kakuzi Hills road, 3) Murram/Matungulu-Kihato-Kakuzi Hills road, 4) B67 Kilimambogo-Makuyu-Kakuzi Primary School-Sunset-Kakuzi Hills road, 5) E1577 Gathungururu-Gatoromera-Thangira road, and 6) Masitima-Mangamate-Money road.

Noting that Kakuzi has no mandate to maintain roads nor has its capacity to offer security and safety on such roads, we demand the immediate withdrawal of the ludicrous conditions.  We also note with concern that communities, such as Kinyangi and Gikono-Kangangu, that have been at the forefront in calling out Kakuzi have been deliberately left out of the road settlement. Kakuzi must cease and desist from incubating further acrimony by victimizing and relegating communities that have rebutted the company’s high-handedness in the past.

3. WITHDRAWAL OF INSIDIOUS COURT CASES

The affected communities have previously demanded, as a pre-condition to an out-of-court settlement, that Kakuzi withdraws all the insidious cases instigated against aggrieved workers, host communities and other affected groups. Specifically, the communities demanded that a case (JR 94/2019) challenging the implementation of an award granted by the National Land Commission (NLC) on 7^th February 2019, be withdrawn with immediate effect. The orders granted by the NLC required Kakuzi to surrender ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate. The second matter is a constitutional petition (CPET 255/2018) that challenges the constitutional mandate of the NLC to determine historical land injustices. Instead of immediately withdrawing these cases, Camellia indicates in its Settlement of Claims in Kenya that a Technical Working Group being instituted at Kakuzi will not have any involvement in the consideration or determination of any issues the subject of proceedings before the NLC, the Kenyan courts or any other decision-making tribunal of competent jurisdiction.

4. OUTSTANDING LAND CLAIMS

Kakuzi has declined to address the unsettled land claims. It cannot be gainsaid that the cause of human rights violations experienced by communities living in and around the company is the unresolved land claims.  And as if in complete mockery of a community that Kakuzi pushed to the rocky hills known as Milimani, the company now plans to re-resurvey the Ithanga-Kakuzi hills to complete its past donation of that land. The Milimani area was condemned by a Ministry of Lands and Resettlement Taskforce Report of 29^th June 2004 on the Status of Kakuzi Squatters as being un-arable, harsh, hilly, rocky and of low agricultural potential and hence difficult for settlement operations. It is on these very hills that Kakuzi now wants the government to complete the settlement for the Milimani community.

We call the state and non-state actors below whose laxity over time has entrenched the culture of impunity in Kakuzi and other corporate entities in Kenya.

Our relentless demands and actions moving forward:

1. WE CALL UPON the Murang’a County Assembly to ensure that Kakuzi land leases are not renewed until all claims on historical land injustices are resolved.
2. WE DEMAND 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 a demonstrable change in attitude and behaviour on the part of Kakuzi.
3. WE SHALL ENGAGE the national Parliament and the Senate for investigation of all pending claims and institution of appropriate accountability measures against Kakuzi.
4. WE DEMAND THAT the National Land Commission implements its decision of February 2019 directing the surrender by Kakuzi of ALL public utilities on their land including schools, markets, police stations, hospitals, public roads of access, wayleaves and easements to national and county government as appropriate.
5. WE SHALL continuously monitor the behaviour of Kakuzi to ensure non-repetition of violations, non-discrimination of workers and communities especially those that have been involved in calling out the company.
6. WE CALL UPON the certification bodies that work around Kakuzi to be more vigilant and inclusive in assessing the company’s compliance with the set standards

-END-

Signed by:

The Kenya Human Rights Commission

Ndula Resource Centre

14^th February 2021.

The policy briefs seek to also prioritize reform measures that can assist the criminal justice system to attain focus on its core mandate – which should be tackling the more serious criminal offences of concern to citizens and that have the most deleterious effect on the nation.

Through this policy brief, KHRC has identified that the most urgent attention is drawn to violations that touch on basic guarantees of rights to citizens as per the Bill of Rights. These are the right to life, equality and freedom from discrimination and unequal treatment, the right to dignity of the person, freedom and security of the person, access to information, right of an arrested person, right to a fair hearing, rights of persons detained or held in custody. Given the length, breadth and complexity of the criminal justice system, it is important to consider reform measures that prioritize the rights and freedoms of the most vulnerable in society.

The Kenya Human Rights Commission is therefore focused on putting forward these range of legislative and policy proposals within the criminal justice system with these objectives in mind. The range of proposals seeks to decongest the criminal justice system, secure fundamental rights and freedoms of the most vulnerable and indigent and acknowledge rights of intersex persons who live among us and have suffered historical discrimination and push for attention to the most serious crime of highest concern.

Nairobi,

10^th December 2020.

Press contact

Moses Gowi: +254782 352527, mgowi@khrc.or.ke