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

Through this report, This monitoring exercise between April and July 2020 so far, including media reports later in August to October, indicate that both the COVID-19 pandemic and response measures have created social and economic disruptions that threaten the livelihoods and human rights of thousands of vulnerable populations and the general public.  This report is, therefore, a compilation of the KHRC grassroots partners’ findings, which are on the human rights impact of COVID-19 and the respective responses, from 27 of the 47 Counties in Kenya.

Our monitoring was based on the national and international human rights obligations of the government and other actors as enshrined in the Constitution of Kenya and other international legal instruments. The comprehensive statement issued by the African Commission on Human and Peoples’ Rights (ACPHR, or the Banjul Charter) on a human rights-centred approach to the COVID-19 and those by the different UN mechanisms remain instrumental.

Within the monitoring frame, the KHRC had four (4) of topical issues for human rights investigation. These were:

1. Levels of Preparedness and Nature of Responses to the Pandemic at all levels;
2. Excesses or responses by the State Security and Administrative Agencies;
3. Inclusion and Accountability in the Key Decisions and Facilities related to COVID-19;
4. Any other emerging human rights and governance issues.

MAIN FINDINGS

On the levels of preparedness and nature of responses to the pandemic at all levels, the KHRC found out that it remains wanting to owe to the lack of political and technical capacities by both the national and County governments to make the requisite decisions towards the management, suppression and containment of the virus and its impacts to the vulnerable populations.

Moreover, different State and non-State actors (including the citizenry, civic and corporate actors) did not have the necessary protection and support systems against the novel, contagious virus. Thus infections continued unabated while responses led to many violations and exposures to the public, and more so the most vulnerable groups, as documented below.

The response could be summarized as ‘muddling through’. For example, the measures were taken around contact tracing, isolation and quarantine which were initially punitive have shifted with the government now embracing home-based care.

With regard to the response of State security and administration agencies, there is a need for an independent audit of the conduct of state agencies, particularly the security apparatus and how they enforced COVID-19 related regulations. Those found to have taken advantage of their positions to violate rights must be held accountable.

In this case, the Independent Policing Oversight Authority (IPOA), the Directorate of Criminal Investigations (DCI) and the Ethics and Anti-Corruption Commission (EACC) should commence investigations into the alleged acts of killings and violence; laxity in the provision of security, bribery and extortion. Finally, there is a dire need for thorough training and exposure of our security agencies on accountable and human- rights-centred policing, crowd control and emergency response mechanisms and strict enforcement of that code of conduct.

On the matter of inclusion and accountability in making key decisions, the KHRC found out that most of the counties have established a COVID-19 coordination team. However, most of these teams have no representation from civil society and the public. What this means is that both the civil society and the public are not involved in the government’s decision making process on issues related to COVID-19. As a result of non-inclusion, the civil society and the public has been unable to access relevant information related to the pandemic and thus unable to effectively hold the respective County government to account.

In most Counties, members of the public have not been involved in decision making by both the national and county governments. Actually, until now, the people are not aware of the total amount of funds received by their County governments towards the fight against COVID-19, neither do they know how the received funds have been utilized.

With special mention, under the prevention, control and suppression of COVID-19, we notice the use of any person without any distinction to nationality or lack of it. Whereas other laws on health also don’t make such distinction, administrative practice does as most people are required to identify themselves before accessing health services. The stateless and the indigent persons suffered enormously.

The COVID-19 pandemic has, therefore, exacerbated the inequalities the poor and marginalised face in accessing justice. From KHRC’s violations portal, 70% of the claimants who reported incidences of police brutality, evictions and sexual and gender-based violence to state agencies indicated that their matters had not been attended to and/or resolved thus the reason they approached KHRC.

Finally, on the matter of other emerging issues, this report documents how the COVID-19 pandemic has forced most businesses and companies to shut down. Major organizations and businesses have had to adjust to working remotely with a majority of others cutting down their expenses through retrenchment of workers. The hospitality industry has been one of the most affected with most businesses forced to close down completely. Another sector that has been hugely affected is the informal sector which includes casual labourers.

Further, the excessive and persistent worry about the pandemic has caused stress which results in uncertainties such as fear of contagion, job security and health. This has led to depression and in some cases suicide.

Moreover, COVID-19 pandemic forced governments and individuals to take different measures to reduce the spread of the virus. One such measure was closing down schools and other institutions of learning. However, this has introduced another unique pandemic. According to some public, media and government sources, during the months of lockdown, over 100, 000 Kenyan teenage girls became pregnant.

MAIN RECOMMENDATIONS

Beginning latter matter of emerging issues, on teen pregnancies, the government should prioritize alternative options such as part-time classes to encourage young parents to continue with their education. There should be more social and economic support to the young parents and awareness on sex education and the necessary protection measures. It's also a time to reconsider the existing sexual and reproductive health policies and program for their responsiveness.

Further, the government should prioritize the most affected sectors such as tourism and casual sectors by introducing a stimulus programme. Innovation should be nurtured and the government should prioritize engaging local vendors and labor for all projects before importing it, this helps create employment by tapping the local talent.

Also, the government should implement recommendations by the Mental Health Taskforce by declaring mental health a National Emergency. There should be measures to address the impacts of COVID-19 and the mental health concerns of the different populations at all levels in society. State and non-state actors need to provide adequate psycho-social supports to the different categories of populations impacted by the virus and responses across the board.

On the matter of inclusion and accountability in making key decisions, NCAJ should put in place mechanisms to ensure affordable and effective access to justice for the poor and the general public and continuous protection of the staff involved in the criminal justice chain at this time of the pandemic. The National Criminal Justice Reforms Committee of NCAJ needs to expedite the formulation, adoption and implementation of the expected legal, policy and administration changes with the criminal justice system in Kenya.

Further, still the government should immediately cease all evictions aimed at different communities during the COVID-19 period. Also, develop mechanisms for supporting and compensating the communities impacted by all displacements and evictions (from the historical to the currents ones). Moreover, there is a need to urgently initiate public and policy conversations to create more understanding of the phenomenon of displacements, the impacts of COVID-19 and the necessary governance frameworks. This should be accompanied by ensuring all the policies and resources dedicated to COVID-19 responses address the pertinent needs and protects the rights of IDPs among other vulnerable communities.

Further, on accountability, there is a need to create a more effective and representative COVID-19 Emergency Response Fund/ Agency, operating both at the national and county levels.  Further, there is an urgent necessity to also foster human rights-based response frameworks. Such would ensure that all actions by the state and non-state actors will protect and promote the rights of the people involved and negatively impacted.

There is the necessity to continuously enforce and provide adequate hygiene and safety essentials such as masks and hand sanitizers to all vulnerable populations at no cost, especially now that billions of Ksh have been granted to the GoK, in the wake of the phased opening of schools at all levels.

In the work front, the government and other actors should ensure companies adhere to the existing laws and that COVID-19 response mechanisms do not push workers further into further destitution. Further, businesses must ensure the health and safety of workers, especially those with significant workplace intervention such as those in the spray department. Finally, employers must ensure access to healthcare and protective equipment for their employees in line with Section 101 (1) of the Occupational Safety and Health Act.

Finally, the government and other actors should put measures in place to measures to offer the requisite support and protection to the old people, persons with disabilities, the poor, children and women whose exposure to violence among other injustices has been increased in the context of COVID-19. Moreover, there should be additional measures to ensure their inclusion.

Nairobi,

10^th December 2020.

Press contact

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

Main Findings

First, court actions were instituted in the protection of the Civil Society Organizations (CSOs) registered as Non-Governmental Organizations (NGOs) where the National NGOs Coordination Board felt like has unfettered powers to make arbitrary and capricious decisions.

While the two and four incidents of respective attacks on the Evans Kidero Foundation(EKF) and Kenya Human Rights Commission(KHRC) represents very systematic targeting, the cases of Muslim for Human Rights(MUHURI)  and HAKI Africa presents the most punitive and callous attacks, ending with the deregistration of the organizations, freezing of their bank accounts and suspension of their insurances.

Moreover, the cases of the EKF, Key Empowerment Foundation Kenya and Kalonzo Musyoka Foundation (KMF) presents a politically motivated attack targeting the initiatives of families associated with the opposition between 2003 and 2007.

Further, court actions were instituted in the protection of the civil society organizations registered as companies limited by guarantees to which the NGOs, Coordination Board zealously wanted to extend its irregular jurisdiction under the wrong assumptions that it has a sweeping mandate over every civic organization irrespective of the diverse regimes governing them. The cases of the African Centre for Open Governance (AfriCOG), International Federation of Electoral Systems (IFES) and Katiba Institute (KI) presents this situation.

In addition, KHRC also went to court to protect various Human Rights Defenders (HRDs) who are arbitrarily arrested for allegedly being involved in illegal assemblies or violently targeted or killed for being steadfast in their struggles for justice and accountability in the country. The arrest of Happy Olal and colleagues (in 2016) and the killing of Willie Kimani and two others (in 2016) are the unfortunate cases in point.

Further still, we petitioned courts in furtherance of creating an enabling environment for CSOs, media houses, bloggers and journalists. It is on that basis that the cases advancing the commencement of the Public Organizations (PBO Act) and challenging such repressive policies like the Kenya Information and Communication Act (KICA) and surveillance gadgets proposed by the  Communication  Authority of Kenya(CCK) against the telecommunication companies in Kenya was instituted.  This also entails the protection of the freedoms of association by the sexual minorities in Kenya. Thus the case seeking the registration of the National Gay and Lesbian Human Rights Commission (NGLHRC- between 2013 to date) is historical.

In most of these above cases, the NGOs Coordination Board was the key duty bearer targeted for its unfair administrative actions. Other agencies targeted for directed by the Board or directly culpability includes the Kenya Revenue Authority (KRA), Central Bank of Kenya (CBK), The National Police Service (NPS), Inspector General of Police (IG), Attorney General (AG), and CAK among others.

Courtesy of our progressive Constitution and judicial activism enshrined within both the Constitution and the Judiciary, the court have made very progressive decisions which shaped the existence of the affected organization or reversed repugnant legal and administrative actions.

Evidently, since 2013, the clawing back the gains of the Constitution and attendant laws of Kenya has been the hallmark of Jubilee government. The cases demonstrated above have particularly shown that the government, especially the executive arm through the NGOs Coordination Board and other agencies, has deliberately, blatantly and with impunity, disregarded the very tenets of democracy as enshrined in the Bill of Rights of the Constitution.

Nairobi,

10^th December 2020.

Press contact

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